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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4) We have withdrawn, without prejudice, our proposal for the five-cents-perpage inter-library loan fee for copying.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,
PATRICIA H. MORRIS,
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,
Chairman of the Board.
Mr. BRENNAN. The next witness and the last witness on this issue is the president of the Authors League.
STATEMENT OF JEROME WEIDMAN, PRESIDENT, THE AUTHORS
LEAGUE OF AMERICA, INC.; ACCOMPANIED BY IRWIN KARP, COUNSEL
Mr. WEIDMAN. Mr. Chairman and members of the subcommittee, my name is Jerome Weidman. I am president of the Authors League of America, a national society of professional authors and dramatists. The Authors League appreciates this opportunity to present its views on problems of library photocopying related to the copyright revision bill.
The Authors League has submitted a statement on the problem of library photocopying and I respectfully request that it be included in the record.
Senator McCLELLAN. It will be included.
With your permission, I would like to summarize my statement, and comment very briefly on it. I am accompanied by Mr. Irwin Karp, who is counsel of the Authors League of America.
Senator McCLELLAN. Very well.
Mr. WEIDMAN. This morning, spokesmen for the publishers of scientific and technical periodicals, discussed the effects of uncompensated library copying. The Authors League shares their view that such uncompensated reproduction of their articles is damaging and that the damage will increase. Much of their testimony naturally focused on how library copying of scientific articles affected publishers.
However, library photocopying has also an adverse economic effect on professional authors. These authors earn all of or a substantial part of their income from writing. After their works first appear in periodicals or books, they are often reprinted-with the author's permission—in anthologies and textbooks. Many authors earn much of their income from such reprinting.
Poets and essayists, for example, receive very little when a poem or essay is published in a periodical. But they may license several different publishers to reprint it in anthologies, or collections. And although each fee is small, the accumulation of fees can produce a modest reward for work of substantial literary value.
Under the proposed exemption, libraries could reproduce single copies of poems and articles without compensation to the author. These copies can replace several copies of an anthology or book in a library or college book store. Authors must be compensated for uses of their works by audiences reached by this new process. Otherwise, they will be deprived of substantial portions of their incomes.
It must be emphasized that this one-time reprinting involves unlimited copying. Under the libraries proposed exemption, any library could reproduce many copies of an entire article—one copy for each of the several individuals who orders it.
Our dispute with the libraries does not involve all library copying. The controversy centers on the libraries' claim that they must be permitted to reproduce reprints of entire articles on any subject. Moreover, the heart of controversy, is not whether they should be permitted to engage in this copying—but whether copyright owners should be compensated when libraries reproduce copies of their works.
Copyright owners have emphasized that the only real issue is reasonable compensation for library copying of their articles. Copyright owners have accepted the principle that workable clearance and licensing conditions should-and can be established to provide reasonable compensation to copyright owners.
The House Judiciary Committee said this is the fair and rational solution to the problem. But library spokesmen have flatly rejected it. Therefore, the National Commission should recommend reasonable licensing systems.
We thank the subcommittee for this opportunity to present this statement.
Senator McCLELLAN. Fine. Thank you.
SUBCOMMITTEE ON PATENTS, TRADEMARKS AND COPYRIGHTS,
July 31, 1973.
STATEMENT OF THE AUTHORS LEAGUE OF AMERICA ON "LIBRARY PHOTOCOPYING"
AND S. 1361
Mr. Chairman and Members of the Subcommittee: My natme is Jerome Weidman. I am president of The Authors League of America, a national society of professional authors and dramatists. The Authors League appreciates this opportunity to present its views on problems of "library photocopying" related to the Copyright Revision Bill. May I request that this statement be included in the record ?
We respectfully recommend to the Subcommittee that:
1. The library associations' proposal for a "library reproduction" exemption should be rejected.
2. The National Commission on New Technological Uses of Copyrighted Works should be established; and it should investigate and make recommendations as to
(a) “workable clearance and licensing conditions" for the library reproduction of copyrighted works, the solution recommended by the House Judiciary Report, in those words; and
(6) "such changes in copyright law or procedures that may be necessary to assure for such purposes access to copyrighted works, and to pro
vide recognition of the rights of copyright owners." 3. Sec. 108 should be revised to eliminate ambiguities which would destroy the rights of authors and publishers.
4. Section 107 should be retained. However the judicial doctrine of fair use (which it simply reaffirms) should not be expanded by interpretation, in the Committee report, to “normally" include so-called "single-copy” reproduction of an entire article.
THE DEMAND FOR A LIBRARY REPRODUCTION EXEMPTION
The Association of Research Libraries and the American Library Association seek an exemption (through a new Sec. 108(d) (i)) permitting libraries or archives (i) to reproduce copies of articles and portions of books and (ii) to reproduce, under loose conditions, copies or phonorecords of entire books or other copyrighted works. Similar exemptions have been proposed in the past and rejected by this Subcommittee and by the House Judiciary Committee. For the reasons discussed below, the Authors League urges the Subcommittee to reject the library associations' current effort to create this damaging limitation on the rights of authors and other copyright owners. "Copyright Owners", it should be noted, include authors, non-profit societies which publish technical and scientific journals (e.g. American Chemical Society), non-profit publishers of books and journals (e.g. the university presses represented by The Association of American University Presses), and for-profit publishers.
The context of the Issues
Clause (1) of the proposed library exemption would allow libraries to engage in unauthorized, uncompensated "one-at-a-time reprinting” of entire articles, and portions of books and other works.
"One-at-a-time reprinting" is not an argumentative or pejorative term. It is a phrase used by experts to describe the process of disseminating articles, chapters from books, and entire books to readers and users—by reproducing a single reprint to fill each individual order. Each copy, made by Xerox or other process, is an exact reprint of the original-line by line, letter by letter, as originally set in type. The process of one-at-a-time printing is now well-established. It is used by commercial reprint publishers, such as University Microfilms, to supply copies of older books to individual customers, it is used by journal publishers; and it is vigorously employed by several large libraries which serve as reprint centers for the patrons of many other libraries.
The process involves unlimited reproduction of copies of a given article or other work. The reprint publisher produces one copy for each order; but it produces as many copies of a work as there are orders for it. Similarly, under clause (1) of the librarians' proposed exemption, any library could reproduce many copies of an entire article or portion of a book-one copy for each of the several individuals who orders it. And any library could reproduce many "single copies” of each article in a periodical issue, so long as it provided one copy per order. The Issues—And Positions of the Parties
Copyright owners agree that certain copying of copyrighted works can be done by libraries without permission or compensation-i.e. copying which falls within the scope of fair use. And librarians agree that some library reproduction of copyrighted works is, and should be, copyright infringement.
But there is sharp disagreement over library reproduction of entire articles, and similar portions of entire books. Library spokesmen demand that libraries be permitted to reproduce copies of any article and distribute them, one-at-atime, to persons who order them, without the copyright owner's permission or compensation. While library spokesmen have focussed their demand on scientific technical and scholarly articles, their proposed exemption would give libraries the power to reproduce copies of any article or "similarly” sized portion of any book or other work.
Libraries seek power to reproduce these copies without compensation to the copyright owner-even though (1) copies are available from the copyright owner, directly or through its licensed reproduction service, or/and (2) the copyright owner will authorize the libraries to make the copies, provided reasonable compensation is paid to the copyright owner under "workable clearance and licensing conditions."
Copyright owners contended that such unauthorized, uncompensated library reproduction of entire articles and "similarly" sized portions of entire books and other works is not permitted, and should not be permitted, under the Copyright Act. They have made it clear that the only real issue is reasonable compensation to copyright owners for library one-at-a-time reprinting of their articles and other works. Copyright owners have accepted the principle that “workable clearance and licensing conditions" should-and can be established to authorize libraries to produce copies of these materials, and to provide reasonable compensation to copyright owners.
“Workable clearance and licensing conditions”, as the House Judiciary Committee emphasized (Rep. 83, p. 36) are the fair and rational solution to the problem. But library spokesmen have flatly rejected it-in discussions with representatives of copyright owners, and in their current demand for an exemption permitting this type of one-at-a-time reproduction by libraries. Library spokesmen have contended that copyright owners must not be compensated. Their position poses two paradoxes. First, libraries do pay to reproduce copies of entire articles and other works; they pay the Xerox company and other manufacturers of equipment and supples very handsome compensation for providing the tools of one-at-a-time reprinting; they pay their employees for the work involved in producing the copies; the reprinting libraries often charge substantial amounts to other libraries for reproducing copies for their patrons. Second librarians are deciding that public funds or funds provided by taxdedurtihle contributions should not be used to compensate those who make their
1 University Microfilms secures licenses from the copyright owners and pays them royalties.
one-at-a-time reprinting possible—the copyright owners who produce the articles and books that are the grist for their reproduction mills. By contrast, librarians have also made the decision that the cost of producing the copies must be absorbed by libraries, and no charge made to the readers and users. The Proposed Library Exemption Destroys the Balanced Solution Envisioned by
Congress The reports of the House Judiciary Committee, and the draft Report of this Subcommittee, envisioned a 3-part solution to the problems of library copying which would serve the legitimate needs of library patrons, protect the right of copyright owners to reasonable compensation for the use of their property (and for their investment and work in creating it), and preserve the independent, entrepreneurial system of creating and disseminating works of literature, science, technology and art. The solution is based on three components: (1) fair use; (2) "workable clearance and licensing conditions”, and (3) the principle of "availability", underlying Sec. 108 of S. 1361. The librarians' proposed library reproduction exemption destroys this balanced solution. (1) Fair Use
As the House Judiciary Report, and the draft Report of this Subcommittee indicate, the doctrine of fair use applies to libraries; and library copying which is a fair use can be done without the permission or compensation of the copyright owner. The House report said : “Unauthorized library copying, like everything else, must be judged a fair use or an infringement on the basis of all the applicable criteria and the facts of the particular case.” (H. Rep. No. 83, p. 36).
A principle purpose of the proposed library reproduction exemption is to alter that concept, and permit all library copying of entire articles and similarly sized parts of books and other works. If the library exemption simply authorized copying which was fair use, it would be unnecessary, and should be rejected to avoid confusion. To the extent that it permits unauthorized, uncompensated library copying which exceeds fair use, the exemption should be rejected because “it is more sweeping than is necessa ry", and-would wreak great injury on copyright owners, while at the same time destroying the balanced solution that would fairly serve the legitimate rights and needs of all concerned.
The proposed library exemption seeks to legalize the very type of uncompensated library reproduction of entire articles which Commissioner Davis held was infringement, and not fair use, in Williams & Wilkins v. United States. His opinion carefully analyzed--and rejected—the claims of the American Library Association and Association of Research Libraries that such wholesale copying was fair use. His findings and opinion were appealed by the government to the Court of Claims, and its opinion is awaited. But regardless of the outcome, the Authors League contends that such unauthorized, uncompensated one-at-atime reprinting of entire articles should not be permitted by the Copyright Act, because of its unfair and damaging impact on copyright owners, and the independent, entrepreneurial copyright system of disseminating such works. It is precisely this type of library reproduction which, the House Report emphasized, should be conducted under "workable clearance and licensing conditions"—with payment of reasonable compensation to copyright owners. (2) “Workable Clearance and Licensing Conditions"
The House Judiciary Committee prescribed "workable clearance and licensing conditions” as the second component of a balanced solution. It urged all parties concerned "to resume their efforts to reach an accommodation.” Some librarians have recognized that a clearance and licensing system, with reasonable payment to copyright owners, is the rational method permitting library reproduction of copies of entire articles and similarly sized portions of books. Copyright owners have accepted this principle, and have sought to develop such systems in cooperation with library spokesman. The latest effort occurred in March, 1973 when representatives of learned societies, university presses, authors and other journal publishers met in Washington with a large group of library spokesmen, including representatives of The American Library Association and Association of Research Libraries. For two days the group discussed various aspects of clearance and licensing systems for library reproduction of journal articles. Plans were made for a subcommittee to continue the work. But the entire effort collapsed because too many library leaders stubbornly adhered to their earlier position that libraries must have the power to engage in uncompensated reproduction of copies of journal articles—and that copyright owners must be denied compensation. They refused to continue the joint effort.