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interests will suffer materially from the omission of specific photocopying provisions in section 108 at this time.
I do not want to leave this issue of photocopying without briefly offering one additional comment on the issue of fair use. It has been reported that a draft version of this subcommittee's report on a predecessor of S. 1361 states in part that “the making of a single copy of an article in a periodical or a short excerpt from a book would normally be regarded as fair use." This has caused some persons to believe that the subcommittee intends a so-called single copy exemption to be applicable under all circumstances under the rubric of fair use.
I am convinced by the context of this statement that this subcommittee had no such intent and I urge that such an interpretation be expressly repudiated and that this language be clarified in the subcommittee's final report.
The inherent fallacy of the single-copy theory has been amply demonstrated in discussions before this subcommittee-after all, the publishers I represent here today are themselves engaged in publishing and selling one copy at a time to multiple users, as would the libraries under a photocopying exception and the retention of the draft language as a part of the legislative history of the revision bill may have unfortunate and unintended results.
I do not propose to enter into any further analysis of the provisions of section 108 of the Senate bill. I would call the subcommittee's attention, however, to a paper dated October 12, 1972, and prepared by the firm of Linden & Deutsch, copyright counsel to Harcourt Brace Jovanovich, Inc., and Macmillan, Inc. This paper is annexed as exhibit A to the statement which I have delivered to the committee.
I endorse the analysis set forth therein and request that it be accepted as part of my statement. Mr. Linden will certainly be available to the subcommittee to answer any questions concerning this exhibit.
[There followed the testimony of Ambassador Keating which appears preceding the testimony of Mrs. Bella Linden during the testimony taken relating to the general educatioinal exemption.]
Mr. KEATING. Mrs. Linden who is a far greater expert on the copyright laws than your witness, Mr. Chairman, is here to address herself to questions, either now or at the time when she testifies later this afternoon. Senator McCLELLAN. Very well. Any questions, Senator? Senator BURDICK. No. Senator McCLELLAN. Senator Fong, any questions? Senator Fong. No. Senator McCLELLAN. Thank you very much. Do you want to make any statement at this time? Mrs. LINDEN. No, Senator. I appreciate being heard this afternoon, when I am scheduled to be heard, and will make any comments at that time, if that is suitable.
Senator McCLELLAN. All right.
Mr. LINDEN. Unless you wish for me to make one brief comment on the photocopying issue per se.
Senator MCCLELLAN. All right.
Mrs. LINDEN. I was particularly interested in Senator Burdick's and Senator Fong's inquiries with respect to the feasibility of compensating authors and publishers for photocopying, and specifically with respect to the inquiries about that little boy who wants to photocopy one page.
The system—the concept of the educational market is one that suggests the product is prepared for use by students, researchers, adult students, by education, research and science generally. The system of compensation under the older technology to book publishers and magazine publishers was so well established that it caused no controversy at all. The new technology does present problems. They are not insurmountable.
I will refer this afternoon, when I am afforded the opportunity, to the Committee on Scientific and Technological Information under the aegis of the Federal Council for Science and Technology, which I have had the honor and pleasure of participating in.
It is abundantly clear that the very technology that makes photocopying necessary, desirable, feasible, and economically less costly than subscribing to chemical journals, or any journals-or perhaps, in the long run, even buying books and occupying bookshelves, space, with volumes that deteriorate, et cetera--that very technology has created and produced the answer to the problem it has caused.
It is feasible today under the present technology to monitor uses, to pay for uses. The Xerox Co. today, for one, has a system of monitoring pages reproduced by its Xerox machines. Certain of the devices that are capable of photocopying pages from books, not just loose pages, have a system whereby the machine itself monitors effectively whether a book page or loose piece of paper is photocopied.
I am certain that the National Commission, which you in your mature wisdom and knowledge of the legislative process have recommended in the proposed title II, cau call upon the mathematicians, the scientists, and the hardware manufacturers who have the ability and the capacity to monitor uses, and a new system of compensation for photocopying uses can be made practical. With all due respect, I urge that it be left to the Commission to report to you so that appropriate action can be taken at that time.
Senator Fong. Mr. Chairman, I would like to commend our former colleague and Ambassador to India for his very excellent statement before this committee.
Mr. KEATING. Thank you.
Senator BURDICK. Could you submit to us sometime today or later a budget as to what one of these machines would cost and operation thereof?
Mrs. LINDEN. Senator Burdick, it does not require a separate machine. As a matter of
Senator BURDICK. I mean the whole setup from beginning to end.
Mrs. LINDEN. I was going to suggest this afternoon—I would be glad to refer to it now. I was chairman of a subpanel of the Committee on Scientific and Technical Information of the Federal Council for Science and Technology. This issue did arise before that subpanel and our report dealt with exactly that matter. I called the committee's chairman yesterday morning and asked whether I could refer to the material prior to its public release.
The coauthors of this report had as disparate backgrounds as Commissioner Mary Gardner Jones, of the FTC, and Dr. John Weil, who is in charge of information systems development for Honeywell and General Electric in their point project. Various interested administrative agencies, DOD, NASA, AEC, were also represented.
Our report was adopted without dissent. And our report clearly indicates the feasibility of monitoring uses and recording payment. The technology is there, exists, and will not cause a prohibitive addition to the per page cost of photocopying that is presently paid by users and libraries, adverted to this morning, and paid to the Xerox companies, to Honeywell to IBM, etc.
So it is feasible. It is practical, and work has been done.
Mrs. LINDEN. To the extent that the information is currently available. I will be delighted to submit it for August 10th.
[Exhibit A referred to by Ambassador Keating follows:]
LIBRARY COPYING UNDER DOMESTIC COPYRIGHT LAW REVISION I, THE LIBRARY COPYING PROVISION AS PASSED BY THE HOUSE OF REPRESENTATIVES
On April 11, 1967 the House of Representatives passed H.R. 2512 (90th Cong., 1st Sess.), an Act for General Revision of the Copyright Law. While Section 107 of this Act codified the general doctrine of "fair use" as it has been developed by the courts, Section 108 established a specific "limitation" on the rights of copyright owners in a carefully circumscribed area of library copying: $ 108. Limitations on exclusive rights: Reproduction of works in archival
collections. Notwithstanding the provisions of Section 106 [delineating the exclusive rights of copyright owners), it is not an infringement of copyright for a nonprofit institution, having archival custody over collections of manuscripts, documents, or other unpublished works of value to scholarly research, to reproduce, without any purpose of direct or indirect commercial advantage, any such work in collections in facsimile copies or phonorecords for purposes of preservation and security, or for deposit for research use in any other such institution.
Section 108 was thus limited to (i) facsimile reproduction of unpublished works by certain nonprofit institutions, for (ii) their own limited purposes.
In approving this version of Section 108, the House Committee on the Judiciary stated that it did “not favor special fair use provisions dealing with the problems of library photocopying" other than under the circumstances abovedescribed. H.R. Rep. N. 83 (90th Cong., 1st Sess.) at 36 & 37. Similar sentiments were expressed by the Register of Copyrights. Thus, although the Copyright Office Preliminary Draft of the Revision Bill allowed libraries to make and supply single copies of periodical articles, or copies of entire published works considered to be unavailable from trade sources, upon request, the Register subsequently “became convinced that the provision would be a mistake" 1 in view of rapidly changing information technology.
The limited version of Section 108 set forth in H.R. 2512 is the only specific “library copying” provision to have received the formal approval of a Congressional Committee or either house of Congress.
II. THE LIBRARY COPYING PROVISION PRESENTLY BEFORE THE SENATE The Copyright Revision Bill presently before the Senate Subcommittee on Patents, Trademarks and Copyrights (S. 644 (92nd Cong., 1st Sess.)], includes a much more extensive “library copying” provision in its version of Section 108. In brief, the "limitations" on the exclusive rights of copyright owners are extended to include (i) duplication of published works by certain public or semi-public institutions, at (ii) the request of users of the institution's collections."
This extension of the specific "library copying exemption" was expressly disapproved by Resolution 38 of the Section of Patent, Trademark and Copyright Lau of the American Bar Association in 1970:
Resolved, that the Section of Patent, Trademark and Copyright Law disapproves in principle enactment of severe limits on the exclusive rights of copyright proprietors with respect to reproduction and distribution of copyright works by libraries and archives.
1 Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law at 26 (May 1965).
. The current Senate version of section 108 also extends the limitation of H.R. 2512 to include duplication of published works for the purpose of replacing “damaged, deteriorating. lost, or stolen” copies of works under certain circumstances.
Specifically, the Section of Patent, Trademark and Copyright Law disapproves Section 108 of the December 10, 1969 Committee Print of S. 543 (McClellan91st Congress, First Session).*
III. ANALYSIS OF SECTION 108 OF S. 644
A. Synopsis.-Section 108 of the Copyright Law Revision Bill now before the Senate Subcommittee adopts the provision of the House Act allowing library and archival copying of unpublished works for the purposes of preservation, security or deposit in other institutions. However, the Senate Bill extends the library copying exemption to allow unlicensed facsimile reproduction of published works for the purposes of replacing deteriorating, lost or stolen copies if the institution has “after reasonable effort determined that an unused replacement cannot be obtained at a normal price” from certain sources.
The Senate Bill further extends the exemption to include unlicensed reproduction of published or unpublished books and periodicals * by libraries and archives at the request of a user of the institution's collections. This "user request" exemption is subject to the conditions that (a) the user must have "established to the satisfaction" of the institution that an unused copy cannot be obtained "at a normal price” from certain sources; (b) the reproduction must become the property of the requesting user and the institution must have had "no notice that copy would be used for any purpose other than private study, scholarship or research," and (c) the institution issues certain "warning” notices.
B. Considerations. At this point our purpose is not to re-draft or rehabilitate the library copying provisions of S. 644. Our purpose is merely to isolate certain aspects of the proposed Senate version of Section 108 in order to allow examination of their impact on the business operations of interested parties. In this context, we believe the following considerations to be of principal significance :
(i) Section 108 condones free reproduction. It is not a "compulsory licensing" provision; no compensation to copyright owners—whether by státute, regulation, or otherwise—is contemplated. Similarly, the Section does not expressly require accurate reproduction, original source credit, or use of copyright notice on the reproductions."
(ii) The provision allowing reproduction of published works for purposes of replacement and the “user request" exemption require some determination that unused copies are not obtainable. However, unavailability in fact is not required : in the case of replacement the library need only conclude that such is the case "after a reasonable effort," and in the case of copies made at a user's request the library need only be "satisfied,” by the user, that such is the case. In the latter case, at least, there is no express requirement that the library's determination be in good faith, nor is there any requirement that the requesting user make any actual effort to locate a copy, or give actual evidence thereof.
Moreover, Section 108 provides no meaningful standards with respect to availability. In this respect we can only raise questions as to what circumstances may be sufficient to render a copy available or unavailable: may inability to secure a copy within "X" number of days render the copy unavailable; are there geographic limits on availability or the library's or user's efforts (is a work not available at the neighborhood bookstore unobtainable; how many bookstores should be checked; what types of sources other than bookstores are relevant sources for certain works?); does a new version of a work satisfy the availability conditions with respect to prior editions ; should a work be considered available if it is included in a compilation or collection otherwise not needed by the library or user?
Even where Section 108 does attempt to give some definition of availability, it remains unclear or troublesome in operation. Thus, availability at announced or catalog prices does not preclude unlicensed copying; the library may still determine that the price is not "normal.” * To preclude copying, the work must be available from "commonly known" trade sources ; specialized sources for works of more esoteric disciplines may not qualify. Indeed, it is not clear to whom the source is to be “commonly known"—the library, the requesting user, the
* Section 108 of the Dec. 10, 1969. Committee Print of S. 543 is identical to the version of section 108 currently set forth in S. 644.
4 This provision of S. 644 extends to all walks other than musical, pictorial, graphic, cinematographic, or audio visual works.
6 We do not believe that any of these requirements will necessarily be deemed implicit in the requirement of "facsimile" reproduction of section 108 (b) and (c). In any event, the user request" exemption of sec. 108(d) is not limited to "facsimile" reproductions.
& Sec. 108(c), (d) (1).
publisher, the "trade,” or the courts? Certain sources are clearly insufficient, namely, those outside the United States. Thus, to preclude unlicensed copying, arrangements must be made for domestic availability of foreign publications, in any language, no matter how limited their normal market.
Similarly, the provision does not appear to have considered the particular problems raised by its application to back issues. Although a number of organizations have made great investments of time and cost in locating, accumulating, and storing back issues in specialized fields and servicing their clients, their efforts and investment are adversely affected if not completely ignored: (a) we doubt that many libraries will accurately estimate the normality" of back-issue prices; and (b) one may question whether such suppliers will comprise "commonlyknown” trade sources, particularly where inter-library requests may involve libraries which have had no knowledge or dealings with such specialized sources.
Availability on library loan or for in-library use also appears insufficient to preclude unlicensed copying at the request of a user. The references to "trade sources," "price," and "unused copy," and the fact that to make a copy the library must have a copy, or have access to one under inter-library affiliation, all seem to imply that a user may request and receive a copy of a work no matter how accessible such work may otherwise be for his use under loan, and regardless of the degree of inconvenience, if any, caused by such use being restricted to a certain location or for a certain time, or his having to wait for such access. In short, a user may even request and receive an unlicensed reproduction of all or part of a work which is available to him from his local library for home or business use for extended periods of time.
“Trade sources” are defined to include "authorized reproducing services";? "reprint houses" are presumably included but are not expressly mentioned.
There are no excuses for unavailability. Thus a work may be withdrawn by a publisher for revision, while his potential market is sapped by duplication of prior editions.
(iii) Section 108 does not require initial recourse to the copyright proprietor. That the proprietor may be willing to consent to the desired reproduction, even on "reasonable" terms, is rendered irrelevant since his permission need not be first requested. (The previously-discussed "availability" conditions do require some initial degree of unsuccessful recourse to trade sources for copies. Authorproprietors would generaily not be considered "trade sources"; under various circumstances, this may also be true of publisher-proprietors. In any event, we believe that the condition of unabiliability which allows reproduction will be met where existing copies are considered unobtainable. Thus, a request for permission to create a new copy is not a condition precedent to free copying under the proposed law.)
Similarly, although Section 108 is apparently not intended to interfere with certain contractual arrangements between libraries and copyright owners,there is no incentive to libraries to enter into such arrangements on even "reasonable" terms. Furthermore, the relevant subsection refers only to obligations assumed when the library "obtained [the] copy for its collections.” Thus, agreements which may be entered into with respect to earlier-published works, such as "blanket" licenses covering a publisher's catalogue or subscribers, may be ignored by libraries if less favorable than the proposed law. Even with respect to new works, it may be questioned whether the language of the relevant sub-paragraph clearly indicates that more "difficult” contractual undertakings will prevail over contrary provisions of Section 108.
(iv) The "libraries" and "archives" entitled to invoke the exemptions of Section 108 are not restricted to nonprofit institutions. So long as the particular act of reproduction in question is without purpose of "direct or indirect commercial advantage” [$ (a) (1)], even profit-making institutions may avail themselves of the provision. We do not believe that the quoted language was intended, or will be construed, to preclude the operation of photoduplication services by for-profit institutions in order to make their overall, profit-generating, services more attractive or competitive.
Nor are such "libraries" and "archives” limited to public institutions. The only restriction on the nature of the exempt institutions is the requirement that its collections be open to at least persons, other than affiliates of the institution,
7 See, 108 (c), (d)(1).
8 Sec. 644, sec. 108(e) (3): "Nothing in this section ... in any way affects .. contractual obligations assumed by the library or archives when it obtained a copy or phonorecord of the work for its collection."
o In this respect, the Senate version of sec. 108 goes beyond the House act even with respect to archival reproduction of unpublished works.