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The American Library Association (ALA) WASHINGTON NEWSLETTER of August 11, 1972 contained the statement that follows:
Williams & Wilkins has recently published "A Statement to Librarians" which announced the establishment of a “Special Institutional Rate" applicable to library subscribers. Such rate is significantly higher than the regular subscription rate, involving an average increase of approximately 1242 percent.
The Statement further advises that libraries may not make photocopies of Williams & Wilkins' works for purposes of interlibrary loan, even if purchased at the Special Institutional Rate. Moreover, it demands that libraries pay a royalty to William & Wilkins of 5c per page per copy on multiple copies of a single work.
Innumerable libraries, librarians, and library trustees throughout the country have requested advice from ALA as to the response they should make to the demands of Williams & Wilkins.
The American Library Association is not in a position to prescribe the response of libraries and librarians, since that response will necessarily vary on the basis of a variety of local considerations.
However, it should be noted that:
First, a number of leading libraries have individually determined that they will not renew their subscriptions at the Special Institutional Rate;
Second, William & Wilkins' assertion that "a license such as that in the insti. tutional subscription rate is a legal requirement” is based on a Commissioner's Report and is not, to date, the decision of the Court of Claims;
Third, the propriety of the Commissioner's Report is being strenuously contested in the Court of Claims by the Federal Government, the American Library Association, the Association of Research Libraries, the Medical Library Association, and a number of other educational groups and institutions ;
Fourth, libraries in which copies are made on coin-operated photocopiers not under library supervision and control, derive substantially no protection which they do not already enjoy under the license granted by the Institutional Subscription Rate;
Fifth, general acceptance of the "use tax” concept of the Williams & Wilkins Institutional Subscription Rate may reasonably be expected to encourage other journal publishers to levy their own "use taxes” at ever-increasing rates;
Sixth, the Institutional Subscription Rate does not authorize copies for interlibrary loans and thus contemplates a continuing and rigorous restriction on access to scholarly materials contained in Williams & Wilkins' publications.
Each library must decide for itself whether it will pay a premium for Williams & Wilkins' works notwithstanding the significant limits imposed on their use, and on the access to them, by the Institutional Subscription Rate.
EXHIBIT 8 (B) Special Libraries Association (SLA) has issued the following statement to its members which was proposed by the SLA Special Committee for Copyright Law Revision and approved by the SLA Board of Directors.
Through its Special Committee on Copyright Law Revision, the Special Libraries Association has been engaged in the ten-year legislative revision effort that is now before Congress. To special libraries the rights to photocopy research materials under a "fair use" principle has been central to the SLA concern with the revision of the copyright law. Based on a recommendation from its Special Committee, the SLA Board of Directors in 1964 reaffirmed the principle of "fair use" as follows:
"A library owning books or periodical volumes in which copyright still subsists may make and deliver a single photographic reproduction of a part thereof to a scholar representing in writing that he desires such reproduction in lieu of a loan of such publication or in place of manual transcription and solely for the purposes of research.”
In view of the recent Williams & Wilkins report, it is now deemed desirable that the Association take a position on the photocopying issue for the guidance of the Association's members. Whether adopted or rejected by the U.S. Court of Claims, the Williams & Wilkins report implies that libraries will be responsible for reimbursing publishers through a subscription surcharge, a per page licensing fee or a similar royalty arrangement. Increased costs to all special libraries will plainly result. Depending on the basis of reimbursement, any of these schemes will encumber the administration of special libraries and will burden their staff everywhere with unnecessary tasks, thus detracting from important functions. Moreover, an inevitable consequence of the opinion, should it stand, would be the inhibition of the business, education and scientific research communities who are the principal users of special libraries.
Pending final judicial action, the Association advises its members to continue copying practices followed heretofore. In the event that individual libraries are approached by publishers desiring to negotiate licensing agreements, royalty pay. ments or subscription surcharge agreements, such requests should be referred to the legal counsel of their company or library, with advice to SLA's New York office of such actions.
EXHIBIT 8 (C)
The following statement was included in the August 1972 issue of MLA NEWS, a publication of the Medical Library Association.
However firmly Williams & Wilkins may be convinced that the Davis report on the copyright suit against NLM and NIH is law, just as firmly the Medical Library Association is convinced that the case is sub judice. Williams & Wilkins has demonstrated its conviction by announcing, for the journals that it publishes, special institutional subscription rates, higher than those charged individual subscribers, "which provides for an automatic license to make singlecopy photocopies of articles” for library patrons (but not for inter-library loan). The right of Williams & Wilkins to seek such additional payments is the subject of review by MLA's legal counsel,
Obviously the Medical Library Association believes that the Williams & Wilkins subscription/photocopy "package” is not in the public interest. Libraries, however, must decide individually whether or not they want to accept this type of proposal. They must weigh the fulfillment of immediate needs against the possibility of weakening the case for legislative provision of single-copy photocopy for medical research and physicians' study. They might also confer with their own institutional counsel.
We are aware that librarians are very conscious of their responsibility for the library's collection. As a means of maintaining the integrity of the collection, they might seek contributions of Williams & Wilkins periodicals to the library by individual subscribers.
Whatever action is decided upon, we suggest that individual institutions and libraries make their opinions known to Williams & Wilkins, to the National Library of Medicine, to the Department of Justice, Civil Division, attention of Thomas J. Byrnes, and to the Medical Library Association.
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
NATIONAL INSTITUTES OF HEALTH,
Bethesda, Md., September 12, 1972. EUGENE B. BRODY, M.D., Editor, Journal of Nervous and Mental Disease, Institute of Psychiatry and
Human Behavior, University of Maryland School of Medicine, Baltimore,
Md. DEAR DR. BRODY: We are addressing this letter to you in your capacity as Editor of the Journal of Nervous and Mental Disease. As you probably are aware, your publisher, the William and Wilkins Company, has been involved in a copyright infringement suit against the Federal Government. Last February, a report was rendered on the case which was heard before a Commissioner of the U.S. Court of Claims. Subsequently, the Williams and Wilkins Company proposed a new subscription rate schedule for institutional recipients which includes an automatic photocopying license for library patrons and a royalty of five cents per page for articles copied for interlibrary loan.
We have indicated our willingness to pay higher subscription rates; however, we cannot accept the implication that a license for photocopying is necessary. We are therefore faced with the prospect of lapsing the Library's subscription to your journal.
For many years, the National Library of Medicine has indexed the articles contained in your journal and we would be pleased to continue to do so in the future. However, if we are not able to obtain a regular subscription this will no longer be possible unless some other means of acquiring your journal is found.
I thought you should learn in advance why we may no longer be able to index your journal rather than have you discover this after the fact. Sincerely yours,
MARTIN M. CUMMINGS, M.D.,
THE WILLIAMS & WILKINS CO.,
Baltimore, Md., October 2, 1972. TO OUR CUSTOMERS AND FRIENDS: After many discussions with librarians, administrators, scientists, and scholars, The Williams & Wilkins Co, has arrived at an arrangement concerning the photocopying of copyrighted material which we hope you and the rest of your library staff will find appropriate.
BACKGROUND OF W&W POSITION
First, let us say that we have been publishing medical journals since 1909 and it is our hope and intention to continue doing so for as long as we are able. In most instances, the journals we publish have made modest earnings for their societies as well as a fair margin of profit for The Williams & Wilkins Company. This, we feel, is a reasonable and proper situation. We also feel, and have always felt, that our function as publishers is an important and necessary one to the rapid dissemination of scientific information. Neither the medical society nor The Williams & Wilkins Company is in the publication business to make a quick killing or exorbitant profits. But as publishers and businessmen, we would be remiss if we did not consider all the factors that influence the economic viability of our journals. For when this economic viability is threatened, so too is the very existence of the journals and their role in the spreading of vital medical and scientific information. Over a period of time, an exhaustive analysis of the situation convinced us that uncompensated photocopying could lead to the demise of the scientific journal as we know it. We did not, and do not, wish to discourage scholars and physicians from photocopying journal articles. In fact, we encourage this as a most logical and practical method of disseminating information. It is our contention, however, that the costs of the journal must be spread equitably among all its users to offset the losses in revenue due to dwindling subscriptions.
W&W VERSUS THE UNITED STATES
To establish this principle, we eventually found it necessary to bring suit against the federal government. In February 1972, Commissioner James Davis of the U.S. Court of Claims ruled in favor of The Williams & Wilkins Co., thereby upholding our contention that we are entitled to "reasonable and entire compensation for infringement of copyrights." Our action following this decision has been consistent with our long term objectives, which are to continue publising journals and thereby serve the scientific community, while earning revenue for their societies and a reasonable profit for ourselves.
W&W'S FIRST PROPOSAL
Instead of resolving the copyright situation, however, Commissioner Davis' ruling seemed only to generate hostility and confusion. Part of this confusion, we must confess, was brought about as a result of our own action. Since we deemed it desirable to implement the ruling as soon as possible, The Williams & Wilkins Co. established a plan that would spread the cost of our journals among all of their users while continuing to allow the unimpeded flow of knowledge. As you know, our plan called for a modest rise in the journal subscription rate to institutions which would include a reproduction license. In return for this license which, incidentally, averaged less than four dollars for the 56 year term of the copyright-we proposed to allow unlimited single-copy reproduction of all articles, current and past, in journals published by The Williams & Wilkins Co. carrying an institutional rate. (For a complete list of these journals, please see enclosure.) In addition, the plan called for a five-cents-per-page fee for interlibrary loan reproductions. Since it is our position that a Commissioner's ruling, unless reversed, has the full weight of law, it seemed logical that we proceed from his decision by requesting that the institutional reproduction fee be paid. Perhaps naively, we did not anticipate the strenuous objections by some segments of your library community. Until the government's appeal has been processed, it is their contention that the ruling does not have the weight of law and that compliance with our new procedures would imply acceptance of our position.
REACTION TO THE PROPOSAL To further complicate the situation, during the months following our proposed plan announcement, much confusion and conflicting reports circulated as to our intentions. Some exaggerated charges stated that our subscription rates would soar to four or five times what they are at present; it was charged that burdensome bookkeeping would be required by librarians; some claimed that we even wished to curtail the practice of photocopying altogether. As a result of these charges, an atmosphere of distrust was created with both sides maintaining that they could not compromise their legal positions. In a letter to The Williams & Wilkins Co. of July 31, 1972, the National Library of Medicine, stated that it is its position that it would accede to a rise in price based on an institutional rate to all libraries, great and small, but could not accept the implication that a license for photocopying is necessary.
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 uses with royalty-free, singlecopy 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 inter-library loan fee until the appeal of our case has been heard. In the meantime, we hope to work with libraries in an effort to develop a solution which will be mutually acceptable. Both of these concessions have been made with a sincere desire to see that there is no interruption whatever to the flow of scientific information between you and your patrons which would result from subscription cancellations. We are sure this desire coincides with your own objectives.
To facilitate greater cooperation, please feel free to call Mrs. Andrea Albrecht collect, c/o The Williams & Wilkins Company, with any questions, comments, or suggestions you may have. Sincerely,
WILLIAM M. PASSANO,
Chairman of the Board.
JOURNALS WHICH CARRY BOTH AN INSTITUTIONAL RATE AND AN INDIVIDUAL RATE ? Acta Cytologica ($19.50)
Journal of Trauma ($27.00) American Journal of Physical Medicine Journal of Urology ($40.00) ($14.00)
Laboratory Investigation ($45.00) Current Medical Dialog ($11.00)
Medicne ($15.00) Drug Metabolism and Disposition Obstetrical and Gynecological Survey ($42.00)
($29.00) Fertility and Sterility ($33.00)
Pediatric Research ($32.00) Gastroenterology ($35.00)
Pharmacological Reviews ($18.00) Investigative Urology ($22.50)
Plastic and Reconstructive Surgery Journal of Criminal Law, Criminology ($30.00) and Police Science ($18.50)
Radiological Technology ($11.00)
Stain Technology ($12.00)
($23.00) Journal of Pharmacology and Experi
mental Therapeutics ($70.00) NOTE.-Institutional rate in ( )
JOURNALS WHICH CARRY AN INDIVIDUAL RATE ONLY ? Cancer Research ($50.00)
British Veterinary Journal ($20.00) International Journal of Gynaecology Clinical Radiology ($18.00) and Obstetrics ($10.00)
Community Health ($12.15) Journal of Neurosurgery ($35.00) Comparative and General PharmaJournal of Biological Chemistry
cology ($40.00) ($120.00)
Dental Practitioner ($12.15) Applied Spectroscopy ($15.00)
Injury ($17.85) British Journal of Plastic Surgery Insect Biochemistry ($40.00) ($14.00)
International Journal of Biochemistry British Journal of Surgery ($28.50) ($40.00) British Journal of Urology ($16.50) Tubercle ($19.85)
NOTE.—Non-Institutional rate in ( )
THE WILLIAMS & WILKINS Co.,
Baltimore, Md., Jan. 11, 1973. DEAR LIBRARIAN : On October 2nd, 1972, we sent you a detailed account of our changed thinking about licensing the photocopying of copyrighted materials, in light of the unfavorable responses generated by our original position. That letter covered the background of our beliefs about photocopying; our suit against the Federal Government; Commissioner Davis's opinion; our first proposal; and the reaction to that proposal from members of your profession. We concluded with a solution to the problem which, to the best of our knowledge, has proved acceptable to the entire library community.
However, we should like to re-state that solution, as there are still some misconceptions about our changed position.
1) We accept the position advocated by the NIH-NLM.
2) Our new institutional rates (see enclosed rate sheet), have no connection with a license to photocopy, implied or otherwise.
1 These journals are published by The Williams & Wilkins Co. and in most cases the copy. right is in the name of W&W.
2 These journals are published by others for which the Williams & Wilkins Co. performs certain services under contract. Policy is set for those journals by their proprietors and is not within the province of W&W. The exception is the International Journal of Gynaecology and Obstetrics which is published by W&W but carries no Institutional rate.