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The stubbornness and unreasonableness of library spokesmen should not be rewarded by giving their constituents, the libraries, the power to engage in uncompensated reproduction of articles and similarly sized portions of books. Such reproduction can be done under fair clearance and licensing systems. And those systems can be developed by the machinery designed by this Subcommittee for that purpose—The National Commission on New Technological Uses of Copy. righted Works.
Moreover, the proposed livrary exemption is a totally unnecessary abrogation of copyright owners rights, in view of the principle of "availability": (3) The Principle of “Availability":
Section 108(d) permits libraries to reproduce for their patrons, or patrons of other libraries—single copies of any work that is not "available" from desig. nated sources. As indicated below, The Authors League believes that certain revisions should be made in the section to remove ambiguities that would deprive copyright owners of essential rights. However, the principle of “availability" assures that the patrons of libraries can obtain reprints of entire journal articles and similarly sized portions of books. If the copyright owner will not provide a copy of the article, directly or through its authorized reproduction service, the library may produce a reprint, without permission or compensation.
In a series of meetings held in 1972, representatives of journal and book publisher, and authors, met with library representatives to discuss Sec. 108 and the principle of availability. Library spokesmen indicated that their principal concern was assuring that reprints of scientific, technical and scholarly articles were "available"—i.e. could be provided-to patrons who requested them. Some library spokesmen also recognized that library reproduction of copies of these articles should not be permitted where the journal publisher was making copies available directly, or through its authorized reproduction service. A proposed revision of Sec. 108(d), suggested by a library representative, was drafted. Although it would have increased the obligations of publishers under Sec. 108 to assure "availability" of reprints of articles, it was summarily rejected by The American Library Association and Association of Research Libraries. The reason is simple: their spokesmen insist that libraries must be permitted to reproduce copies of articles without compensation even though the journal publisher is making copies available, directly or through an authorized reprint service. This destruction of the copyright owner's right, and denial of needed income, cannot be justified under the principle of "availability.” Where the copyright owner provides copies of the article, as many publishers do, libraries should not be allowed to engage in uncompensated reproduction of these copies. If libraries wish to provide copies to patrons faster than the publisher does, then they should work with copyright owners to establish "workable clearance and licensing conditions."
However, library spokesmen—with some notable dissents—have arbitrarily rejected the 3-part balanced solution. They will have no part of "workable clearance and licensing conditions”, or a reasonable concept of "availability" which allows uncompensated library reproduction only when the publisher is not providing copies. They continue to demand the power to engage in uncompensated reproduction of journal articles and similarly sized portions of books, despite the serious injury this would inflict on copyright owners and the copyright system, The Library Exemption Would Injure Copyright owners and the Copyright
System (i) Unquestionably, the proposed library reproduction exemption would reduce subscribers to scientific, technical and scholarly journals by libraries, who are their principal subscribers (and by individual subscribers). Librarians have candidly admitted that this is the purpose of library reproduction of journal articles. The attrition occurs at two levels. Some libraries took multiple subscription to heavily used journals so that several patrons could use them at the same time. Now one subscription suffices, since it is used to reproduce copies of articles for each user who wants them.
(ii) On the second level, library reproduction of journal articles allows many libraries to eliminate all subscriptions to many journals. When patrons of these libraries want an article, the library forwards the order to a central library which reproduces a single copy of the article for the patron. Library spokesmen, with a penchant for confusing euphemisms (e.g., they label unlimited library copying of articles as "single copying" because the copies are produced one-for-a-customer) blithely characterize these reprint transactions as “interlibrary loans”. In truth, no loan is involved. The reprint is supplied to the patron who ordered, and he keeps it—it is his property. Admittedly, library reproduction of journal articles is designed to permit a few libraries to serve as one-at-a-time reprint services providing copies of articles to many other libraries who will not have to subscribe to these scientific, technical or scholarly journals. The government libraries involved in the Williams and Wilkins case engaged in this "wholesale" one-at-a-time reprinting of journal articles. Each year, their Xerox machines churned out thousands upon thousands of reprints of journal articles-one-at-a-time-to fill the orders of patrons of other libraries as well as their own patrons.
Under these circumstances, the proposed exemption is bound to deprive journal publishers of income from subscriptions that are not renewed, and additional subscriptions that are not placed because of library reproduction of their articles.
(iii) Moreover, the proposed exemption would deprive journal publishers of compensation for uses of their works by audiences reached by the new process of dissemination-one-at-a-time reprinting of articles. Doctors, engineers, scientists in every field and other potential readers can survey the contents of many journals through abstracts—then order reprints of the particular articles that interest them. They are not readers of “journals". They are an audience served directly by reprints of articles. This process of dissemination will continue to expand, for each journal article is a separate (and separately copyrightable) work, unrelated to the other articles in the issue. One-at-a-time reprinting permits users to acquire copies of only the particular works—i.e. separate articles—they want to read.
Similar developments of new processes for disseminating literary, musical and dramatic works have occurred frequently: e.g., motion pictures and television (to supplement the stage), the phonograph record, radio and tape recordings (to supplement sheet music). The paperback book revolution created a process of disseminating books in low priced editions, through mass distribution—to an audience many times greater than that reached by the convention method of distribution, hard-cover “trade" editions.
Until now, authors and publishers have been compensated for uses of their works by audiences reached through these new processes of dissemination. However library spokesmen now ask Congress to impose an exemption which would deprive journal publishers of payment for uses of their works by the increasing audience reached by the one-at-a-time reproduction of their articles. This means that innumerable readers who will benefit from the publisher's work in editing, printing and distributing its journals will not help defray any part of the publisher's cost of doing the work which made the articles "available" in the first place. These costs continue to rise, though subscriptions remain static, or decline. Deprived of income which they need and are entitled to receive, publishers will be obliged to discontinue many scientific, technical and scholarly journals.
(iv) The proposed library exemption would also damage authors of poetry, fiction, and books and articles on current political and social problems, biography, history and a wide range of subjects. After these works first appear in periodicals or books, they are often reprinted—with the author's permissionin anthologies, text books, periodicals and other books (such as collections of an author's poetry, short stories or articles). Many authors earn a substantial part of their income from such reprinting of their works. Indeed, some earn the major part of their compensation in this manner. 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 the poem or essay 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. Authors of books also earn a significant part of their compensation, in many instances, from permitting the reprinting of excerpts-of similar size to periodical articles-in anthologies, texthooks and other collections.
Under the proposed exemption, libraries—including college and university libraries—would have the power to reproduce single copies of poems, articles and sections of books, without compensation to the author. The process of supplying these copies-e.g. one to each student in a university class in literature or political science-can replace several copies of an anthology or book in the library, or several copies of a paperback collection or text in the college bookstore. Unless authors are compensated for uses of their works by audiences reached by the new process of one-at-a-time reprinting, they will be deprived of a substantial portion of their income.
(v) As we have noted, the proposed library exemption would permit an accumulation of uncompensated copies of a given article or similarly sized excerpt from a book. Any one library could reproduce several copies of the work, “oneat-a-time." And many libraries could do the same thing. "Isolated instances of minor infringements," as the Subcommittee's draft report noted, "when multiplied many times, become in the aggregate a major inroad on copyright that must be prevented.” Library spokesmen argue that uncompensated library reproduction poses no threat to publishers and authors. But in 1967, according to the Sophar & Heilpron report for the Office of Education, “It is estimated that in 1967 one billion copyrighted pages were copied in the U.S."
The library spokesmen can hardly guarantee that the proposed exemption will not seriously injure publishers of journals, or authors. Moreover, the proposed exemption does not, and could not, draw a line-limiting the injury a publisher or author would suffer before libraries will cease one-at-a-time reprinting of his articles or portions of his books. And in the light of copyright history, it is dangerous to assume that the process of uncompensated library copying will not inflict substantial damage. Starting with the phonograph record, every new process of dissemination was greeted initially by the same "it's not a real threat" attitude the library spokesmen have voiced on the techniques of one-at-a-time reprinting.
(vi) One of the gravest dangers of the proposed library exemption is the adverse effect it will have on independent, entrepreneurial system for creating, publishing and disseminating journals, books and other works. The "economic philosophy" underlying the copyright clause was that such a system was preferable to patronage by governments or wealthy institutions. Because the copyright owner was entitled to compensation from users of his work, he could make the expenditures necessary to create, edit, publish and disseminate it. Through the payment of royalties and other compensation, users in effect shared in defraying the costs of producing the materials they desired. But, as we have noted, proposed exemption would deprive journal publishers, and authors, of substantial part of this needed income-compensation for uses of their works by audiences reached by the one-at-a-time production of their articles or portions of their books. It is regrettable that library spokesmen refuse to recognize the serious danger their exemption poses to the independent, entrepreneurial system of publication and dissemination which is essential to them, and more importantly--to their patrons.
(vii) It should be noted that library reproduction of articles is not merely “note taking”, nor a substitute for copying by individual readers. Persons who obtain reprints of articles from a library copying service or the publisher are not taking handwritten notes. They are acquiring reprints of printed articles, 10, 20, 30 or more pages long—just as they buy or acquire other published materials. to avoid the dozens of hours it would take to copy that much by hand. Nor could library patrons reproduce the copies themselves. Many patronize libraries that do not have the journals; the copies are reproduced for them by other libraries dozens or hundred of miles away. And where the patron's own library subscribes to the journal, it will produce and deliver a reprint of the article he wants (rather than lend the journal)-so that it can keep its one issue available to reproduce copies of articles for other patrons, and avoid losing this reprint master through wear and tear, readers' negligence, or theft. The “Philosophical” Arguments
In the past, the librarians have accompanied their demand for the proposed exemption with an assortment of “philosophical" arguments: e.g., copyright is a monopoly, it is not property but a "privilege." Should it become necessary to respond to these familiar gambits, we respectfully direct the subcommittee's attention to our accompanying statement on the “Educational Exemption,” demanded by the National Education Association and other groups.
THE NATIONAL COMMISSION Although the House Judiciary Committee Report urged the parties to jointly develop "workable clearance and licensing conditions,” efforts to do so have collapsed because library spokesmen opposed this phase of a fair and balanced solution to the problem of library photocopying.
It is therefore essential that the National Commission on New Technological Uses of Copyrighted Works be established. And that the Commission proceed, as intended by Title II of S. 1361, to study and make recommendations as to "workable clearance and licensing conditions” for library reproduction of articles and similarly sized portions of books and other works. Much of the information is already available. Practical proposals have been made by various informed individuals, including librarians who favor a licensing system. There are no real obstacles to a reasonable solution-except the position of library spokesmen that authors and publishers are not enttiled to any compensation for library one-at-atime production of their articles and similarly sized portions of their books,
REVISION OF SECTION 108
Sec. 108 (d) would permit uncompensated library reproduction of copies of any work when an unused copy “cannot be obtained at a normal price from commonly known trade sources in the United States including authorized reproducing services." There are certain ambiguities in the section which could seriously damage the rights of authors and publishers. These involve such questions as what "trade sources" are included, what time intervals make the privilege operative, and what is a normal price. A careful and thorough analysis of these ambiguities has been prepared and submitted to the Subcommittee by the firm of Linden and Deutsch. Their memorandum indicates the principal difficulties posed by the section; and we respectfully urge that it be revised to overcome them. We also urge that the revision incorporate the suggestions made by the Association of American Publishers. Finally we urge the revision take account of the difference between various categories of works. Many literary works, for example, are reprinted periodically, as the demand for the work warrants it. If libraries could reproduce copies during these intervals because a copy was not available from trade sources, this could eliminate the possibility of any further reprintings-depriving authors and publishers of income. It would appear that the problems posed by Sec. 108 (c) and (d) could be solved more readily by the Commission; and that it might be preferable to enact Sec. 108, pending the Commission's recommendations, in the form enacted by the House of Representatives.
THE SUBCOMMITTEE'S INTERPRETATION OF FAIR USE
As the Subcommittee's draft report indicates, Sec. 107 of S. 1361 “is intended to restate the present judicial doctrine of fair use, not to change, narrow or enlarge it in any way." We have always supported this interpretation of the section's purpose. The draft report further states "Library copying must be judged a fair use or an infringement on the basis of all the relevant criteria and the facts of a particular situation.” This is a correct statement of the application of the fair use doctrine to library copying-paralleling the view of the House Judiciary committee, quoted above. However, the draft report then states : "While it is not possible to formulate rules of general application, the making of a single copy of an article in a periodical or excerpt from a book would normally be regarded as fair use.” We believe this sentence is not a correct application of the doctrine of fair use, and contradicts the view of the Subcommittee and the House Judiciary Committee that library copying, like other copying, must be judged for fair use purposes on the basis of all the relevant criteria and the facts of a particular situation. We have discussed the damaging consequences of library reproduction of so-called single copies, which cannot be considered a fair use under all the relevant criteria. Moreover, library reproduction of single copies is, in reality, a process which produces many copies. The crux of Commissioner Davis' opinion in the William & Wilkins case was that the copying done by the government libraries-one-at-a-time-"is wholesale copying and meets none of the criteria of fair use. ." We doubt the sentence in question was intended to condone such copying as fair use. But it may be read that way. We respectfully urge that the senence be deleted. This would be consistent with the fundamental premises adopted by this Subcommittee and The House Judiciary Committee that fair use is a judicial doctrine ("restated" in Sec. 107) and that library copying must be judged, like all other copying, by applying the criteria to the facts of a particular situation.
We thank the Subcommittee for this opportunity to state the views of The Authors League on these vital issues.
JEROME WEIDMAN. Senator McCLELLAN. Now this brings us to the conclusion of the witnesses that were scheduled for this morning's session. We are only a few minutes overtime. We compensated for our lateness in starting by coming back at 1:30 o'clock. It is now almost 2.
I hope now we can move expeditiously so that we can conclude by 4 o'clock because I do have to leave at that time.
All right. Call the next witness.
Mr. BRENNAN. Mr. Chairman, the issue for the afternoon session is the proposed ad hoc committee amendment for a general educational exemption. Forty minutes have been allocated to the proponents of the amendment, the ad hoc committee.
Would you all please come forward! ?
Senator McCLELLAN. Forty minutes is also allotted to the opposition.
Mr. BRENNAN. Mr. Chairman, I request that the text of the proposed amendment appear at this point in the record.
Senator McCLELLAN. This is the amendment to be proposed by the witnesses now appearing?
Mr. BRENNAN. That is correct. Senator McCLELLAN. All right, this amendment will appear immediately after you gentlemen are identified in the record. Then the amendment you sponsored may be printed in the record.
Mr. BRENNAN. Dr. Wigren, would you introduce yourself for the record ?
STATEMENT OF THE AD HOC COMMITTEE OF EDUCATIONAL INSTI
TUTIONS AND ORGANIZATIONS ON COPYRIGHT LAW REVISIONS, HAROLD E. WIGREN, CHAIRMAN; ACCOMPANIED BY ALFRED CARR, LEGISLATIVE CONSULTANT, NATIONAL EDUCATION ASSOCIATION; ROBERT F. HOGAN, EXECUTIVE SECRETARY, NATIONAL COUNCIL OF TEACHERS OF ENGLISH; RICHARD J. SCHOECK, DIRECTOR OF RESEARCH ACTIVITIES, FOLGER SHAKESPEARE LIBRARY OF THE DISTRICT OF COLUMBIA, ON BEHALF OF MODERN LANGUAGE ASSOCIATION; FRANK NORWOOD, EXECUTIVE SECRETARY, JOINT COUNCIL ON EDUCATION TELECOMMU. NICATIONS; JOHN C. STEDMAN, PROFESSOR OF LAW, UNIVERSITY OF WISCONSIN; AUGUST W. STEINHILBER, DIRECTOR OF FEDERAL AND CONGRESSIONAL RELATIONS, NATIONAL SCHOOL BOARDS ASSOCIATION; AND HARRY N. ROSENFIELD, COUNSEL TO THE AD HOC COMMITTEE
Mr. WIGREN. Mr. Chairman and members of the subcommittee, we have everyone here, I think, except one of our witnesses, and he has been detained in another hearing, but he will be in shortly. I am going to ask, in the interest of time, that each of our panel members will introduce himself as we go through, if you don't mind? I think it might be easier.
Senator MCCLELLAN. All right. Just introduce yourselves, and place this proposed amendment in the record.
Mr. WIGREN. All right.
I am Harold E. Wigren, chairman of the ad hoc committee of 41 educational organizations.
Senator MCCLELLAN. Fine. The amendment to be proposed will be placed in the record.
[The amendment follows:]