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meaning of the newest methods of reproduction, transmission, and storage and retrieval as they were bound to affect the copyright law and the copyright owner, or to how these methods and devices could be used efficiently, if the law were to be strictly adhered to. It was equally evident that while there had been occasional consideration of the copyright problem within a variety of organizations, it had always, of necessity, been from the viewpoint and needs of the particular group:
CICP is the first group to approach the problem from a total national viewpoint.
I might quickly summarize by saying that the CICP was organized, incorporated in the District of Columbia as a nonprofit organization and that Gerald Sophar, to my left, was made secretary, and Dr. Heilprin, to my right, became chairman of a study group. The study group prepared a report and it is as fresh today as it was in 1960. Its evaluations, conclusions, and recommendations have never been seriously challenged as to substance. The report was criticized as based too much on conjecture about what had occurred, what was occuring, and what might occur should the situation continue.
I think, we may skip again and deal with the criticisms which involved our proposal to study the feasibility of a clearing house.
Regarding the criticism of conjecture, it should be stated that the study group actually did consider gathering data through questionnaires, but decided the timing was inappropriate for the following reasons:
(1) CICP was not financed.
(2) The problems were incipient ones, and the question was could we get results if we undertook it at that point. There were no data, hence it could not be proven by any facts we were able to gather.
In our judgment more could be gained at that time by trying to understand what was happening because of new technology, than by trying to determine how much. After all, the main components in the situation were well known: authors, publishers, books, readers, and copyright. Both the components and their relationship to one another had remained essentially the same for many decades, except for slight improvements in their methods of functioning and relating to one another.
The new element was and is the machinery and the hardware which can duplicate in documents in large or small quantity. This introduced a very sudden and now important question.
Again I think, in the interest of time, Mr. Chairman, I shall skip to page 11, just below the middle, starting with the second sentence in the last paragraph on that page.
The problem is that the "exclusive Right” (granted an author by the Constitution and the Congress) to his “Writings” is being threatened by modern information dissemination systems. But our society clearly accepts the idea that it is beneficial to obtain as wide a dissəmination of information as possible, by the most efficient means. Publishing, once a simple process (writing, editing, typesetting, printing, and distributing), permitted the author and publisher to police their own works and enforce their rights because they controlled the plates from which publication was produced. Today the author and the publisher have control only of the original dissemination, and because of new duplication and new dissemination methods have virtually lost control of secondary dissemination which can become large itself-even larger than the primary. Therefore the value of exercising their constitutional and statutory rights, as they see fit, has diminished.
Two clear rights exist: the right of the author and the right of the user. One might think from much of the testimony on H.R. 4347 that the user feels the publisher wants to surround himself and his product with a wall of copyright monopoly to impede all progress in science and education, and that the author and publisher feel, on the other hand, that the user is interested only in getting all information free of charge from some bottomless well
. These may only be expressions of frustration. However, both sides are as dependent upon one another as man is upon his environment, though he constantly fights it. Indeed, this was in effect the testimony of one of the other witnesses this afternoon.
The copyright law gives a right-effectively an economic or what may be called a negotiable property right to authors and publishers. The negotiable instrument in this case-a close, though not precise, analogy—is the copyrighted message itself. Because of modern technology, the negotiable instrument might be considered subject to "counterfeiting.”. As the appearance of the "counterfeit” has little to do with its uniqueness and, therefore, its value, the user is usually quite satisfied with the substitute, be it a photocopy, computer print-out, or any acceptable "tangible means of expression.
Though an alchemy of the message occurs and the source and origin of the message may no longer even be identifiable, the uniqueness of the message remains.
It is easy to see that the effect of the new technology is to remove from the control of the issuer the quantity of the original instruments that is printed and the price he chooses to charge. With the quantity in circulation increased, the total value may well be decreased. The fact that "counterfeits” are made in large quantity, or will be made, is bound to affect the return which can be obtained from the original investment.
The considerable discussions as to whether easy copying increases or decreases the sale of periodicals and textbooks evade the main issue. The point is that no one has the right to duplicate the message, beyond what Congress and the courts choose to call "fair use," now or in the future.
On the other hand, the publishers—especially, scientific, educational, and textbooks publishers provide a most essential part of the educational complex. Thus, they cannot ignore the utility of the new technology and deny the use of their published works for duplication or conversion. In recognition of this fact, CICP is examining what may be called a conversion contract. This will allow the copyrighted message to be stored, processed, and republished in other than its original form. This manipulation and alteration of a copyrighted work should not change the originality of the copyrighted message or "Writing.”
For the administration of such extended types of use contract under the copyright law, CICP has proposed since 1960 a voluntary copyright clearinghouse. The clearinghouse would act as a marketing device, or as a switching point at which user and author can meet and negotiate the value and method of payment for reproduction or conversion rights to the copyrighted message.
CICP is not the original proponent of this idea, but has been its most consistent advocate. The late Arthur Fisher, former Register of Copyrights, proposed this idea at the Conference on the Arts, Publishing, and the Law, in May 1952:
These problems are accentuated by the invention of modern devices of many kinds facilitating the reproduction and transmission of knowledge
It has been suggested that these undertakings might be expanded by the organization of a society somewhat similar to the American Society of Composers. Authors and Publishers (ASCAP) which in the filed of music licenses performance rights in the use of musical compositions. Such a society might solicit blanket authorizations to add an overriding charge to the present costs of microfilm and other reproduction of scientific articles, the charge either to be paid over to the proprietor of the works or donated to scientific development and related purposes.
For certain types of use where the commercial and monetary aspects appear least significant, a series of calculated risks could be taken without involvement in efforts to secure specific consents. Such risks might be covered by some coinsurance device shared by a group of participating institutions or organizations,
Even Arthur Fisher indicates that a previous source generated the copyright clearance idea. In any event the genesis of the copyright clearinghouse is less important than the fact that it has the virtue of age. Again I say we are not developing anything new, we are trying to develop the technology. CICP is pleased that a number of other groups are now advocating the idea.
While we do not suggest that the voluntary copyright clearinghouse is the only solution to the problem, our studies do indicate that it is probably the solution most likely to gain wide acceptance and therefore to succeed. It has been the subject of many criticisms.
Again in the interest of time, I shall skip them, but make the point that we believe if we were to publish in an early issue of the Commerce Business Daily the following Request for Proposals or Invitation for Bid:
RESEARCH AND DEVELOPMENT SOURCES SOUGHT Firms having capabilities for Studying, Designing, and Operating a switching system, which will assure the collection of fees for the copying or conversion of copyrighted material from organizations servicing the user of such material and the redistribution of the net income to the owners of the copyright, are invited to submit a Statement of Capability. Respondents to this synopsis will be evalıated on the basis of their submission of information and data relating to the following:
(a) Experience and background in economic statistics;
(6) Past or current experience in developing complex switching systems and obtaining maximum cost effectiveness from the systems;
(c) Simulation of models which project the volume, kind and rate of activity with the switching system for the next decade; and
(d) Ability to develop model contracts which will support the system. In addition, evidence is required of the availability of an effective operating organization capable of implementing the system.
It is our guess that we would get 10 to 20 responses to an advertisement of this kind. CICP does not underestimate the problem of developing a copyright clearinghouse. However, because of our national technological capabilities we feel the concept reasonable from the viewpoint of systems requirements and accounting. Any defects will be found in the legal, social, and organizational and economic aspects of the problem.
CICP supports S. 597 as an extremely well considered bill. However, since solutions to problems related to the dissemination of copyrighted scientific and educational communication appear to be partly uneontrollable, we feel that an additional device must be introduced into the process. The law states the rights of all elements involved in the process of transfer of a copyrighted message, and the rules under which the copyright owner and the user can operate.
The proposed clearinghouse would establish a practical means for copyright owner and user to comply with the rules and accommodate one another. We support the bill, in the firm belief that once it becomes law, authors, publishers, scientists, educators, and other concerned parties will turn their energies to the important matter of negotiating and developing a system, rather than arguing for the most favorable position. We urge the same points previously made by us before the House Committee on H.R. 4347—attached appendix C.
CICP is now conducting a small study to devise a sampling method for fairly estimating the amount of copying of copyrighted material done during any time period. Six cooperating libraries are recording each copy of copyrighted material made, by publisher, during a 1-month period. The effort has two purposes: to assist in the design of a sophisticated sampling formula for a larger test, and to find out if the sampling technique can be refined to a satisfactory degree of accuracy for determination of the amount of copying of any publisher's works in a particular library. At the moment funds are not available for the larger effort, but for the smaller, they are.
Another study will be done by CICP to determine: (a) the knowledge and understanding of copyright law by information clearinghouse managers and their legal counselors, and (6) their attitudes toward the copyright problem. At the same time information will be obtained on programs which have been aborted, curtailed, or suspended because of copyright.
A concurrent investigation will be made to find guideposts for evaluating the quality, quantity, and economic value of copyrighted messages, duplicated or transmitted or displayed outside of the control of the copyright owner.
Support for this study is from the U.S. Office of Education and our informal contacts tell us that the contract should be signed in time for this effort to start sometime in April.
In sum, we urge that the Congress should express its desire that a solution be developed according to the goal of CICP: that "a way be found to protect the 'exclusive right' of an author to his 'writings, while permitting the advantages of modern information dissemination systems to become as useful as they may without weakening or threatening the economic urge and the need to create."
CICP was created for this purpose and it desires to carry out such an assignment. We are certain that a system, plan, and organizational outline of a clearinghouse can be developed, if sufficient funds are made available.
Thank you, Mr. Chairman, for the patience you have had to listen to me in view of the shortness of time.
Senator BURDICK. Do either one of your associates care to summarize their testimony?
Mr. SOPHAR. My testimony is his. We are just here to assist in any questions that you wish to put to us, sir.
Senator BURDICK. You project a novel idea. The clearinghouse, I presume, this would be a private institution?
Mr. MEYERHOFF. It would be our idea that it be in private hands, Senator BURDICK. No need for Federal legislation, then.
Mr. MEYERHOFF. No, so long as it can be organized within the concept of the law, as we think it can, it would call-it would be a gentleman's agreement, you see, because obviously, not every organization would come into it, and until it was a success
Senator BURDICK. It would just be a voluntary private organization that would provide a service for the owner and user to come together.
Mr. MEYERHOFF. Yes, it would be that, essentially.
(The prepared statement of Mr. Meyerhoff, above referred to, follows:) STATEMENT OF COMMITTEE TO INVESTIGATE COPYRIGHT PROBLEMS AFFECTING
COMMUNICATION IN SCIENCE AND EDUCATION My name is Howard A. Meyerhoff and I am President of the Committee to Investigate Copyright Problems.
The goal of CICP is to find a way to protect the "exclusive Right” of an author to his "Writings," while permitting the advantages of modern information dissemination systems to become as useful as they may without threatening or weakening the economic urge and the need to create.
We are testifying today because since 1959 we have been concerned how the full benefits of modern information dissemination systems could be obtained, without harming the basic structure of incentive and rewards on which these systems and earlier systems are based.
I am a geologist by profession. I am also a researcher and an author. At an earlier time, I was editor and publisher of two publications of the American Association for the Advancement of Science. The publications were the weekly journal "Science" and the "Scientific Monthly," now absorbed into “Science. And I also have been the Executive Director of the Scientific Manpower Commission.
CICP was organized with the thought that it was better to consider a problem at a point between gestation and emergence, than to wait for it to hatch. We felt that a mechanism to control the problem and reduce its adverse impacts should be designed early and that adjustments and improvements could be made, in the light of future insight and experience. We are not so sure now that this is true. Very possibly we would be just as far along today toward a solution to the copyright and information dissemination problem if we had not had this foresight.
It was decided at our first informal meetings that CICP had to represent all interests affected by copyright law. I believe I was elected president because I had had as many different and direct kinds of experience with all aspects of the problem as one man could reasonably be expected to have.
Since then, I and my Board of Directors have made every effort to assure CICP's continued existence as a broadly representative organization focusing on a single definable problem.
I shall return later to further detail on the history of CICP, our philosophy, some of the work we have done, some insight into the nature of the problem, and why we think it can be solved within the framework of S. 597.
ČICP supports S. 597 in its present form. We think it clearly outlines the rights of the author and the rights of the user. It is precise where precision is possible and allows for negotiation between author and user where definition is not possible. For example, we have evaluated section 107, Limitations on Exclusive Rights: Fair Use. We feel that the original statement, as introduced into the House, would have been satisfactory as a basis for developing some kind of clearance system. By providing guidelines, as in the current bill, the Congress warns the user that