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Mr. BROWN. (1) of (d) is talking about one article or other contribution to a copyrighted collection or a periodical issue to our proposed amendment. I think that is the confusion.

I was speaking from the amendment. Senator BURDICK. You were saying this idea that you cannot copy where it is available elsewhere, that you would agree that it would apply if it was a total work or a substantial part of a total work. Mr. BROWN. Yes. Senator BURDICK. That is all. Senator McCLELLAN. Counsel, do you have any questions? Mr. BRENNAN. Yes, just one or two question, Mr. Chairman.

Mr. Brown, I would like to come back to Senator Burdick's illustration about a copy of a single page on snakes. You responded to that solely in terms of section 108 of the bill.

Would you answer Senator Burdick's question taking the bill as a whole, including section 107 and this subcommittee's interpretation of fair use?

Mr. Brown. I would say that apart from what change is in the process of being made in the concept of fair use by pending court cases which we must always except out because this process is going on independently, that would probably be held to be a proper activity within fair use under 107.

Mr. BRENNAN. So your answer to Senator Burdick, then, is yes, it could do what he indicated.

Mr. Brown. I would say probably, Senator, but please bear in mind that fair use is a defense meaning that if somebody comes and sues you for doing it, you are then entitled to raise a defense to show that you were within the law in what you did. We still face the problem of interpretation on the part of the librarian who has to decide whether what he is doing is so totally, clearly all right that he is not going to be sued, or if he is sued, that he can afford to defend, and that defense will probably help him win it.

Senator McCLELLAN. In other words, you think that the fair use requirement is something that you cannot determine, the librarian cannot determine whether he comes within the purview of fair use when he performs or makes available copies, that he is always subject to maybe making a mistake that would make him liable?

Mr. BROWN. That is right, Mr. Chairman.

Senator McCLELLAN. You do not know how to interpret fair use in every instance.

Mr. Brown. I would think, Mr. Chairman, in view of the fact that it has been the subject that has been given considerable consideration by this committee for some time, and still is, that the librarian would consult counsel and would ask if can you do this, and they might establish some kind of ground rules as to what they think they can or cannot do, but he would not have a clear answer without legal advice.

Senator McCLELLAN. I guess you also agree that it is very difficult, the whole subject is very complex, and it is most difficult to provide even by rules, regulation, or even by statute, clarification about which there could not be different interpretations.

Mr. Brown. That is right, Mr. Chairman.
Senator McCLELLAN. It is very difficult, it seems to me.

Mr. Brown. It is in very large measure, for that reason, that we stress the great need of libraries to help clear that.

Senator McCLELLAN. But we have to go as far as we can toward making it certain, as far as what we can do and we cannot do.

Mr. Brown. Yes, sir. It is an important that the bill go as far as it can to make it clear and certain that libraries can make a single photocopy of an entire journal article, for example, or of small portions of works for users as they have always done.

[The prepared statements of Stephen A. McCarthy and Philip B. Brown on behalf of the Association of Research Libraries follow:

STATEMENT OF STEPHEN A. McCARTHY, EXECUTIVE DIRECTOR,

ASSOCIATION OF RESEARCH LIBRARIES Mr. Chairman, my name is Stephen McCarthy. I am Executive Director of the Association of Research Libraries, an organization of the principal university and research libraries of the country. We appreciate this opportunity to present the views of the Association on the Copyright Revision Bill, S. 1361, and we ask that this statement be made part of the official record.

Mr. Chairman, the Association of Research Libraries wishes to recommend to the Committee an amendment to section 108(d) of S. 1361, in the form in which it was submitted to the staff of the Committee during the past week. A copy is attached to this statement.

Mr. Chairman and members of the Committee, the purpose of the proposed amendment is to ensure by specific legislative language that a customary, long established library service of providing a photocopy for a reader who requests it may be continued without infringement of copyright. Adoption of the amendment would remove the threat of suit against libraries arising out of varying judicial interpretations of what is or is not "fair use.” At the same time this amendment would assure libraries, which are public service agencies largely supported by public funds, that they can and should employ modern technology and methods in serving their readers. It should be emphasized further that this amendment does not seek to encourage or develop a new service. Instead it seeks to assure beyond doubt or question the legality of a traditional service which was not chal. lenged for two generations under the 1909 Copyright Law until a suit was brought by the Williams and Wilkins Company against the National Library of Medicine several years ago.

The opinion of Commissioner Davis of the U. S. Court of Claims in the Williams and Wilkins case brings into question the fair use doctrine as applied to library photocopying. Despite the several criteria of fair use which have been developed by the courts and which are expressed in section 107 of S. 1361, Commissioner Davis apparently disregarded all criteria except one and focused his attention on the loss of potential income by the copyright proprietor. In view of this opinion it is apparent that fair use can no longer be considered adequate assurance for the continuation of customery library services. At best, fair use is a de. fense in case of a suit. The services of libraries to their readers are of sufficient importance to society and to the nation as a whole to make it desirable to remove any doubts about the legality of a long established and much used service.

Section 108 (d)(1) of S. 1361 requires the user to prove or demonstrate to the library that an unused copy is not available from a trade source. How does the ordinary reader do this? How does the library know that he has done it? How does the library evaluate the evidence? Questions such as these and others will inevitably arise, if 108(d) (1) is permitted to remain unchanged in the copyright revision bill. Observance of its requirements will impose a substantial added burden on libraries and on library users and thus will impede access to information. At the very least, this requirement will cause delays and hang-ups in service, at a time when the pressure for prompt service is very great.

While it is true that section 108(d) (1) may not affect the library user who is physically present in the library because he can make a copy for himself on a self-operated copying machine, it will impose a serious handicap on a reader from a distant library who is seeking to obtain library materials through interlibrary loan. This reader will be dependent on the staff of the library from which the loan is requested. The requirements placed on the reader and the library by this section would be in many cases result in denial of the request because compliance with the request might constitute an infringement of copyright and be subject to a suit for damages. It is clear that 108(d) (1) would thus have the effect of penalizing the user who does not have direct, personal, physical access to a large comprehensive library. The number of library users who do not have such access is substantial.

Library support both locally and at the federal level is limited. Appropriate bodies, including the Congress, adopted measures designed to encourage the sharing of library resoucres. This is consistent with traditional library practices. The Revision Bill without the amendment we recommend would raise doubts about the continuation of this practice because photocopying has been one of the accepted ways of sharing scarce library resources.

The requirements of the Bill in its present form would also add substantially to the expenses of libraries because decisions regarding photocopy requests could only be made by highly qualified personnel.

It may be noted further that the copyright laws of most foreign countries contain a specific provision permitting library photocopying for purposes of personal study and research.

I would emphasize that the amendment we recommend refers to a single, i.e., one, photocopy; it applies to one article or item in a periodical, not to the whole issue; and it applies to a complete work, i.e., a book, only if the work is no longer available in book stores.

This amendment does not seek to legalize multiple copying. Libraries are not trying to become publishers; libraries do not wish to photocopy best sellers or complete issues of periodicals.

Revision of the copyright law has been underway for a period of years. In that time, copyright proprietors have repeatedly stated that library photocopying was causing serious financial damages to their enterprises. No evidence to support this contention has been presented. In the absence of evidence, it seems fair to conclude that the damage is not as serious as has been alleged.

For these reasons, the Association of Research Libraries recommends the adoption of the proposed amendment as a means of assuring library users of the continuation of an important service.

Thank you for your attention. Our legal counsel, Mr. Brown, will now discuss briefly some of the legal aspects of library photocopying and the proposed amendment.

AMENDMENT TO COPYRIGHT REVISION BILL, S. 1361 Substitute for section 108(d) the following:

(d) The rights of reproduction and distribution under this section apply to a copy of a work, other than a musical work, a pictorial graphic or sculptural work, or a motion picture or other audiovisual work, made at the request of a user of the collections of the library or archives, including a user who makes his request through another library or archives, but only under the following conditions:

(1) The library or archives shall be entitled, without further investigation, to supply a copy of no more than one article or other contribution to a copyrighted collection or periodical issue, or to supply a copy or phonorecord of a similarly small part of any other copyrighted work.

(2) The library or archives shall be entitled to supply a copy or phonorecord of an entire work, or of more than a relatively small part of it, if the library or archives has first determined, on the basis of a reasonable investigation that a copy or phonorecord of the copyrighted work cannot readily be obtained from trade sources.

(3) The library or archives shall attach to the copy a warning that the

work appears to be copyrighted. and renumber section 108(d) (2) to make it 108(d) (4).

STATEMENT OF PHILIP B. BROWN, ATTORNEY FOR THE ASSOCIATION OF RESEARCH

LIBRARIES Mr. Chairman, members of the Committee, my name is Philip B. Brown. I am a partner in the Washington law firm Cox, Langford & Brown, counsel to the Association of Research Libraries. I appreciate this opportunity to appear before you with the President and Executive Director of ARL and the Chairman of its Copyright Committee. My statement supplements that of Dr. McCarthy with emphasis on recent legal developments bearing on the status of library photocopying under existing law and under the pending bill.

The major legal development on this subject in recent years is, of course, the case Williams & Wilkins v. The United States, pending before the judges of the Court of Claims following a report of the Commissioner filed on February 16, 1972. The case has been briefed and argued to the Court and is awaiting decision. The Commissioner held that the photocopying of entire articles from medical journals by the National Institutes of Health and the National Library of Medicine at the request of doctors and medical researchers constituted infringement of copyright and he recommended that the Court conclude, as a matter of law, that plaintiff is entitled to recover reasonable and entire compensation for infringement of copyright, the amount to be determined in further proceedings.

Subject to the pending decision of the Court, the main effect of the Commissioner's report on library photocopying is twofold, first to rule that such photocopying as was involved in the case constitutes a violation of the copyright proprietor's rights under 17 U.S.C. $ 1, and, secondly, to rule that such copying is not protected by the doctrine of "fair use." If the Commissioner's report should be adopted by the Court, the decision would constitute the first judicial interpretation of the 1909 Act as it applies to library photocopying and an interpretation contrary to both the libraries' understanding of the meaning of the 1909 Act and to the previously unchallenged long-standing photocopying practices of libraries.

These new developments underscore the importance of the libraries' request that Congress adopt a specific amendment to Section 108(d) of the pending Copyright Revision Bill authorizing a library to make a single photocopy of an entire journal article at the request of a user without such a practice constituting an infringement of copyright. Prior to Williams & Wilkins it could be argued that if libraries interpreted the 1909 Act to authorize such copying and could point for support to the fact that the publishers had not challenged that interpretation and had even participated in a Gentlemen's Agreement for a period of years which ratified the libraries' practice, there was no need to give the libraries explicit statutory protection on this point since the revision bill did not take away from libraries any rights which they then enjoyed under the 1909 Act. Today, it is no longer possible to assert that position, and the libraries' need for explicit statutory protection for such photocopying is clear.

The amendment to Section 108(d) proposed by the American Library Association and endorsed by the Association of Research Libraries is essential to permit a library to make a copy of an entire journal article for a user. Such an amendment would be fully consistent with the literal wording of all copyright statutes prior to 1909 and fully consistent with the interpretation placed on the 1909 Act by users and publishers alike for a period of 60 years.

In addition to adopting the specific photocopying amendment, we respectfully submit that Congress should also clarify and endorse the application of the doctrine of fair use to library photocopying practices. This is important both because the doctrine had not previously been judicially applied to library photocopying and because the report of the Commissioner in Williams & Wilkins, if allowed to stand, would raise serious doubt whether the doctrine could ever apply to library photocopying of an entire article. The Commissioner determined that the copying involved in NIH and NLM constituted "wholesale” copying, apparently simply because of the large number of individual requesters for each of whom the library made a copy. The Commissioner also referred to the facts that, on rare occasions, the same requester received a second copy at a later date and that the library furnished a copy of the same article to a number of different requesters. If these facts constitute "wholesale" copying, sufficient to deny a library the defense of fair use, it would appear that the defense would not be available to any large library, such as any of the major research libraries of this country, simply because the total number of patrons of each of these libraries would be so numerous as to fall within the Commissioner's term “wholesale," and thus go beyond his interpretation of fair use.

In order to restore the application of fair use to library photocopying consistent with the intent of the bills considered by this Committee over recent years, it is essential that Congress reject the interpretation given to fair use by the Commissioner in the Williams & Wilkins case and that Congress further declare that the long-standing practice of libraries of making a single copy of copyrighted material, including an entire journal article, is within the meaning of fair use in this bill.

Accordingly, there are two changes in the bill which libraries are requesting of this Committee: The first is the specific amendment to Section 108(a) proposed by ALA and ARL. The second is clarification that fair use applies to the normal library practice of making a single photocopy of copyrighted material, including an entire journal article, for a user.

We respectfully submit that these protections are essential to permit libraries to continue to serve the needs of scholars and to make appropriate use of existe ing technological aids in doing so. We submit that there is no evidence of damage to publishers resulting from this practice and that, in fact, the practice promotes subscriptions to journals rather than replacing them. There is certainly no evidence that this practice is driving publishers out of business. Library photocopying deserves continuing protection from Congress. In view of the uncertain state of the law resulting from the Commissioner's report in Williams & Wilkins, the statutory protection should be clear and certain.

The need for clarity and certainty is underscored by the fact that, without the protection of the proposed amendment to Section 108(d), a librarian could well be liable for the extensive damages provided for in Section 504 of the bill. The sentence in Section 504(c) (2) which allows the librarian to prove that "he believed and had reasonable grounds for believing that the reproduction was a fair use under Section 107 ..." is rendered virtually meaningless by the report of the Commissioner in Williams & Wilkins. Without the proposed amendment to the bill, the librarian would undoubtedly refuse to run the risk of rendering the service to the patron—to the great detriment of research and scholarship.

Senator McCLELLAN. Thank you very much.
Call the next witness.

Mr. BRENNAN. The next witnesses are on behalf of the American Library Association, Dr. Edmon Low.

Fifteen minutes have been given to the American Library Association.

Dr. Low, would you identify yourself and counsel for the record, please?

Dr. Low. I am Edmon Low, librarian of New College in Sarasota, Fla., and am chairman of the Copyright Subcommittee of the American Library Association, and with your permission I have asked Mr. North, who is our counsel for ALA, to sit with me to help on any legal problems.

Senator McCLELLAN. Very well.

Dr. Low. In the interest of saving time, and because my statement duplicates to some extent what has been read, I thought it might be better for me to just emphasize a few points that have not been covered and submit my statement for the record.

Senator McCLELLAN. Yes. Your statement will be printed in full in the record.

Now, you may highlight it or supplement it anyway you like.

STATEMENT OF DR. EDMON LOW, LIBRARIAN OF NEW COLLEGE,

SARASOTA, FLA., AND CHAIRMAN, COPYRIGHT SUBCOMMITTEE OF THE AMERICAN LIBRARY ASSOCIATION, ACCOMPANIED BY WILLIAM D. NORTH, ESQ., COUNSEL

Dr. Low. The first observation I have to make is that copyright is not a constitutional right. This is often not understood, certainly understood by attorneys, but often not by the public. It is not a constitutional right. It is a statutory right, one created by law, and which can be changed by law. That is, the rights are granted by the copyright law as it is written, so in revision of the copyright law, you can either enlarge these rights or restrict them or change them in any way or abolish them altogether in your Congress here assembled. It is a statutory right.

Consequently, as I see it, the problem of the committee is to balance the need of protection for the copyright owners to insure them a reasonable return for their efforts and for their expenses of publication and so on, and at the same time, to protect the public good and the right of the public for proper dissemination of publications, which is the area in which libraries are engaged.

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