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Mrs. ALBRECHT. It is our belief that the information contained in scientific periodicals should be disseminated as widely and quickly as possible by any method now known or which is yet to be developed, and of course including photographic methods. All of our statements have stressed that we, in no way, wish to interrupt or halt the dissemination of scientific knowledge through photocopying—but we believe that there must be compensation for this photocopying if the scientific periodical is to remain economically viable and independent of Government subsidy.
It is virtually impossible to increase the number of subscribers beyond those individuals in the discipline served by the periodical or beyond those libraries serving the scientific community.
În 1971 we had 24,217 library subscriptions to our journals; in 1972, 24,502; and as of July 1, 1973, 23,300.
As the figures indicate, there was little library circulation growth in 1972 compared to 1971, and the current 1973 figures indicate our circulation will actually decrease by about 600 subscriptions among libraries.
Senator McCLELLAN. Do you attribute that to the fact they can go to the library and make a copy!
Mrs. ALBRECHT. This is certainly very much one of the factors, sir. Senator McCLELLAN. Do you think that is a factor?
Mrs. ALBRECHT. Yes. We tried in our own way to prove this as much as we could prove it by doing a random sampling of those libraries which had canceled their subscriptions. We called them on the phone and specifically asked them if a patron were to come in and ask for an article from this journal which had been canceled, how the library would then supply this patron? And the library's response was invariably “through the inter-library loan program.” This means one photocopy from one library to another.
Several reasons could be offered to explain the decrease. The number of scientific journals continues to grow while publishers are charging ever-increasing subscription rates. Obviously, if library budgets cannot increase proportionately, some journals must be cut from their lists. Certainly, librarians must be more concerned today about the quality of journals they are purchasing than ever before.
At the same time, however, the number of different libraries purchasing journals is increasing mainly due to the continuing emergency of the Community Hospital Library, but libraries are purchasing smaller numbers of journals, certainly of journals published by Williams and Wilkins. In 1973, we had about 300 more libraries (5,800 total) purchasing our journals than in 1971 but as the figures indicate, fewer journals are being purchased among the total libraries.
Considering the relative quality of W. & W. journals, the above indicates that the interlibrary loan program is working, but not in the best interests of Williams & Wilkins library circulation. If this trend continues, we could experience a 50-percent decrease in library circulation over the next 5 years while the number of libraries served through this well-planned and funded interlibrary loan network will continue to increase.
There may be no valid argument that the above is not in the best interest of the national library economy, but it is evident that, in order to survive, the scientific journals must receive additional income from the libraries engaged in supplying interlibrary loans.
Thus, simply raising the subscription price to those who do subscribe to the journal does not solve the problem. To do this would only result in fewer subscriptions at prices higher than the marketplace can stand and ultimately cause the demise of the periodical itself.
If Congress decides that these limited circulation scientific periodicals (and in 1972 the circulation of our periodicals ranged from a low of 1,200 to a high of 19,000), can be photocopied without reasonable compensation, many of these journals will eventually die. The only way we can see to save these journals from extinction is to broaden their income base by spreading publication costs among those who make use of the information in the journal through means of photocopying.
Libraries pay the Xerox Corp. for the copying equipment, the paper manufacturer for the paper, the utility companies for the electricity to run the equipment, the Post Office for stamps to mail the copies, salaries to the workers who do the copying, and to the librarians who supervise the copying. Many libraries now charge a "transactional" charge for photocopying to cover at least part of these obvious costs. Someone has to pay for these costs and we certainly see nothing wrong with the library's passing these costs on to those who use the information in the form of photocopies. We also think it entirely appropriate that to these many costs there be added a reasonable royalty to the publisher to insure that the publisher can continue to make the obviously useful work available in the future.
It must be continuously remembered that there will be nothing to copy unless the journals remain alive, and that uncompensated photocopying will in the end kill them. By means of blanket license, clearinghouses, or computer accounting, a reasonable royalty for copying can be easily paid to the publisher without the need for complicated bookkeeping, interruption or interference in services. These royalty costs can then easily be passed on to the patron who orders the photocopy. We our selves favor a blanket license plan where the license is incorporated in the subscription price of the journal largely because by this method, no recordkeeping, no accounting, no interruption in service can be experienced by the library.
We believe that those who use the copyrighted information in journals by photocopying should contribute to the cost of publishing and that copyright is the traditional instrument for insuring this contribution while protecting the public interest in wide distribution. If a new theory, i.e., free, indiscriminate and repeated photocopying is legislated, it, in tandem with the new technologies, will destroy the journals and thus create irreparable damage to the public interest.
Finally, our position on the pending copyright revision bill is that we are in favor of bill S. 1361. as submitted, with some amendments for the sake of clarity. We are opposed to any legislative history which appears to construe fair use so as to permit the photocopying of single copies of entire articles without compensation because fair use is a judicial doctrine and its construction is best left to the flexibility of the courts. As for guidance, the ultimate decision in Williams & Wilkins v. United States, will aid in pointing the way in this area.
Senator MCCLELLAN. Let me ask you a question. Suppose students want a copy of a short article and the student goes into the library and gets the book and just sits down and copies off in his own hand writing. Ilow can you stop that?
Mr. GREENBAUM. That is a legal question, Mr. Chairman. May I answer it.
Mr. McCLELLAN. Sure, if you know the answers.
Mr. GREENBAUM. Our position is that that would be a technical infringement, but it would be not something that would be picked up No student is ever going to get sued for that. It is like breaking a stamp on a cigarette package. Maybe it breaks the law, but nobody gets picked up for it. If you break or pull off the tags from the furniture, maybe you break the law, but
Senator MCCLELLAN. Well, he does more than that; he gets the contents. He doesn't just break off the tag and leave the contents when he goes in there and copies that.
Mr. GREENBAUM. Yes. Well, we believe that that would be a technical infringement, but that nobody would enforce it.
Senator McCLELLAN. Obviously it would be an infringement if you copied it by photocopying it.
Mr. GREENBAUM. Yes. And you asked before what the solution would be, and perhaps the Williams & Wilkins Co., can supply a solution.
After a great deal of effort, they came up with the following plan, which we believe works, and here is the way it goes.
A regular subscriber would pay, let's say, « amount-
Mr. GREENBAUM. No, no. An individual, like a doctor. I am talking about scientific medical journals. They now pay x dollars.
Senator McCLELLAN. All right.
Mr. GREENBAUM. Now the library which is going to make photocopies for this boy or anybody else who comes into the library, would pay x plus an average of $3.65 at the time that the subscription is obtained or renewed. It would pay x dollars plus $3.65. This would enable that library license to make as many single photocopies as that library wants to make for as many patrons who want to come into that library. Now, that doesn't require any bookkeeping
Senator McCLELLAN. How do you arrive at the $3.65 figure?
Senator McCLELLAN. I mean, x may be $2 or it may be $5. How do you arrive at that? One book may sell for $10 a volume, and the other may sell for $1.50. How are you going to arrive at $3.65 ?
Mrs. ALBRECHT. The licensing fee which we are talking about here, is our average of $3.65. I think each publisher would determine its own average but certainly keeping within the reasaonable economic status of the library community. We determined a $3.65 average copying fee based on our total manufacturing costs, the number of pages published in a journal, the subscription price of that journal, and what we believe to be this particular journal's susceptibility to photocopying. We publish a broad range of journals, not all of them are certainly equal in content, and not all of them go to the same types of subscribers. Altogether our licensing fee is an average of $3.65 above the individual purchase price.
Senator McCLELLAN. I don't know whether this is actually factual or not, but you might have a book where the original cost may be $3 and then you have this $3.65 cost, which is more than the original cost of the book itself.
Mrs. ALERECHT. I am not saying that could not happen, but it doesn't happen with our journals. Our average subscription price to a journal—this was certainly in effect before we had institutional ratesaveraged somewhere around $30 per subscription.
Senator McCLELLAN. $30 ?
Mr. GREENBAUM. Mr. Chairman, I might also note if the library chooses not to photocopy, they would get a refund of that $3.65.
Senator McCLELLAN. And how would you know whether they photostat or not?
Mr. GREENBAUM. We would take their words.
Senator McCLELLAN. Yes, but if they just report that we don't permit any photostating of this material, you would take their word ?
Mr. GREENBAUM. We heard the representative of the Library Association say the librarians are law-abiding people and we would expect they would pay whatever the law required them to pay.
Senator McCLELLAN. Well, I would be glad if you folks could get some understanding and agreement saying, we trust each other, like you are saying now, and then not come in here and ask us to pass à law to regulate this.
Mr. GREENBAUM. Mr. Chairman, I might add that this plan that we have proposed here is not hypothetical. This was actually put into effect and withdrawn.
Mrs. ALBRECHT. We put it into effect as a royalty licensing plan.
Mrs. ALBRECHT. This was announced to the subscribers in the middle of 1972 that we were going to do this.
Senator McCLELLAN. And it is in effect now? Mrs. ALBRECHT. It is not in effect as a licensing plan. It is only in effect as an institutional rate. The institutional rate does not give the library any photographing copying rights at all. It is the same fee. It is the same plan. But our original intention was to allow the libraries to make unlimited number of single photocopies by paying this extra $3.65. The libraries responded with the point which they made, that they felt that the necessity of a copying license did not exist, and they would not subscribe if we were to try and put in this $3.65 as a license to photocopy.
Senator MCCLELLAN. So you have abandoned it?
Mrs. ALBRECHT. We abandoned that, but we kept the $3.65 as an institutional rate.
Senator McCLELLAN. You increased their subscription that much? Mrs. ALBRECHT. To institutions, yes.
Senator McCLELLAN. To institutions? So you got your $3.65 after all?
Mrs. ALBRECHT. Yes, but we didn't give the libraries what we wanted to give them.
Senator McCLELLAN. They would not have any objection now to your giving it to them? I mean, you got their money. Why don't you just say "thank you," and go ahead with your plans !
Mr. GREENBAUM. The reason you can't do that, Mr. Chairman, would be that it would eliminate any kind of control that you would eventually have. The technology is going to change. We all know that 15 years from now we are not going to recognize the technology that we have today and
Senator McCLELLAN. Well, I am not going to get into that business. I am just puzzled and perplexed and I guess confused like most everybody in trying to resolve this problem.
I think I have a full measure of sympathy for all interests; I mean, I would like to see the publisher and author and so forth compensated, and at the same time, I don't know how you could base it on this 5-percent rate paid by whoever gets a copy, and make this thing work. I don't know how it is going to be practical.
Mr. GREENBAUM. Well, Mr. Chairman, the system we just described works.
Senator McCLELLAN. All right. You've got thousands of books there, and someone comes in and he wants a page out of this book, and another page out of that book, and there are different authors. That's going to be a lot of bookkeeping for a nickel. I just can't figure how this is going to work.
Mr. GREENBAUM. Can I explain that?
Senator McCLELLAN. I know, and I shouldn't have invited you to do so, because at 4 o'clock I have to go to a markup on an appropriations bill. I just have to go, and we have to get through by then. But go ahead. If I don't ask as many questions as you think I should, please understand why.
Mr. GREENBAUM. Mr. Chairman, the blanket license that Williams & Wilkins proposed does not require anybody to pay a nickel a page. It doesn't require them to pay anything per page. You pay it once. It doesn't require any bookkeeping, nothing. It is just the way it is done.
Now there are other publishers who have not yet put this into effect. I guess they would be crazy to put it into effect considering what happened to the Williams & Wilkins Co. when we put it in. We got librarians saying they were going to boycott Williams & Wilkins. I mean, we reasly got a full measure of hell because of what we did.
Now, if the Williams & Wilkins plan is adopted by other publishers, then it will just be a very simple thing. The library just goes and makes the photocopies and that is it. There is no bookkeeping. Senator McCLELLAN. All right. Thank you very much. [The prepared statement on behalf of William & Wilkins follows:]
PHOTOCOPYING AND THE SCIENTIFIC JOURNAL
(A report to the Subcommittee on Patents, Trademarks and Copyrights of the
Committee on the Judiciary United States Senate by The Williams & Wilkins Co., Publishers of Medical and Scientific Books and Periodicals July 25, 1973)
THE WILLIAMS & WILKINS' POSITION
Williams & Wilkins publishes 37 medical and scientific periodicals. It believes that the information contained in its journals should be disseminated as widely