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maintained by a consortium of medical school and hospital libraries in the Metropolitan New York area. I am also a past president of the Medical Library Association, currently a member of the association's Committee on Legislation, and frequently the association's representative at meetings of the Ad Hoc Committee on Copyright Law Revision.
It is a privilege to have the opportunity to express the viewpoint of our membership.
The Medical Library Association, founded in 1898, celebrated its 75th anniversary this year. Its total membership is 2,854, of which 781 are institutional members and 1,755 are individual voting members. The remaining members are students in the United States and institutions and individuals in Canada and overseas.
The libraries and librarians are located in all types of health service facilities; medical schools, hospitals, research institutes, pharmaceutical firms, and medical societies. All are dedicated to helping the improvement of the quality of health care and extending it to every person in our Nation.
We are very pleased to find in sections 107 and 108 of S. 1361 recognition of photoreproduction as fair use of copyrighted publications by libraries under various conditions and for various purposes. We believe, however, that strict interpretation of the technical language of section 108(d) (1) would present serious operational problems. My remarks pertain especially to the scientific periodical literature.
Specifically, the bill calls for determination, prior to supplying a copy of a single periodical article to one individual, that the article is not available. This provision unfairly places a heavy burden on the user and the librarian.
Supplies of back issues in publishers' warehouses are expendable, and, often by the time a user has identified in an indexing or abstracting service or in the bibliography of another publication an article pertinent to his research or to the illness of one of his patients, the supply of the journal issue in which it was published may be depleted. Then the user must canvas the authorized reproducing services, such as the reprint dealers and microform publishers, because the average user is not knowledgeable about these sources; the search often is a collaborative enterprise of user and librarian. If the librarian has not participated in the search for an unused copy, the burden of proof is on the user and the librarian must decide whether or not to accept it.
The clerical chore of determining the availability of an unused copy would take, at best, a number of days, and more probably a number of weeks, thus setting up a timelag between the user and the published information he needs. In the healih sciences, especially in the practice of patient care, the time factor can be critical.
Medical educators may suffer from delay in obtaining the published periodical literature, for many are both teacher and practicing physician, and time is of the essence as they coordinate two careers.
In closing, I remind you that health scientists do not receive compensation for the journal articles they write. This medical literature is usually a byproduct of research sponsored by society. Health scientists freely exchange information at regional, national, international meetings. Publication of their findings is an extension of their altruism.
The Federal Government encourages these humanitarian endeavors with grants of funds for research, including the payment of page charges to publishers and other expenses incidental to publishing. In
addition, journals are often purchased with Federal funds in support of libraries.
The Association of Research Libraries and the American Library Association and others have proposed to the committee an amendment to section 108(d) of S. 1361. The language suggested for section 108. (d) (1) would eliminate the costly and time-consuming intermediate steps of determining the availability of an unused copy.
Therefore, on behalf of librarians who serve the health sciences, I respectfully request that the proposed amendment be incorporated'in the bill, S. 1361. As has been pointed out, most of the developed countries of the world permit such "fair use" photocopy, and it is timely for our Nation to do the same.
Senator McCLELLAN. Are the conditions that you submit here on page 4, comparable or identical to the amendment proposed by witnesses who have preceded you?
Mrs. FELTER. Yes.
Mrs. FELTER. I believe so. I'm not quite sure I understand your question.
Mr. BRENNAN. I think what the chairman is saying, do you support the amendment that was offered earlier this morning by the two libraries?
Mrs. FELTER. Yes, indeed, and most heartily.
Senator McCLELLAN. These conditions that you speak of here that would be provided for certain conditions are in accord with the proposed amendments submitted this morning by the other witnesses as I understand it?
Mrs. FELTER. Yes. We are particularly concerned with the technical language of 108 (d) (1).
Senator McCLELLAN. All right.
Senator BURDICK. Thank you for your testimony, but I see the same argument used against your amendment as against the proposed legislation. In your proposed amendment, as I said to the previous witness, it is on the basis of a reasonable investigation that a copy cannot readily be obtained. This is the same weakness that you referred to in the proposed legislation?
Mrs. FELTER. I am speaking particularly of the scientific periodical literature. It is not as easy to determine whether an unused copy is. available. As I pointed out, publishers do not retain an inexhaustible supply of back issues, and back issues are not listed in books, such as Dr. Low mentioned. These are single issues of periodicals. Therefore, it is almost an insurmountable clerical chore to determine whether an unused copy is available. Even a telephone call does not help, because the publisher's office may be in one city, whereas his warehouse may be many miles away. There is a communication gap.
Senator BURDICK. This is precisely the point I am making. But your amendment to correct the situation does the very same thing. Let me read it to you.
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
So you have to go through the same rigma role under your own amendment.
Mrs. FELTER. We would in the case of obtaining a book or an entire work. However, section (1) would alleviate our problem with respect to the periodical literature, and this is of great concern to us, because at least two-thirds, more likely three-quarters, of the use of medical literature by physicians and researchers is not in book form but in journal form, for the reason that it must be up to date.
Senator BURDICK. But your amendment goes beyond the one book. It says “entitled to supply a copy or phonorecord of an entire work or of more than a relatively small part of it.” So you have got parts and totals there, and you have to go through tlie same investigation, make a reasonable investigation.
I want to be helpful, but I can see the same shortcomings in your amendment as there is in the legislation you complain about, or you find short.
Mrs. FELTER. Well, as far as the medical library is concerned, if item 2 were omitted, I think that that would concern us less. It is item (1) that we are particularly concerned about, because that applies, as it says, to one article from a periodical issue. That is a relatively small part, rather than more than a relatively small part, since every issue contains a number of articles.
Senator BURDICK. Well, you see what I am talking about, that you have got some of the same shortcomings in both, and you do not really correct it.
Mrs. FELTER. Well, we feel that subitem (1) would correct the clause. Senator BURDICK. But not 2?
Mrs. FELTER. But not-2 is not as significant, because we do not use the book materials as much, and we certainly would not copy an entire work if we could avoid it, because I think Dr. McCarthy pointed out it is a very expensive way to provide the literature.
Senator BURDICK. That leaves us with another problem. A relatively small part of it might be a collection or periodical issues.
Mrs. FELTER. Well, it is a question of what is considered as a relatively small part. People try to define a couple or a few. Probably there are as many definitions as there are people.
Senator BURDICK. Thank you.
Senator Fong. Under your amendment, you will require the person who comes for that article to ascertain whether there is any magazine existing on the stands?
Mrs. FELTER. As the bill is presently written, it would be necessary for us to do that, or perhaps to do it for him.
Senator Fong. Do you want that?
Mrs. FELTER. No; we did not want that, because determining whether there is available an unused copy of the journal in which is printed the article that is requested, might be a very time-consuming chore. And in the health sciences, time is frequently of the essence.
Senator Foxg. So you feel that it is an unreasonable burden on you?
Mrs. FELTER. I think it is an unreasonable burden on us. I think it certainly is an unreasonable burden on the user, who is generally a practicing physician.
Senator Fong. And you would like the authority to issue him a Xerox copy without ascertaining whether there are any
Mrs. FELTER. That is correct. A single copy of the article from the scientific and periodical literature.
Senator Fong. You do not want to have the burden of proof on you to show that there is no copy existing ?
Mrs. FELTER. Well, certainly not. You know, no one likes to have the burden of accepting the word of someone without some evidence.
Senator Foxg. Thank you.
Dr. Cairns, could you identify yourself and your associates for the record ? STATEMENT OF ROBERT W. CAIRNS, EXECUTIVE DIRECTOR, AMER
ICAN CHEMICAL SOCIETY; ACCOMPANIED BY RICHARD L. KENYON, DIRECTOR, PUBLIC AFFAIRS AND COMMUNICATION DIVISION; BEN H. WEIL, CHAIRMAN, ACS COMMITTEE ON COPYRIGHTS; STEPHEN T. QUIGLEY, DEPARTMENT OF CHEMISTRY AND PUBLIC AFFAIRS; AND ARTHUR B. HANSON, GENERAL COUNSEL
Dr. Cairns. Thank you, Mr. Chairman, for the privilege of testifying today.
I wish' first to introduce my compatriots and colleagues here. Mr. Ben H. Weil, who is chairman of the American Chemical Society Committee on Copyrights. Sitting next to him is Arthur B. Hanson, our ACS general counsel, with whom you and your staff, I believe, are acquainted ; Dr. Richard Kenyon, on my right, who is director of our division of public affairs and communication. Sitting next to him is Dr. Stephen T. Quigley, director of the department of public affairs.
I brought these gentlemen along to answer questions, if they are needed, and to display to you our serious concern with this legislation.
I wish to read one paragraph from the written testimony and ask for its complete introduction into your record.
Senator McCLELLAN. Your prepared statement you want to read from it, sir?
Dr. Cairns. I just wish to read one paragraph.
Dr. Cairns. I am testifying here on behalf of the American Chemical Society by authority of its board of directors. This is the largest scientific and educational society in America and I believe in the world110.000 members, approximately,
We have a very large publishing activity which aggregates close to $30 million a vear and hence we are very familiar with the economics of journal publication and the dissemination of scientific and technical information, which is a very vital link in the whole process of the derelopment of science and technology in the world.
Now, I shall read from the central paragraph on page 11 of my statement. It is desirable that use be made of modern technology in develoning optimum dissemination.” We are certainly strongly in favor of the most modern methods and are developing the most modern methods of dissemination.
"This new technology includes the use of modern reprography, but as technology inherently includes economics the means of financial sup
port of the system must be a part of its design. Therefore, photocopying should not be allowed under any circumstances unless an adequate means of control and payment is simultaneously developed to compensate publishers for their basic editorial and composition costs. Otherwise, 'fair use or library-photocopying loopholes, or any other exemptions from the copyright control for either profit or nonprofit use, will ultimately destroy the viability of scientific and technical publications or other elements of information dissemination systems."
Now, I emphasize that I am speaking with regard to scientific and technical publications. In the chemical field, for example, there are a total of 400,000 manuscripts per year which are authored and printed ultimately, after due editing, in journals. There are approximately 10,000 journals which impinge on the chemical field. That means that, in the full field of science, there are perhaps five times as many journal articles and publishing societies. It is a very large group, and it is very vital in the dissemination field.
We have under our general guidance and responsibility the Chemical Abstracts service, which publishes 40,000 pages of abstracts and indices each year and issues this to all of the libraries, to all the scientists and engineers. This forms a vital link in dissemination.
We publish, in addition, separate journals that are issued approximately biweekly, which are 20 in number, and which aggregate about 40,000 pages a year, and which go to 330,000 subscribers.
Only 4 percent of the world's literature is published in this form by the ACS. However, we feel that this is of outstanding quality and represents the work of Nobel prize winners and other top scientists and engineers throughout the world. This is a vital link in the progress of science and technology.
Each worker writes reports and submits them to the journals. The editorial boards carefully screen and select them, edit them, and bring them into the line of quality of the journals they represent. The American Chemical Society assures the quality through peer analysis of the material submitted to the journals. All of science and technology rests on this communication link. It is essential to both research and education.
The first copy of each journal, counting all 20, costs the society $4 million a year. That is the first copy only. The overrun, or additional printing costs, amount to about $1 million a year. Somehow, we must recover both types of costs. Obviously, the collection, editing, formating, and composition of the journals has to be paid for by someone.
Today, it is paid for largely by subscribers. Even if libraries are to take over with their Xerox machines the entire publishing, it will be necessary for someone to compensate the publishers for the collection and editing and composition of the material which they copy. Otherwise, there will be nothing to copy.
The cost figures if they are stated in terms of per page and per copy-are in pennies; somewhere in the realm of 1 cent to 10 cents a page is what it costs to create the editorial content. But, of course, if you have 10.000 pages and 10,000 copies, you come up to 100 million cents, or $1 million. So it is quite obvious that pennies per pace can add up to very substantial amounts of money. And this is why I am talking to you now as I am.
The first cony cost must be collected if journals are to exist. Journals are essential because of the quality angle and the admission to the