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paramount interest in the editorial and scholarly integrity of their respective institutional imprints, and, hence, reputations.
It is this unique perspective that allows--or obliges--the university press to view the issue oi copyright in general and of library photocopying in particular from the viewpoints of both educator and entrepreneur. The university press has always existed to insure the systematic and orderly transfer of important scholarly information to an appropriate readership, and to act as a faithful steward of its authors' rights and interests in doing so. The scholar is, after all, not only the reader-consumer, but the author-creator as well. Had he the time and resources, he would undertake to transfer his intellectual offerings directly to those who want and need them; since he usually has neither, the publisherin the case of unprofitable scholarship, the university press-has provided the vital link between producer and user. If the orderly reporting of scholarly research and thought is to continue, the medium through which it occurs must be safeguarded. A vital component of that medium is the traditional privilege and responsibility of registering and protecting an author's claim to copyright in the writings which represent his intellectual achievement, and of exercising and managing all subsidiary rights depending on that copyright in accordance with contractual conditions agreed upon by author and publisher. This componentthe responsibility of stewardshipis gravely threatened by the present vagueness of section 107, which is in effect an invitation to undertake unlimited photocopying of copyrighted materials with impunity. Accordingly, we therefore respectfully submit that section 107 be amended as set forth in Exhibit A appended to this testimony, in order to set more specific guidelines for the photocopying of materials in copyright.
It is not, and never has been, the position of the university presses that photocopying for library use is to be prohibited. Indeed, to the contrary, scholarly publishers have long recognized the value, in certain specific circumstances, of the photocopy as a means of assuring further distribution of their works amongst their readerships. Scholarly presses are sympathetic to the growing need for library materials and the shrinking resources with which libraries must seek to satisfy this need. At the same time, it is manifest that the increasingly prevalent practice of systematic library photocopying, in which works are reproduced in their entirety for distribution to multiple users, poses a grave threat both to the integrity of the copyright in the works copied, and to the proprietors—in this case university publishers--who have invested considerable financial and human resources in their production and publication. The present draft of 108 contains the minimum conditions necessary to assure reasonable protection of authors and publishers with regard to copyright; even these minima place strong emphasis on the intent of the library and educational communities to observe them in good faith. Indeed, to invoke the necessary means to assure compliance-particularly in regard to such provisions as 108 (d) (1)—would be economically and practically unfeasible. Moreover, these conditions are entirely dependent on the amendment of section 107 I have suggested elsewhere in this testimony, which would give more structure to the circumstances under which limited photocopying of copyrighted materials might be undertaken. Failing such an amendment of 107, AAUP would be forced to argue strongly for revision of section 108 to allow photocopying of archival materials only.
In a field of endeavor where little if any financial reward accrues to the creator, every effort must be made to assure at least that he retains control over the format and content of his creation. Without copyright, this is impossible, and without adequate protection, there is no copyright. Our purpose as stewards of scholarship is to protect the environment in which authorship happens, for without the author, there is nothing to publish, and when nothing is published, there is nothing to read, and when there is nothing to read, the intellectual environment stagnates and ultimately dies.
With regard to the proposed educational exemption, let me once more invoke the dual perspective of the university Press, in noting that the long-range interests of scholarship are assuredly ill-served by this proposed amendment. Its provisions are indeed so imprecise and subject to manipulation as to render virtually all copyright material void of any protection against unlimited photocopying.
In the event that S. 1361 cannot be enacted with the changes we have proposed, we would favor the referral of the entire question of library photocopying to the National Commission on New Technological Use of Copyrighted Works proposed in Title II.
SUBSTITUTE SECTION 107 to S. 1361 PROPOSED BY THE ASSOCIATION OF AMERICAN
UNIVERSITY PRESSES, INC. JULY 31, 1973 Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies of phono-records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, display or lecture in teaching, scholarship, or research, is not an infringement of copyright. Fair use does not include the reproduction of a copyrighted work for its own sake, as in an anthology or book of readings, or as a self-contained unit such as an appendix to another work, or as a substantial part of the text of another work. In determining whether the use of a work in any particular case is a fair use the principal factors to be considered shall be the market value of the use of the copyrighted work and the effect of the use upon the potential market of the work. Factors in making this determination shall include:
(1) the purpose and character of the use;
(3) the amount and substantiality of the portion used in relation to the consrighted work as a whole.
Senator McCLELLAN. The committee will come to order.
Mr. BRENNAN. The Association of American Publishers, Inc., has been allocated 3 minutes, Mr. Chairman.
STATEMENT OF W. BRADFORD WILEY, CHAIRMAN OF THE COPY. RIGHT COMMITTEE, APPEARING ON BEHALF OF THE AMERICAN ASSOCIATION OF PUBLISHERS, INC.; ACCOMPANIED BY ROSS SACKETT, CHAIRMAN, ASSOCIATION OF AMERICAN PUBLISHERS, INC.; AND CHARLES H. LIEB, COPYRIGHT COUNSEL
Mr. WILEY. Mr. Chairman, I am Bradford Wiley, chairman and chief executive officer of John Wiley and Sons, Inc., New York, publishers of textbooks, reference books, and encyclopedias, journals and audio-visual materials. In behalf of the Association of American Publishers, Inc., I have submitted a full statement from which this oral presentation is abstracted. With me are, on my right, Ross Sackett, chairman of the association, and, on my left, Charles H. Lieb, our copyright counsel.
Our position on library photocopying was stated in our December 5, 1972, letter to Mr. Brennan in response to his request. Our position, in brief, is:
1. We support section 107.
4. We oppose the overlapping "limited educational exemption" offered by the NEA Ad Hoc Committee.
5. We support the enactment of S. 1361 in its present form except for drafting changes which we have suggested.
AAP does not dispute the need for libraries in given instances to make photocopies of journal articles and some book reference materials.
I wish to emphasize, however, accepting as we do section 107 as a codification of the principles of fair use, we have offered in the past and continue to offer to collaborate with the library associations to establish clarifying guidelines.
As to copying that would go beyond fair use and would not be permitted by the library copying provisions of section 108 as presently drafted, we have offered before and continue to offer cooperation with the library associations to establish workable clearance procedures.
There is no need, therefore, for the library amendment and we oppose its adoption.
Section 108 with the drafting changes which we have suggested goes as far toward compromise in statutory form as publishers can go. The section, from our point of view, is troublesome. With the library amendment, it would become intolerable.
Thank you for the opportunity to appear before you. .
[The prepared statement of W. Bradford Wiley follows:] PREPARED STATEMENT ON S. 1361, IN BEHALF OF THE ASSOCIATION OF AMERICAN
PUBLISHERS, INC. I am W. Bradford Wiley, Chairman and Chief Executive of John Wiley & Sons, Inc., publishers. I appear in behalf of the Association of American Publishers, Inc. of which I was formerly Chairman and am now Chairman of its Copyright Committee. With me are Ross Sackett, President of Encyclopedia Britannica Educational Corporation, and present Chairman of AAP; Richard P. Sernett, Secretary and Chief Legal Officer of Scott, Foresman and Company, Vice Chairman of the AAP Copyright Committee; and Charles H. Lieb of the New York Bar, Copyright Counsel to AAP.
AAP is a trade association of book publishers in the United States. Its 260 member companies and subsidiaries are believed to produce 80% or more of the dollar volume of books published in the United States. Some of its members publish scientific and technical journals. Although most of its members are in the private sector, some are religious and educational not-for-profit organizations.
We are grateful for permission to testify at what we understand are limited hearings confined to specific issues, one of which, library photocopying, is the subject of the present discussion.
AAP'S POSITION We stated our position on library photocopying in response to the Subcommittee's request in our letter of December 5, 1972 to Mr. Thomas C. Brennan, your Chief Counsel, a copy of which marked "Exhibit A” is attached. The library "substitute amendment" to which we referred in that letter is, we beileve, the amendment to S. 1361 which the Association of Research Libraries and the American Library Association are presently supporting. The drafting changes to Section 108 of S. 1361 (then S. 644) which we suggested in that letter are those outlined in "Exhibit B" attached hereto.
Our position, in brief, is as follows:
(1) We support Section 107 as a helpful statement of the principles of fair use.
(2) Although in some respects harmful to the interests of copyright proprietors, we support Section 108 but only with drafting changes as outlined in Exhibit B.
(3) We oppose the substitute for Section 108(d) (1) requested by the library associations.
(4) We oppose the overlapping "limited educational exemption" amendment offered by the National Education Association Ad Hoc Committee on Copyright Law Revision which is to be discussed at a later session in these hearings.
(5) We support enactment of S. 1361 in its present form except for the drafting changes to Section 108 referred to above.
The membership of AAP, profit and not-for-profit alike, have a vital interest in protecting their publishing investments against unauthorized library photocopying or periodical articles and contributions to collective works. George D. Cary. then Register of Copyrights, succinctly stated the basis for our objection in a recent address. He said
"unlimited copying * could well so diminish sales that the journal publisher would have to suspend publication, or increase the cost of the journal in order to make up for the loss in subscriptions caused by the excessive copying." (A.S.I.S. Proceedings, Vol. 9, 1972, at 171.)
AAP does not dispute the need for libraries in given instances to make single photocopies of journal articles. It does dispute that the amendment offered by the library associations provides the proper method.
AAP'S OFFER TO ESTABISH FAIR USE GUIDELINES
Much of what libraries copy they have the right to copy within the principles of fair use. which would be codified by Section 107. Concededly the line that marks the difference between fair and unfair use in a given case may be difficult to draw. Because we understand the predicament in which this places the librarian we have offered to cooperate with the library associations in establishing quantitative and qualitative guidelines which would eliminate much of the present uncertainty. So far, however, the library associations have not chosen to accept our offer.
GUARANTEED ACCESS TO THE USER Much also of what libraries copy, clearly not fair use, would be permitted to copy under subsection (b), (c) and (d) of Section 108, both as presently drafted and as amended as suggested in our Exhibit B. These subsections would permit single copying not only for archival purposes but also for the requesting user if he cannot obtain the published work from the publisher or dealer or a reprint or photocopying from an authorized reproducing source. Thus, user access would be guaranteed to any work, whether in or out of print.
AAP'S OFFER TO ESTABLISH CLEARANCE PROCEDURES We share the view that we understand was stated in the Committee's draft 01 Report to accompany S. 543 (which was not issued) that the interest of the library community in satisfying existing needs of scholarship and research is adequately provided for in Sections 107 and 108 and that further innovations in reprography policy should await either agreement among the parties or the studies of the National Commission to be appointed under Title II. For our part, we, with the Authors League, members of the Association of American University Presses, several learned societies which publish journals, and the American Business Press, have offered to cooperate with library and other interests to establish workable voluntary arrangements to clear the photocopying of material that would exceed the limits imposed by Section 108 (cf Exhibit A).
The library associations (other than the Special Libraries Association which has recently announced its willingness to work out arrangements to assure access to library resource on reasonable terms) have rejected our proposal, and offer instead a substitute subsection 108(d) (1) which would permit not only the kinds of copying contemplated by Section 108 as presently drafted but also the copying of an entire article in a periodical issue or of an entire contribution to a collective work.
We think this kind of broad-axe indiscriminate treatment of the difficult photocopying issue is a poor substitute for mutually acceptable voluntary arrangements; that it would be ill-advised and counter-productive and, as Mr. Cary noted, could lead to the ultimate disappearance of the very periodicals and collective works which the libraries want to copy.
AAP'S OBJECTIONS TO THE LIBRARY AMENDMENT We oppose the amendment offered by the library associations. Totally overlooked in their approach are basic differences and distinctions that exist between the kinds of material copied and their varying markets, the kinds of institutions which do the copying and the manner in which they distribute it. Below are a few examples of the distinctions which we have in mind.
(1) The library amendment would ignore the nature and purpose of the work, and would treat in the same manner a work prepared primarily for scientific or educational purposes and an article in a news magazine of current interest only.
(2) It would ignore the cost and effort involved in the creation of the work and the size of its anticipated market and readership.
(3) It would ignore the nature of the library that does the copying, treating in the same manner a small general purpose library with local patronage and a central research library serving a broad geographical area, possibly even crossing national boundaries to form part of a worldwide network.
(4) It draws no distinction between the sporadic over-the-desk delivery of a conventional photocopy and the systematic facsimile transmission of the work by telephone line, cable or over the air.
(5) It takes no account of whether copies of the work are available to the library or the user from the publisher or his authorized reproducing service, and makes no distinction between current and older issues.
NO "NORMAL" FAIR USE Basically the vice in the library amendment is that it draws no distinction between the kinds of single copying which can be justified under the principles of fair use as stated in Section 107 and the kinds which cannot be so justified. We understand that the draft of the Committee Report which was under consideration in 1969 would have overlooked this distinction and incorrectly, in our opinion, stated that “the making of a single copy of an article or periodical * * * would normally be regarded as fair use." There is no "normal" article, nor “normal” kind of copying or use, and there cannot therefore be an accurate generalization as to what normally would be fair use without at the same time taking into account the nature of the work and its use and the other criteria summarized in Section 107.
Periodical articles and contributions to collective works cannot be treated generically. The library copying of an article translated from the Chinese at a cost of thousands of dollars and with readership limited to a few cannot be fitted into the same pattern as the library copying of an article in a news magazine. Similarly, the systematic distribution of copies through a national or international library network should not be treated in the same manner as the occasional delivery of a copy to a local patron.
SUMMARY AND CONCLUSION We recognize the need for workable clearance procedures. By their very nature, however, they should be established by mutual agreement, not unilaterally or by statutory fiat. We have offered before and offer again to cooperate with the library associations in working out the necessary arrangements. We hope, in any event, to pursue this path with the Special Libraries Association and with any other group which may wish to participate.
Section 108 with the drafting changes suggested by us goes as far toward compromise in statutory form as publishers can go. The section, from our point of view, is troublesome. With the library amendment it would become intolerable. We urge therefore
(1) that the library substitute amendment be rejected ; (2) that Section 107 and Section 108 with our suggested changes be approved ;
(3) and that as presently provided in the bill, the remaining open questions relating to library photocopying be left for study by the National Commission.
Thank you for the opportunity to appear before your subcommittee.
ASSOCIATION OF AMERICAN PUBLISHERS, INC.,
New York, N.Y., December 5, 1972. Mr. THOMAS C. BRENNAN, Esq., Chief Counsel, Committee on Patents, Trademarks, and Copyright, Committee
on the Judiciary, U.S. Senate, Washington, D.C. DEAR MR. BRENNAN: This is in response to your letter of September 19, 1972, in which you invited the views of the Association of American Publishers, Inc., on the library photocopying issue.
As we understand it, Section 108 was added to S. 644 by the subcommittee in an effort “to supplement the general fair use provisions contained in Section 107.” 1 This was presumably done in response to library demands for a reproduction privilege including the right to copy an entire journal article on request by a patron.
Section 108 is harmful in some respects to the interests of publishers and their authors. In some respects, too, the section has technical flaws. Nevertheless, if the section were acceptable without substantive change to all of the other in. 1 Your letter of September 19 1972.