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impetus such as that provided with respect to classroom photocopying, Mr. Chairman, to have this committee spell out what fair use meant. And all your reports in the middle 1960's said was that the parties should get together and agree what fair use is. There was also encouragement with respect to the setting up of a clearinghouse.

In any case, this uneasy peace was not destined to last for obvious reasons. And as photocopying devices became a great deal more common and the use of photocopying machines became much more pervasive in libraries, including small libraries, there was the impetus, spearheaded primarily by the American Library Association-and that is where I should say, in fairness, the broadest representation of public libraries lies-an impetus to put in an exemption that would be similar to the educational classroom exemption. In other words, they wanted something that would protect individual librarians and insulate them from liability.

The impetus of the library photocopying exemption, what you have now in section 108, was protection against unwarranted liability of individual librarians. It was not an endorsement of interlibrary loan arrangements, or library networking at that time. This was lurking there in the background, but the purpose of this initiative was really to give librarians more assurances than they could have under the fair use doctrine that what they were doing on a day-to-day, more or less spontaneous and unsupervised basis, was legal under the revised law.

As a result, the library community put forward an amendment to the revision bill which was the subject of considerable private discussion and was referred to in the semipublic discussions that were held with respect to the National Commission on New Technological Uses of Copyrighted Works. In fact, as part of that whole discussion, Mr. Chairman, the question of library photocopying was introduced into the mandate of the Commission. And it was obviously hoped that that would solve the problem-that is, by putting it into the Commission, then Congress, at that stage, would not have to solve the problem in a detailed way. I am, perhaps, oversimplifying and mixing the chronology of this a bit, but these things were going on simultaneously.

To make a long story short, however, late in 1969, the Senate Judiciary Subcommittee reported the bill to the full committee with a library photocopying exemption which did not go as far as the libraries wanted, but was a step in that direction and they did accept some of the language.

The authors and publishers did not accept that amendment immediately. I think that what we see here, if you look at it and attempt to try to view it from a historical perspective, is this exploding technology and an effort on the part of the representatives of the people affected by it to try to maintain consistent positions in the face of the uncertainty of a revision bill. In fact, the Williams & Wilkins case had, by that time, been filed and the problem had been entered into the judicial arena.

This history was very difficult to try to summarize. But, in any case, Mr. Chairman. I will jump to August of 1973, when the Senate held hearings on this issue. At that point, the Court of Claims Commissioner had ruled-I am reading from page 13 of chapter 3-the

Court of Claims Commissioner had ruled in favor of Williams & Wilkins and the full court's reversal of that ruling had not yet occurred. The librarians proposed an amendment that was narrower than their original proposal: In effect, it would permit making one copy of a single article or contribution, or of a short excerpt without further investigation. A library could supply a single copy of an entire work after determining that it was out of print.

The previous bill, the bill on which they were testifying, had drawn no distinction at all between excerpts and single articles on the one hand and entire works on the other. And, in effect, it required that they not be available from trade sources, at all, if photocopying was to be legal.

For their part, the authors and publishers, in general, appeared willing to accept the approach of section 108 as it then stood, which would have applied only to out-of-print and to unavailable material. They did this reluctantly and with some drafting changes. They concentrated their fire upon the librarians' new proposal.

Next, another zig-zag occurred. In fact, two, in fast succession. In November of 1973, the Court of Claims reversed the Commissioner and held in favor of the Government libraries in the Williams & Wilkins case. And then in April of 1974, the Senate subcommittee reported the revision bill to the full Judiciary Committee, with some striking amendments. And it is what they did, in the context of the victory of the libraries in the Williams & Wilkins case in November of 1973 that is to say, it is what the Senate Judiciary Committee did in 1974-that is really the grounds on which you heard the dispute in May.

In effect, the 1974 bill-and I am reading from page 14-accepted the librarians' 1973 proposal, but added an entirely new provision stating that "the rights of reproduction and distribution under this section do not extend to cases where the library or archives or its employee: (2) engages in the systematic reproduction or distribution. of single or multiple copies." The library community greeted this new subsection (g) (2) and the explanatory commentary accompanying it with howls of outrage, arguing that its substantive contents had never been discussed at hearings or elsewhere, and that it took away everything that the other 1974 amendment had given.

I am not sure I made this sufficiently clear, because of my skipping around, Mr. Chairman. What I mean to say is that the early 1974 amendment had drawn a distinction between excerpts and articles on the one hand, and entire works on the other. And with respect to excerpts and articles-and I mean here a real single copy, not multicopying one at a time, but a real single copy-a real single copy was permissible without much restriction. The line was drawn between full text, which still had to be out of print or not available from trade sources, in order to be photocopied. So that what they were really arguing about, which was journal articles, was, in fact, freed from restrictions on a single copy and not multicopying on a oneat-a-time basis. And the counterpart of that change was this restriction with respect to systematic reproduction, which the authors and publishers generally accepted.

They argue that, as a technical matter-I am still reading from page 14-a prohibition against systematic copying was implicit in the

rest of the section; however, the amendment allowing nearly unrestricted single copying of journal articles and similar works made an explicit prohibition against doing this on a systematic basis essential.

That was their argument and the Senate approach in 1974 accepted this. But, obviously, all of this has to be judged in the context of the Williams & Wilkins case, which was going on at that point.

The revision bill was reported by the full Senate Judiciary Committee on July 3, 1974, and was passed by the Senate on September 9, 1974, with two changes in section 108 dealing with videotape news archives, and I will come to that later on. There was no debate on the fundamental issues underlying the section.

As I was mentioning earlier, there was no debate again on Tuesday in the Senate Judiciary Committee. As I mentioned, this issue has been passed over in the Senate probably for strategic reasons.

Meanwhile, a great many of the groups and organizations involved in the dispute were filing briefs, as amicus curiae in the Williams & Wilkins case in the Supreme Court, and positions on the legislation. were becoming increasingly inflexible and tenacious. During this difficut period, a dialog of sorts was reestablished, but no consensus concerning what the law ought to be and what the meaning of systematic reproduction could be achieved under those circumstances.

As we all know, the Williams & Wilkins case was argued before the Supreme Court in December 1974. In January, the two Houses. including you, Mr. Kastenmeier, introduced the revision bill with exactly the language that the Senate had adopted in 1974. And one assumed that the 1974 Senate report, which was also considered objectionable by the library community, was still applicable.

Then, in February of this year, in a spectacular anticlimax, the Supreme Court split 4 to 4 on the Williams & Wilkins case, automatically affirming the Court of Claims' decision in favor of the Government libraries, but effectively depriving that decision of any precedential weight, and wiping out any authority the Court of Claims majority opinion might otherwise have carried.

I think this was debated a little bit before you, and I am not sure it makes all that much difference, but I do feel that the judicial authority with respect to 4 to 4 affirmance makes pretty clear that this really wipes the slate clean and we are back to the beginning, as far as judicial precedent is concerned on this issue.

We also must refer to the new National Commission on New Technological Uses, which incidentally, had its first meeting yesterday, and which does have, within its mandate, the question of photocopying, including library photocopying.

And in the 1974 Senate report, there was a passage indicating that the new Commission should give priority to this issue. Now, whether or not this is still true, in light of later developments, remains to be

seen.

My chapter 3 contains a rather extensive analysis of this section, which I included here for purpose of reference. I won't try to summarize it. But, I will come to the analysis of specific issues, which starts on page 25. As I indicated at the beginning, I do feel a very important and perhaps slightly overlooked factor here is the interrelationship between fair use and library exemption.

The strange, eventful history of library photocopying as a copyright issue has left a major question unanswered, and it can be stated three ways: (1) Are the exemptions in section 108 essentially a definitive statement of what Congress intends fair use to mean in this area of library photocopying? (2) Or, are they supplementary provisions augmenting but not restricting the present doctrine? (3) Or, could it be argued that, because section 108 says definitively that certain things can be done and others cannot, the section prohibits certain activities that might be held fair use today?

Now, the section has a provision that supposedly interrelates to section 108 (f) (2), that says that nothing in the section "in any way affects the right of fair use as provided by section 107," but this has already been, and certainly can be, interpreted in different ways.

And I will give you one hypothetical question. Suppose, for example, that the bill were enacted in its present form and Williams & Wilkins reinstituted suit under the new law. The Court of Claims has held that what the National Library of Medicine was doing constituted fair use under the 1909 law. Would section 108 change that result? And the Senate report, the 1974 Senate report, simply doesn't give you a clue as to the answer.

I am going to skip over some of the material in the analysis here. I think I should mention that the problems have to be faced with respect to the videotape archives question, and the scope of the works covered by the exemption; namely, does music get included in or included out?

But, let me stay with the main problem here, which is the opposition of the librarians to prohibitions, and specifically the systematic reproduction prohibitions.

Now, also, as you undoubtedly recognized from the startled expressions of the authors and publishers when the librarians made this point, they are also opposing the subsection dealing with one-at-a-time multiple copying, which has been in the section from its origins and hadn't been opposed before. But, it is consistent with their position, I think. Clause 1 of subparagraph (g) had been included in the librarians' original proposal to the Senate, and had apparently been accepted by everyone since its introduction into the bill in December 1969. The 1974 Senate report contains an interpretation that I think is viable, and it clearly makes the exemption inapplicable to the situation where, even if it is not systematic, what is going on is really multiple copying. The authors and publishers have constantly made the point that if you limit this to single copying, it is meaningless unless you make clear that this doesn't include making multiple copies one at a time, because that is how books are printed and photocopies are made, obviously.

In any case the crux of the issue is subsection (g) (2), which is the systematic reproduction subsection. I will now read from page 33, which states as follows about systematic reproduction:

By far the most controversial provision of section 108 is clause (2) of subparagraph (g), and particularly its use of the undefined but inflammatory word "systematic."

This has been presented in the library community as completely taking away the exemptions (d) and (e) with respect to excerpts and

articles and full text. If it is read in its broadest scope, "systematic" might be judged that way. I think that, quite clearly, from the legis lative history and from the Senate report. Mr. Chairman, that was not the intention, but the librarians are also objecting to some of the breadth of the language of the Senate report. And I do include, on pages 33 and 31, the entire text of that report, because I think you should have before you, in deciding this issue, what the Senate was saying it meant by this phrase.

Now, the opposition to this is outlined in my statement. I also think I should refer to a letter that was sent to both Chairman Rodino and Chairman Eastland from David Matthews, the new Secretary of HEW, who was obviously representing the National Library of Medicine as much as anything else in his comments. And he supported the outright deletion of (g) (2).

But, in addition, he suggested an alternative which would amend the section to refer not only to "systematic" but also to "unlimited" reproduction, and make clear that the limitation only applies if the reproduction substantially impairs the market value of the copyrighted work. And that language, incidentally, comes from the fair use section directly.

Secretary Matthews also recommends avoiding any ambiguity in the bill by having the bill include specific definitions of systematic reproduction and fair use. And section 107. Mr. Chairman, is really a definition of fair use, if Congress wants to go so far.

Next, there is also the unanswered question that the Commissioners of the new national commission now known as CONTU wrestled with yesterday, which is what it is supposed to do with respect to library photocopying now that things are in their present state in the Congress. Mr. DRINAN. Mr. Chairman?

Mr. KASTENMEIER. The gentleman from Massachusetts.

Mr. DRINAN. Would the people who put out learned publications go along with Secretary Matthews' compromise version here? Is there any reason why the publishers of learned journals of medicine or astronomy would say no?

Ms. RINGER. Yes, I think they could possibly say no, although I don't know. I judge this as an effort not to simply knock out the limitation but an effort to compromise it. I don't think they would accept the breadth of the language without sufficient explanation in the report, but I can't really speak for them. I think that the word unlimited is equally objectionable from their point of view to the word systematic from the librarians' point of view.

Mr. DRINAN. I thought HEW might have consulted with them informally in an advisory capacity.

Ms. RINGER. My impression is that they have not. This language has been floating around for a while, but I have never heard it discussed in the author and publisher community, and I don't know whether they were aware of it before Secretary Matthews' letter.

Mr. DRINAN. Thank you.

Ms. RINGER. I come to the comments and recommendations on page 39. I first talk about the interrelationship between sections 107 and 108. The librarians finally decided to seek express photocopying exemptions because the flexible and untested doctrine of fair use does not provide enough assurance that some of the things they now want to

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