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and as quickly as possible by any method now known, including photocopying, or which may become known. Williams & Wilkins has never so stated nor has any desire to interrupt or halt the process of dissemination through photocopyingbut it must be compensated for photocopying of its copyrighted materials so that the journals can remain economically viable and independent of government subsidy.
The journals involved in Williams & Wilkins v. U.S., now pending in the U.S. Court of Claims, are universally recognized as leading journals in their fields, but they have extremely limited circulations, e.g. 1,088 to 17,762, which are a function of the relatively limited market potential for the material. If Congress decides that these journals can be photocopied without reasonable compensation to the publisher many will eventually die because it is virtually impossible to increase the number of subscribers to medical and scientific journals beyond those in the discipline served by the particular journal and those relatively few libraries which have chosen to serve such specialists. However, while the number of subscribers remains static, the costs of publication continually increase. At the same time photocopying technology continues to improve, enabling copies to be made more cheaply and efficiently. If subscription prices are raised to cover costs plus a reasonable profit, the point is soon reached where, instead of subscribing, some users of the material will photocopy. And
every time there is a subscription price increase and the photocopying technology improves, there is a greater incentive to photocopy. Thus, raising subscription prices does not solve the problem of providing sufficient income to cover cost because it simply encourages fewer subscriptions and more photocopying. Eventually, there will be so few subscribers and the prices will be so high that the journal will cease publication.
· The only way to save private limited circulation technical journals from extinction is to broaden the income base. This can only be done by spreading the costs of publication among a greater number of users, including those who use the journal through photocopying. A photocopying license will enable subscription costs to be kept at a reasonable level and place the economic support of the journal -moré equitably upon those who value its use.
Libraries pay, among others, the Xerox Corporation for the copying equip. ment, 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. Yale University, the New York County Medical Society Library, and many other libraries charge a "transactional" charge for photocopying to cover these obvious costs. Someone has to pay for these costs and we see nothing wrong with those libraries which pass these costs on to those who request the photocopies. We also think it entirely appropriate that to these many costs there be added a fair and reasonable royalty to the publisher to ensure that the publisher can continue to make the obviously useful work available in the future.
By means of blanket licenses, clearing houses, 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 service. These costs can then easily be passed on to the patron who orders the photocopy. We ourselves favor a blanket license plan where the license is incorporated in the subscription price of the journal because it requires no record keeping of accounting on the part of the library.
The doctor in North Dakota or Hawaii who has to obtain a copy of a journal article from Yale University will have to pay a minimum charge of $3.50 plus, perhaps, an additional service charge to his local library. Certainly a slight extra charge by Yale to cover the copyright royalty would not be unfair or interfere with the service. The alternative would be to have no copyright royalties paid by anyone and, thus, eventually destroy the journal when photo copying becomes more and more available through microfiche, computers, lasers or who know what.
The costs of publication should be equitably divided among those who use the journals by buying printed copies and those who use it by photocopying. If only subscribers to printed copies need pay for their information libraries will cut costs by cancelling subscriptions and servicing their patrons by means of photocopies obtained from other libraries. The library, by charging the patron for the cost of the photocopies, will have serviced the patron, saved the cost of the subscription, and perhaps even received a contribution to its overhead from its charge to the patron. Williams & Wilkins has, of course, no objection to this means of information dissemination—but if it cannot receive a royalty for the copying it will have to raise its prices to those libraries who continue to subscribe and to its individual subscribers. As prices get higher, there will be more incentive to photocpy until the journal is so expensive that it is discontinued.
Furthermore, to put the burden of increased costs on the individual subscriber is, in addition to being self-defeating, simply not equitable. The number of subscribers is decreased because of photocopying. Those who do not generally photocopy, i.e. the individual subscribers, should not be required to bear the substantial increased costs per unit created by the decreased cir-culation which has been caused by the photocopies.
Williams & Wilkins believes that those who use the copyrighted information in its journals by photocopying should contribute to the cost of publication 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.
CHRONOLOGY OF THE DEVELOPMENT OF THE LICENSING/INSTITUTIONAL RATE PLAY
Discussions of a plan to allow libraries to furnish their customers with photocopies of copyrighted articles were begun before the February 16, 1972 decision from Commissioner Davis of the Court of Claims. Above all, the plan was not to be a cumbersome administrative or economic burden upon libraries. It was to include a simple system of payment to broaden the income base required to support the journals. This will help offset the loss of income where photocopies will replace the purchase of multiple subscriptions, library and personal subscriptions. Basic ideas about a proposed plan were discussed with several libraries.
When the Davis decision was received, we had a "digest” of the opinion prepared and mailed to more than 8,000 friends and customers of the house, among them some 5,800 libraries. A covering letter (Ex. 1) attempted to allay any concerns that Williams & Wilkins had intentions of curtailing photocopying or of a high-priced and complicated royalty payment system.
Even before a Williams & Wilkins licensing plan was announced, a memorandum (Ex. 2) from L, L. Langley, Ph. D., Associate Director for Extramural Programs at the National Library of Medicine was sent to NLM's Resource Grants grantees stating, "The express purpose of this memorandum is to inforın you that grant funds from the National Library of Medicine must not be used for royalty payments to publishers without prior approval from the National Library of Medicine.” (This memo did not come to the attention of Williams & Wilkins until sometime after our plan was formally announced in June 1972.)
Full-page ads (Ex. 3), again stressing that we were developing a simple, workable licensing plan, were purchased for the following journals : "Bulletin of the Medical Library Association” April 1972 issue; "College and Research Libraries" April 1972 issue; "Library Journal” April 15, 1972 issue; and "American Libraries" May 1972 issue.
In June 1972, a letter was sent to our institutional customers formally announcing and describing our licensing plan (Ex. 4) as follows:
1. Beginning 1973, W&W journals would carry an institutional rate, ranging $1-$10 higher than the individual subscription rate.
2. The institutional rate would carry with it an automatic license to make single copy photocopies for patrons in the regular course of library operations.
3. This institutional rate would cover the making of single copy photocopies for the life of the volume and would permit photocopies to be made from all previously published volumes at no additional charge. No additional payments or record keeping would be involved.
4. Multiple copies could be made upon remittance of 5€ per page per copy, but permission was not granted for copies made for interlibrary loan use.
5. Institutions would be entitled to a refund of the license portion of the subscription rate if no copying of the journal took place.
On June 23, 1972 a personal letter was sent to each Director of the 11 Regional Medical Libraries (Ex. 5) discussing the institutional rate and announcing our intention to license these libraries, which were set up for the purpose of providi ing interlibrary loan copies, at the rate of 5€ per page per copy.
BACKGROUND OF THE WILLIAMS & WILKINS LICENSING PLAN
W&W journals would carry an institutional rate, the difference between the individual subscription rate and the institutional rate would constitute the license fee. The fee would be based on the number of text pages published in the journal in 1972, the susceptibility of the journal to be photocopied (based on our experience with reprint requests) multiplied by a ratio no higher than 5€ per page. (Five cents per page is our average price per page for all printed copies of all our journal.) As a result of using this formula and our desire not to place too great an economic burden upon the library whose practice is not to pass costs on to patrons, the average increase in subscription prices to institutions was $3.65. In all cases the photocopy fees averaged less than one cent per text page published in 1972, however the actual license was to be effective for photocopying materials from Volume 1 through the 1973 volume of the journals. This amounts to thousands of pages for each journal, thus making the average photocopying price per page extraordinarily minimal.
The license fee would apply to single copy photocopying only, as librarians seemed to concede that they do not permit multiple copies. However, to facilitate dissemination where multiple copies were needed, the library was permitted to do so upon remittance of 5€ per page per copy.
The resulting institutional license fee was too minimal to cover income losses in cases of the interlibrary loan system, which absolutely replaces library subscriptions. To charge a flat rate for every library, great and small, sender or receiver of interlibrary loan copies, would be inequitable. Since the interlibrary loan system already provided for the administration of enumerating individual articles, it seemed reasonable that these "lending or sending" libraries could more equitably be licensed on a pay as you go basis.
On July 31, 1972, Dr. Martin Cummings, Director of the NLM replied to our licensing plan (Ex. 6) with the following: "It is our position that we would accede to a rise in price based on an institutional rate which would be applied 'to all libraries, great and small', but could not accept the implication that a license for photocopying is necessary. We would be pleased to renew our subscriptions at the individual rate, or at an institutional rate which does not include a license for photocopying. If you insist upon tying the renewal of our subscriptions to payment of a license fee, however, we shall have no option other than to let them lapse."
This statement from Dr. Cummings, his similar statement of July 31, 1972 (Ex. 7), along with published statements by the American Library Association, The Special Libraries Association, and the Medical Libraries Association (Ex. 8) in response to our licensing plan, brought forth a deluge of letters from librarians threatening a boycott of W&W journals on the basis that a license for photocopy was not necessary.
WE WITHDRAW OUR LICENSING PLAN
Because such a boycott would affect both The Williams & Wilkins Co. as well as the professional societies of which we publish not only in subscription income but also in the indication by the National Library of Medicine that it would ex. clude our journals from listing in Index Medicus (Ex. 9), we had no alternative but to accept the position advocated by the NLM.
On October 2, 1972 we again sent letters (Ex. 10) to all of our customers and friends describing our new position as follows: "In order to allow the NLM and all libraries to subscribe to W&W journals at increased rates and include them in Index Medicus, we now accept the NIH-NLM position. Our new institutional rates which we shall continue to request shall have no connection whatever with a license to photocopy, implied or otherwise. In short, libraries may continue to supply their users with royalty free single-copy reproductions of W&W journal articles as they have done in the past. As stated many times, we have no desire to obstruct the dissemination of scientific information between library and scholar, which would certainly be the result of cancellation of subscriptions. Further, in the same spirit we are, again without prejudice, withdrawing our proposal for the five-cents-per-page interlibrary loan fee until the appeal of our case is heard.”
À letter of similar content (Ex. 11) was again mailed to all libraries on January 11, 1973.
We stand ready and willing to reinstate the license to photocopy as a part of the institutional subscription price as and when Commissioner Davis' opinion is confirmed in the appeal of our case before the Court of Claims. Furthermore, we have developed a similar type plan to deal with the problems connected with the Interlibrary Loan procedures. The salient points of this plan are described in our letter of April 30, 1973 to Dr. Martin Cummings (Ex. 12). This implementation of the Interlibrary Loan plan also awaits the outcome of our lawsuit in the Court of Claims.
STATISTICAL PROOF OF MARKET LOSS
Although common sense would tell one that the making of photocopies of millions of pages of articles appearing in scientific periodicals would have an adverse effect on the sale of subscriptions, it has been difficult in the past to statistically prove this contention. However, library subscriptions to Williams & Wilkins journals for the past three years now show beyond a reasonable doubt that the Interlibrary Loan procedure is damaging our market.
In 1971 we had 24,217 library subscriptions to our journals; in 1972, 24,502 ; and as of July 1, 1973, 23,363.
As the figures indicate, there was little library circulation growth in ’72 compared to '71, and the current '73 figures indicate our circulation will actually decrease by about 600 subscriptions among libraries.
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 emergence of the Community Hospital Library, but libraries are purchasing smaller numbers of journals, certainly of Journals published by Williams & Wilkins. In 1973 we had about 300 more libraries (5,800 total) purchasing our journals than in 1971 but as the fig res 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. We recently surveyed a random sampling of librarians who had cancelled their subscriptions and asked how they intended to service patrons who might want to use the cancelled journal. Invariably, the replay was, "by means of interlibrary loan,” which means one library supplying another with a photocopy. If this trend continues, we could experi. ence a 50% decrease in library circulation over the next five years while the number of different 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 interests 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.
Other figures which we might sight fail to show the same precise cause and effect relationship as is shown by reduction in library subscriptions. For example, we believe that persons who live in the United States and who do not receive a journal as a part of their membership in a sceintific society are the ones most likely to photocopy rather than become or to remain subscribers to the journal. This belief is borne out by the fact that this class of subscribers has actually decreased in 1973 as compared to 1972 with 11 of the journals which we publish and this despite the fact that we have greatly increased our promotional efforts. However, on the other hand, 15 of our journals have responded to our intensified promotion and in these instances the number of domestic non member subscribers has increased.
The following clipping from the July 20, 1973 issue of Science points out the economic pressure to photocopy rather than to subscribe.
THE PRICE OF BOOKS The price of scholarly books has increased drastically in recent years. The books reviewed in Science as of 1 June cost 5.0, 5.3, 6.3, 7.2, 7.7, 8.8, 8.9, and an
1 For a description of Interlibrary Loans for Hospital Libraries see Chap. 15_of Library Practice in Hospitals- A Basic Guide, edited by Harold Bloomquist, et al, The Press of Western Reserve University, 1972.
incredible 11.0 cents per page. As the cost of copying has dropped in recent years, one can copy a book at 5 cents a page in most libraries on public copiers and, by copying two pages at a time, reduce the cost to 2.5 cents per page. Of course, this is an infringement of the copyright but, at today's prices, a practice that will become increasingly common. Book publishers appear to be urgently in need of technological advances that will cut the cost of production.
DAVID LESTER, Psychology Program, Stockton State College, Pomona, N.J., Science, Vol. 181.
We fear that no technological advances can cut the cost of production sufficiently to make up for the fact that the photocopy at present bears no part of the editorial and composition costs which are incurred before a single copy can be reproduced.
New Technological Uses of Copyrighted Works ? : Until the last decade, the vast majority of library resources were in printed form. Library procedures were accomplished using paper products, with an occasional assist from the telephone. The recent proliferation of new media for packages of information has been surpassed only by the rapid birth and growth of technologists concerned with transmission, description, identification and retrieval of these information packages.
Libraries are involved in every phase of information processing from identification and ordering through retrieval and dissemination.
Examples of some current and future library-usable technologies : 1. Facsimile Transmission
Facsimile transmission devices can rapidly transmit exact copies of information over long distance network transmission points. While the systems currently on the market are costly and not quite compatible to one another, it is reasonable to believe that problems will be overcome in the future and could provide a working system for the rapid transmission of materials from one library to another. 2. Satellites
NASA and HEW are jointly exploring the use of experimental satellites for the exchange of information; one of the tests will involve the exchange of interlibrary loan materials. 3. Video Telephones
Video telephones which display pictures from one telephone to another are presently in operation. Certainly future technological improvements will bring about decreased operational costs and hard copy reproductions of video displays.
We believe that these few examples of new technologies in information dissemination should be the subject matter of study for the National Commission on New Technological Uses of Copyrighted Works proposed in Title II of S. 1361.
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. U.S. will aid in pointing the way in this area.
THE WILLIAMS & WILKINS Co.,
Baltimore, Md. EXHIBIT 1
To OUR FRIENDS AND CUSTOMERS : On February 16, 1972 a Commissioner of the United States Court of Claims issued an opinion sustaining our claim for copyright infringement resulting from the unauthorized reproduction of our copyrighted materials on photocopying machines in certain Government libraries. The Commissioner held that we are entitled to "reasonable and entire compensation.” We have prepared a digest of the Commissioner's opinion, a copy of which
2 See “Advanced Technologies/Libraries" published by Knowledge Industries, Inc. 1971-72.
3 Also see Chap. 16 Health Sciences Information Retrieval Systems Library Practice in Hospital-A Basic Guide Edited by Harold Bloomquist, et al. The Press of Čase Western Reserve University, 1972.