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of a book, of a periodical article or a portion of an article, and this is supplied in a single copy for the individual's personal use. This is done both for a person who is physically present or for one who applies through interlibrary loan.
Senator MCCLELLAN. Any charge made for it?
Senator McCLELLAN. We now have the Library of Congress furnish iis copies. We can get copies of documents and articles and materials. I do not think we pay any copyright fee. I do not know how it operates.
Can anyone abuse this right under present practices by getting material and profiting from it, commercializing it in any way without paying the copyright fees?
Dr. McCarthy. Not to my knowleulge, sir.
Senator McCLELLAN. Is it the allegation that they get no copyright fee on the one copy that you give to a single customer, single patron.
Is that it?
Dr. MCCARTHY. That is what was alleged in the Williams and Wilkins case, that Williams and Wilkins would have had a certain income if they had been paid each time the National Library of Medicine had copied an article from one of their journals.
Senator McCLELLAX. Well, would you indicate from your experience, observations, how much additional income if you had to pay a copyright fee on each copy that you make for individual patrons, how much it would amount to in an average library?
Could you give us any thought on this?
Dr. MCCARTiy. Over 50 percent of the material copied is not under copyright at all, and the rest is spread over such a large number of publications and publishers that to reimburse publishers for making the copies would require a very elaborate bookkeeping system. It would actually-a publisher is responsible for the statement-cost dimes to collect pennies.
Senator McCLELLAN. A publisher has made that statement ? Dr. McCarthy. That is right, Mr. Curtis Benjamin formerly of McGraw-Hill.
Senator MCCLELLAN. Senator Burdick. Senator BURDICK. Yes. Your objection is to subsection (1) of 108 (d). Let's give you an example. Suppose I go to the public library at Williston, N. Dak., and I want to get page 50 out of a book on zoology dealing with snakes, and I go to the library and I say I want a copy of page 50 on snakes, and the librarian says to me, I think that is available in the publishing house in New York or at the Library of Congress.
Is you read that subsection, if that was available as it says here, to be obtained at normal price, an unused copy cannot be obtained-well, it can be obtained at the Library of Congress or can be obtained in New York-would you construe this section to mean that the library at Williston could not copy that page 50.
Dr. MCCARTHY. Yes, sir; that is right.
Dr. McCARTHY. I would now like Mr. Brown to present his testimony.
Senator McCLELLAN. Mr. Brown.
Mr. Brown. Mr. Chairman, I would like to speak very briefly on certain legal points that have arisen recently.
First, my name is Philip B. Brown. I am a partner in the Washington law firm, Cox, Langford & Brown, and counsel to the Association of Research Libraries.
The major legal development on this subject in recent years, apart from the continuing activity of this bill in Congress, is the court case, Williams & Wilkins against the United States, pending in the Court of Claims.
The report of the Commissioner constituting the first decision of the case was filed in February of 1972. The case has been argued and briefed to the judges of the court, and is a waiting decision by the judges of the court at this time. The Commissioner held that photocopying of entire articles from medical journals by the National Institutes of Medicine at the request of doctors and medical researchers constituted infringement of copyright and he recommended that the court conclude, as a matter of law, that plaintiff is entitled to recover reasonable and entire compensation for infringement of copyright, the exact amount to be determined in later proceedings.
Subject to the outcome of the case now pending before the judges of the court, the main effect of the Commissioner's report on library photocopying is twofold: First, that such photocopying as was involved in the case constitutes a violation of the copyright proprietor's rights under 17 U.S.C., section 1, and, second, that such copying is not protected by the doctrine of fair use. If the Commissioner's report should be adopted by the court, the decision would constitute the first judicial interpretation of the 1909 act as it applies to library photocopying and an interpretation contrary to both the libraries' understanding of the meaning of the 1909 act and to the previously unchallenged longstanding photocopying practices of libraries.
These developments in our opinion underscore the importance of the libraries' request that Congress adopt a specific amendment to section 108(d) of the bill authorizing a library to make a single photocopy of an entire journal article at the request of a user without such a practice constituting an infringement of copyright.
Prior to Williams & Wilkins it could be argued that if libraries interpreted the 1909 act to authorize such copying and could point for support to the fact that the publisher had not challenged that interpretation and had even participated in a gentlemen's agreement for a period of years which ratified the libraries' practice, there was no need to give the libraries explicit statutory protection since the revision bill did not take away from libraries any rights which they then enjoyed under the 1909 act. Today, we submit that it is not possible to assert that position, and that the libraries' need for new explicit statutory protection for such photocopying is clear.
The amendment proposed by ALA and ARL, the two library organizations, is essential to permit a library to make a cour of an entire journal article for a user. Such an amendment would be fully consistent with the literal wording of all copyright statutes prior to 1909, and fully consistent with the interpretation placed on the 1909 act by users and publishers alike for about 60 years.
In addition to adopting the specific photocopying amendment, we respectfully submit that Congress should also clarify and endorse the application of the doctrine of fair use to library photocopying practices. This is important both because the doctrine had not previously been judicially applied to library photocopying and because the report of the Commissioner in Williams & Wilkins, if allowed to stand, would raise serious doubt whether that doctrine could ever apply to library photocopying of an entire article, at least by most of the major libraries.
The Commissioner determined that the copying involved constituted wholesale copying, apparently simply because of the large number of individual requesters for each of whom the library made a copy, and the Commissioner also referred to the facts that on some occasions, the same requester could receive a second copy at a later date, and that the library furnished a copy of the same article to each of a number of different requesters.
Now, if these facts constitute wholesale copying, sufficient to a court to deny a library the defense of fair use, it would appear that the defense would not be available to any large library, such as any of the major research libraries of this country, simply because the total number of patrons of each of these libraries would be so numerous as to fall within the Commissioner's term "wholesale," and thus go beyond fair use.
In order to restore the application of fair use consistent with the intent of the bills previously considered by this committee in recent years, we believe it is essential that Congress reject the interpretation given to fair use by the Commissioner in the Williams & Wilkins case and that Congress further declare that the longstanding practice of libraries of making a single copy of copyrighted material, including an entire journal article, is within the meaning of fair use.
Accordingly, we are requesting two things. First is the specific amendment that Dr. McCarthy referred to in the record, the amendment to section 108(d), and this amendment is proposed by the Association of Research Libraries, and by the American Library Association. The second is some clarification that fair use applies to the normal library practice of making a single photocopy of copyrighted material for a user.
Now, those practices would include making a copy of an entire article or just general photocopying practices of libraries as they have been traditionally employed for users' requests. We submit these are essential to permit libraries to continue to serve the needs of scholars, and as Dr. McCarthy has pointed out, we submit that there is no evidence of damage to publishers resulting from this practice. We believe it is necessary, particularly in view of the present posture of the law on this subject, the posture of the report of the Commissioner in the Court of Claims case, and the fact that the court has not yet decided the case, that if Congress enacts a new law on a subject that the law should be clear and certain so as to avoid ambiguity, and we think that the need for clarity and certainty is underscored by the penalties that are provided in the bill which are sufficiently serious so without clear protection a librarian might very well refuse to make a copy of a journal for a user.
We think that the failure to be free to do that would run the risk of failing to give services to the patrons of libraries, to the great detriment of research and scholarship.
Senator McCLELLAN. Mr. Brown, I note on page 3 you point out that for many years the practice was such, somewhat of a gentlemen's agreement, and you proceeded as you do now and you felt there was no need for protection.
Is that because no claim at that time was being asserted by the copyright holders?
Mr. Brown. That is right, Mr. Chairman. There was no lawsuit brought until the Williams & Wilkins suit in very recent years, the one that is still pending and while there was considerable discussion, this had not been the problem.
I might point out that in that connection
Senator McCLELLAN. When did this if there was a change in the attitude with respect to this practice of the copyright holders—when did that occur, and how did it develop ?
Mr. Brown. Well, I suppose the position of the copyright proprietors as they have testified before this committee on previous bills speaks for itself, but this Court of Claims case is the first legal opposition of which I am aware, and that case has been pending for the past 3 or 4 years. It still is pending.
Senator McCLELLAN. Has any effort been made otherwise to assert a claim against libraries prior to this suit?
Mr. Brown. Not that I know of, but perhaps my colleagues can expound.
Dr. MCCARTHY. I do not believe so, Senator McClellan, no legal action. There may have been some discussion but no legal action has been taken.
Senator BURDICK. Well, this presents some intriguing possibilities, getting back to this Library of Congress thing that is being used.
Well, certainly under this section (d) (1), that would also apply to the Library of Congress, would it not? If the book is found in the Library of Congress and someone asks for a copy of it here on the Hill, would that not be the same condition as the library in Williston, X. Dak.?
Mr. Brown. Yes, sir.
Senator BURDICK. In other words, the material I am getting then from the Library of Congress from time to time would be illegally given to me under this act?
Mr. Brown. Unless they meet the requirements of this provision.
Senator BURDICK. Well, suppose they say you can get that in New York at the publishing houses. I could not get it then, could I ?
Mr. BROWN. I do not believe so.
Senator BURDICK. We are constantly getting material from the Library of Congress, and I am sure a lot of it is covered by copyright. This section forecloses that.
Mr. BROWN. Yes.
Mr. BROWN. I do not know of any instance in which the library has any desire or wish to copy a total book. The dispute has centered around whether the library has the right to make a photocopy of a total single article in an issue of a journal such as the medical journals that are involved in this lawsuit, and there, if the library has the right to make a copy of a single article, an entire article, for a user, that meets the normal request. I do not believe there ever is a request for a library to copy an entire issue of a medical journal, because it would normally contain several different articles on several different subjects.
Senator BURDICK. Well, you are dealing now with what happens, what is practical. I am getting to what is possible. We have to think of that, too.
Under your language, and under your contention, could an entire book be copied? Could it be?
Dr. MCCARTHY. No—the second clause of our amendment, Senator Burdick, following page 4 of my statement, reads, the library or archives shall be entitled to supply a copy or phonorecord of an entire work, or of more than a relatively small part of it, if the library or archives has first determined, on the basis of a reasonable investigation that a copy or phonorecord of the copyrighted work cannot readily be obtained from trade sources.
Senator BURDICK. Well, that is what you are saying now, in the present act, in the proposal.
Dr. MCCARTHY. It is the distinction between a complete book, sir, and a periodical article.
Senator BURDICK. No. You said I will read it with you. "The Library or Archives shall be entitled to supply a copy or phonorecord of an entire work, or of more than a relatively small part of it, if the Library or Archives has first determined, on the basis of a reasonable investigation that a copy or phonorecord cannot be obtained elsewhere" and so forth. That is what the proposal said.
In effect, we will not make a copy if you can obtain it elsewhere.
Dr. McCarthy. Item one, sir, sub one in our amendment is in a sense the critical part of it.
Senator BURDICK. Well, you get into a phasey area there of more than a relatively small part of it, et cetera, et cetera.
Dr. MCCARTHY. Yes, sir. Economics operates there. The cost of copying an entire book is more expensive than to purchase it, and the form in which it comes out is less satisfactory to use. Libraries, as they are operating now, do not make copies of complete books.
Senator BUT:DICK. But the thrust of the proposed amendment, the proposal that we have before us today, you would have no quarrel with that if applied to the total work.
Mr. Brown. Senator, may I respond to that?
Taking the two paragraphs separately, (d)(1) is talking about a complete article from a journal, and that right is the new, important point that is being requested by this amendment, so that it will be clear that a library can make a single copy of one article in a journal for a user without violating the copyright.
Now, the second paragraph says that if they cannot get the work from trade sources, then they can make a copy of the whole thing, or a small part of it, and there, more than a relatively small part of it, rather, and there the thought is that perhaps fair use would cover a relatively small part of it, and there may not be any need for that being specifically covered, but the whole thing, or more than a relatively small part of it would not necessarily come under the fair use, and therefore should be
Senator BURDICK. Well, that is what I am saying. (1) of (d) would apply then where you had a substantial part of the book or a total book. You are in agreement on that.