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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 payments 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.

EXHIBIT 9

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 Williams 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,

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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.

THE SOLUTION

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)

Current Medical Dialog ($11.00)

Drug Metabolism and Disposition
($42.00)

Fertility and Sterility ($33.00)
Gastroenterology ($35.00)
Investigative Urology ($22.50)
Journal of Criminal Law, Criminology
and Police Science ($18.50)
Journal of Histochemistry and Cyto-
chemistry ($33.00)

Journal of Immunology ($58.00)

Journal of Investigative Dermatology $(43.75)

Laboratory Investigation ($45.00)
Medicne ($15.00)

Obstetrical and Gynecological Survey
($29.00)

Pediatric Research ($32.00)
Pharmacological Reviews ($18.00)
Plastic and Reconstructive Surgery
($30.00)

Radiological Technology ($11.00)
Soil Science ($23.00)

Stain Technology ($12.00)
Survey of Anesthesiology ($13.00)
Survey of Ophthalmology ($26.00)
Transplantation ($43.00)

Journal of Nervous and Mental Disease Urological Survey ($16.00)

($23.00)

Journal of Pharmacology and Experi

mental Therapeutics ($70.00)

NOTE.-Institutional rate in ()

JOURNALS WHICH CARRY AN INDIVIDUAL RATE ONLY 2

Cancer Research ($50.00)

International Journal of Gynaecology
and Obstetrics ($10.00)

Journal of Neurosurgery ($35.00)
Journal of Biological Chemistry
($120.00)

Applied Spectroscopy ($15.00)
British Journal of Plastic Surgery
($14.00)

British Journal of Surgery ($28.50)
British Journal of Urology ($16.50)

NOTE.-Non-Institutional rate in ()

British Veterinary Journal ($20.00)
Clinical Radiology ($18.00)
Community Health ($12.15)
Comparative and General Pharma-
cology ($40.00)

Dental Practitioner ($12.15)
Injury ($17.85)

Insect Biochemistry ($40.00)
International Journal of Biochemistry
($40.00)
Tubercle ($19.85)

2

EXHIBIT 11

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.

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.

3) Libraries may continue to supply their users with royalty-free, single-copy reproductions of our journal articles.

4) We have withdrawn, without prejudice, our proposal for the five-cents-perpage inter-library loan fee for copying.

We hope that this will help clear up any doubts that you may have had about our subscription rates and our attitude toward photocopying.

Sincerely yours,

EXHIBIT 12

PATRICIA H. MORRIS,
Subscription Manager.

APRIL 30, 1973.

Dr. MARTIN CUMMINGS,

Director, National Library of Medicine,
Bethesda, Md.

DEAR DR. CUMMINGS: We at Williams & Wilkins are most anxious to see a solution to the interlibrary loan problem. We realize that the problem must be solved to the satisfaction of the medical libraries as well as to ourselves. Since my last visit with you, I and my colleagues have given much thought to the subject.

Let me tabulate some of the requirements which in our opinion must be met if a plan is to be mutually satisfactory.

1. It should not require record keeping or accounting on the part of the libraries over and above what they are doing at present.

2. It should recognize that photocopying is a valuable library tool which should be utilized whenever the professional librarian believes that it is useful.

3. It should compensate the scientific journals for the loss of subscription income which is the result of the interlibrary loan procedure.

4. Our established institutional rate should include this compensation and our permission for reprography for interlibrary loan and over-the-counter copying.

5. The monies collected under the plan should be built into the subscription price of the journals and should be related to the basic institutional rate so as to assure that future variations will be in direct proportion to changes in that basic rate.

To satisfy these requirements we have developed the following plan:

The subscription price to the 11 Regional Libraries for the 1974 journals will be no greater than twice the institutional rate and for the Medical School Libraries and the 500 ± medical libraries involved in the interlibrary loan operation no greater than one and one half times the institutional rate.

In all instances where libraries of any size subscribe to two or more copies of a journal the additional copies will be billed at the individual subscriber rate. This is with the understanding that the additional copies are for intramural use and are not to be turned over to a branch of the parent library or any other separate institution.

We fully realize that the success of this (or any other) plan is primarily dependent on its meeting with the approval of NLM and upon NLM's willingness to recommend it to the medical libraries throughout the country. The details of the plan (but not its principles) should be subject to adjustment as industrywide surveys make available additional knowledge of interlibrary loan operation. It is our firm belief that you and we agree on the realities of this situation and that there is a genuine desire on both sides to arrive at an amicable and satisfactory solution to the problem. We offer this as such a solution and we await with interest your reaction to it.

Most sincerely,

DANIEL H. COYNE,

President, Publishing Services Division.
WILLIAM M. PASSANO, Sr.,
Chairman of the Board.

Mr. BRENNAN. The next witness and the last witness on this issue is the president of the Authors League.

20-344-73-12

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