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There is no collection that contains nearly all the materials which are available, even our Library of Congress, probably the largest library in the world. There are many thousands of titles in the United States that are not in the Library of Congress, and even the smallest libraries often have titles that are not found anywhere else, and this is just for titles in the United States, without considering titles all over the world.
So, in research it is very desirable to have as free a dissemination of information as we can, a listing of what is available, both periodical articles and monographs, and the ability to exchange the information in the most propitious manner.
I happen to be librarian of New College at Sarasota, Fla. I have been director of a university library for many years at one time, and then taught at the University of Michigan and have retired there, and am now finishing my career as the librarian of a small but very fine college down in Florida. I like the small colleges. I think they do very fine work, and my college is typical of the many small schools that are found over the country. Of some 2,500 accredited institutions of higher education in the United States, over 2,000 of these are smaller schools such as my college and would correspond somewhat to Hendrix College in your State, Senator, or College of the Ozarks at Clarksville, or Cuachita Baptist at Arkadelphia, or Jamestown College in North Dakota, and also the community colleges are small but very thriving schools. None of these can have the great library collections. So we have faculty that need to keep up their work and research in order to keep up their quality of teaching, and these faculty, among others, supply articles for the journals which eventually are copyrighted and published.
So it is very important to the smaller library, both the public library which Senator Burdick mentioned and the smaller college library to be able to borrow from the larger libraries as we borrow at times from the University of Florida at Gainesville or Hendrix would borrow from the University of Arkansas at Fayetteville, or even sometimes going more widely where needed esoteric journals cannot be found close by.
So, it is extremely important that we are able to continue this work. And we do not lend much material because our libraries are not large enough. We are the borrowing end, and libraries represented by Mr. McCarthy's group here, are the ones who lend to us, and they are the ones that would be threatened by the law if they went ahead copying for us.
Inter-library loan increase random requests and it is often not recognized that this type of loan increases the subscriptions often as well as is sometimes represented, although I have not had that experience, of discontinuing a periodical because something could be secured on inter-library loans.
For instance, at my school we will, if we borrow as much as two articles from a periodical during a year, try to put that periodical on the subscription list the next year. We feel that if we never request an article from a periodical, obviously we have not damaged its sales. If we have just requested one article over a period of a year, we have not damaged its sales. We spend every bit of money that we can possibly afford for periodical subscriptions, and that is true everywhere. Librarians would always rather have a periodical in hand than to have to borrow it.
So, if copying were restricted, it would not result in a larger periodical list for us or for these other libraries. It would simply mean that we could not help in maintaining the quality of education and quality of teaching and research that we are now able to maintain.
The inter-library loan is one of two groups of copying. The other is referred to as in-house copying, which is done by libraries, generally, but which is the less important of the two because in in-house copying, your material is there and available, but in the inter-library loan, it it not. The material is not there, and this is the only practical means of approaching this.
We are recommending the same amendment that was recommended by the Association of College and Research Libraries. That is, we wish to make a copy of a periodical article where needed, or a small portion of other copyrighted work.
Now, in this we are not wanting to go beyond fair use. The librarians have been accused at different times of having fair use and now they want to go beyond this and do something that is illegal. We are not wanting to go beyond fair use. We are wanting by this amendment to state definitely what fair use is. That is so we can know and not be subject to suits.
Now, we do not think that there would be suits expecting to make any money off librarians, because we do not have any, at least I have not found librarians that have, but we could be subjected to very harrassing suits since larger sums of money can be sued for under statutory damages.
So we would like to have the librarian free of this threat of suit which he cannot be under the fair use that was described here a few minutes ago, because he cannot be sure in any case that he has a right to make a given copy until it has been determined by the court.
So we are searching for this precise definition of what would be reasonable fair use.
Lastly, I should emphasize that I am sure that I speak for all librarians, that we are law abiding citizens, and we are going to abide by whatever law is ultimately passed, both in letter and in spirit. So if a law is passed which is too restrictive it means that we cannot do our jobs as well as we could otherwise. These are the points that are included with one or two additions here to my written statement, and I do appreciate this opportunity to appear before you this morning.
Senator McCLELLAN. Dr. Low, you support the amendment that is offered by Dr. McCarthy ?
Dr. Low. Yes, sir.
Senator MCCLELLAN. It is attached to your statement. It is already in the record.
Dr. Low. Yes, sir.
What you are saying, as I understand you, you are not opposing fair use. You are seeking a definition in the law of what is within the limits of fair use.
Dr. Low. That is right, sir.
Senator BURDICK. Well, I want to thank you for your testimony. I note that you say that you would like to be sure of where you are. I think that is the word you used, but as I listened to Dr. McCarthy and listened to you, we are in a very fuzzy area, no matter what we do.
For example, in your amendment, part 2 of what Mr. McCarthyl presented, let me read it with you.
The library or archives shall be entitled to supply a copy or phonerecord of an entire work, or of more than a relatively small part of it.
Well, that could be, a relatively small part could be debatable, but let's go beyond that,
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.
Now, you tell me what is a reasonable investigation ?
Senator BURDICK. That has the same failings as the language that you are complaining about.
Dr. Low. We do not anticipate that there would be a problem in interpreting that. This is put in because in the copyright law, when you grant exclusive right to the author to the copyright proprietor, this is a monopoly, but there is no restriction on this monopoly as in most monopolies that are granted. There is no requirement for the publisher to keep things in print. If you grant a monopoly to a telephone company to serve in your city, then it is not only regulated, but you demand them to give service, so if you granted a franchise for 25 years, and then after 2 or 3 years it said, it is not profitable, so we are going to discontinue our telephone service, but we will not give up the franchise. Well, then we would not put up with that for a moment, but we do give an exclusive right to the copyright proprietor, to the publisher to publish without any requirement that he keep the book in print, and most books go out of print in the first three years after being printed.
So this is an effort, if we find that it is not in print, is not available from the usual trade sources, because even if it is not in print, sometimes it is available through second hand houses, but that is just a general search that maybe they will have it and so on, but if we cannot find it, and it is not available from the usual publisher, then we want the authority to make another copy of this, if it is needed.
Senator BURDICK. Yes, but to use your language, you want to be
Now, I come in to get a copy of a particular work. What do you have to do as a librarian up in Williston, N. Dak., again, to make a reasonable investigation ?
Do you have to make a lot of phone calls, write a lot of letters, or what do you have to do?
Dr. Low. There is a publication that is widely distributed-nearly every library has it—entitled "Books in Print," and this is the list of books that the publishers have in print. It is put out every year at a given time. We would look in that first, and if it is not listed in there, we would look also in the Cumulative Book Index. We would assume then, if it was not listed in these, that it is not available in the convenient trade sources.
Now, this is an area here that we have been able, I think, to come to general agreement with the publishers that this would probably be all right. We have not come to any firm agreement, but we have explored various ways of getting together and doing away with our differences. I think that we could get some agreement on reproducing things that are not in print.
This does become more important in light of the provision in the revision bill which extends the time of copyright. Now, the further you extend the time of copyright, the larger the percentage of material that will be out of print but is still covered by copyright.
Senator BURDICK. Well, then, you think this catalog that is put out indicating when books are published, and so forth, would be adequate if you would thumb through that catalog to see whether or not it is available?
Dr. Low. That, I think, adequate; yes, sir.
Senator BURDICK. Even though it may be available outside of information in the catalog.
Dr. Low. It might be, but I said, we might also check the Cumulative Book Index, which is another very general listing, even more general than the books in print.
Senator BURDICK. Do small libraries in small towns have this service?
Dr. Low. Yes, sir. Practically every library buys these. These are just for ordering your books, you see. You need this because, you order a book, you have to find out who publishes it unless you are going to a dealer.
Senator BURDICK. I just want to point out that it is complex and it is hard to be absolutely certain when you draw a piece of legislation.
Dr. Low. It is, and I suppose I am overstating it to say that the amendment we propose would make it absolutely certain. We think that it would be of so much help in determining where we stand that it would be very desirable.
Senator BURDICK. Thank you.
Senator McCLELLAN. Both you and the publishers are reaching some accommodation. Have they agreed to your amendment?
Dr. Low. No, sir, they have not.
[The prepared statement of Dr. Edmon Low on behalf of the Ameriican Library Association follows:] STATEMENT OF EDMON LOW, CHAIRMAN, COPYRIGHT SUBCOMMITTEE, AMERICAN
LIBRARY ASSOCIATION I am Edmon Low, director of the Library of New College, Sarastota, Florida, and chairman, Copyright Subcommittee of the American Library Association, a nonprofit, educational organization founded in 1876. Its membership includes some 30,000 librarians, trustees and other public-spirited citizens dedicated to the development of libraries as essential factors in the continued educational, economic, scientific and cultural advancement of the American people. The Association is concerned with the development of all types of libraries—public libraries; school and college and university libraries; medical and law libraries and other specialized libraries and with the problems they encounter, such as financing, relations with their patrons, and the legal provisions under which they operate, including copyright.
We are concerned here today with the Copyright Revision Bill, S. 1361, and primarily with the provisions relating to photocopying in libraries. This is a subject of great concern to all librarians and to the patrons whom they serve—the general user of the public library, the student, the scholar, the research man, the lawyer, doctor, minister or other professional individual, or to the Congressman himself, as he frequently turns to our great Congressional Library for aid in his important work.
This copying may be roughly divided into two groups, the first being that done either by a member of a library staff or by the user himself from material in the library for immediate use on the premises or nearby; the second, that done by one library for and at the request of another library, often some distance away, for use by one of its patrons there. The first is often designated "in-house" copying, while the second we usually refer to as “inter-library ioan." The first is often only a convenience to the patron, as for instance a student writing a term paper, in that he does have the material in hand and could use it on the premises; the second is basically the more important in that the scholar or other user does not have the document in hand and therefore it is his only practical access to what may be highly important material for information or research.
It is now generally understood that a single collection of books or other recorded forms of thought as represented by a library can contain only a fraction of the total amount of material in existence. Even the Library of Congress, pos. sibly the largest single collection of materials in the world, does not have many thousands of titles which exist in the United States, to say nothing of those else. where in the world, while on the other hand even a relatively small library will often have titles not found anywhere else in the country. The location and cataloging of these titles, and of articles in journals, and the making of same available readily through photocopying or loan—the dissemination of knowledge is indispensable to education and research and often involves the reproduction by photocopying of a portion of a monograph or a journal article protected by copyright.
It should be noted that copyright is not an inherent right, such as trial by jury of one's peers. It is a statutory right—one created by law-and may be changed, enlarged, narrowed, or abolished altogether by the Congress here assembled. It is a law enacted not for the benefit of an individual or a corporation but for the public good and with the purpose, as the Constitution expresses it "to encourage progress in science and the useful arts.” Consequently, in considering revision, the problem becomes one of providing protection to the author or publisher to provide reasonable return on the investment of time and money, and at the same time to provide for the widest possible access to and dissemination of information to the public.
At present I am Director of the New College Library at Sarasota, Florida. New College is a small, but very fine, private college and its problems in this connection are typical of the two thousand small and medium-sized colleges throughout the country. While our library is liberally supported and spends every cent it can afford on serial subscriptions, we cannot possibly have the large resources of a university like the one at Gainesville or at Tallahassee. Yet our faculty members, if they maintain a good quality of teaching and do the research which contributes to it, must have access by random photocopying at times to the larger collections in the State and elsewhere.
It is usually not known that the inter-library loan arrangement often encourages the entering of additional subscriptions by the library rather than reducing the number as is often charged. It is a truism that a librarian would rather have a title at hand rather than to have to borrow even under the most convenient circumstances. Consequenlty, when the time comes around each year to consider the serials list of subscriptions, the record of inter-library loans is scanned and titles are included from which articles have been requested with some frequency during the year. In our library the number is two; if we have had two or more requests for articles from the same title during the year, we enter a subscription. This not only indicates how the procedure can help the periodical publishers but also indicates that if only one article or none was copied from a title during a year, the journal could not have been damaged materially in the process. It is not only the small schools which would suffer if such photocopying were eliminated, however; the scholars at Illinois or Cornell would also be severely put to it to continue their research in the same way and it is these scholars which account for the major writing for the scholarly journals. The journals themeslves, therefore, have a stake in seeing this procedure continued in a reasonable way.
Courts have long recognized that some reproduction of portions of a copyrighted work for purposes of criticism, teaching, scholarship or research is desirable and this judicial concept, known as "fair use" is incorporated in Section 107 of the revision bill. Libraries have operated all these years under this principle but it does lack the assurance of freedom of liability from harassing suits which the librarian needs in his work. This fair use concept necessarily is expressed in general language in the bill so a librarian will not be able to be sure, until a court decides a particular case, whether his action, undertaken with the best of intentions to aid the patron, is or is not an infringement. Fair use, then, is really not right to copy any given thing, but only a defense to be invoked if one is sued. This threat of suit, even if one is able to maintain his innocence in court, is very real because suits are costly in proportion to the amount for which one is sued. This revision bill provides not only for demand for actual damages but also