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APRIL 8, 1971. To: Working Group Conference on Resolution of Copyright Issues. From : Committee to Evaluate Criteria and Copy Transaction Mechanism.
The Committee (Joan Titley Adams, Andrea Albrecht, James Barsky, Paul Fasana, Efren Gonzalez, Erich Meyerhoff, Gordon Randall, David Waite and Paul G. Zurkowski) met on Monday, April 7, 1975 at Academic Press, 111 5th Ave., New York City (2:00 p.m. to 5:00 p.m.).
The language of two documents, Agen Doc 3-WG-3/4/75, "Mechanisms and Criteria for Royalty Payments and/or Clearance and Licensing Procedures." and AgenDoc 5-WG 3/19/75, "Elements in Photocopy Transactions," was closely evaluated. As a final step the committee measured the details of the Flowcharts against the Criteria. The detailed comments on Agen Docs 3 & 5 are included in the Appendices to this report.
COMMITTEE REPORT The Committee applied a critical test to both the Criteria and the Mechanisın. The major points developed include:
Point 1.---Any mechanism must provide a method for the user to determine whether the contemplated copying falls within the inclusive dates of a stated fre period.
Point 2.—A system based exclusively on duplicate copies of the first page of the copied journal article in “hard copy" does not provide a royalty payment mechanism for copying accomplished in microfilm, telefax, video, etc.
Point 3.-It is recognized that there are costs to the library intrinsic to a royalty payment mechanism. If these costs can be clearly defined, it must be determined how the costs shall be borne.
Point 4.--The mechanism was evaluated for interlibrary copy transactions. No evaluation was made of either the criteria or the mechanism for other than interlibrary copy transactions.
The Committee concluded that the mechanism and the criteria offer a basis for further discussions.
PAUL G. ZURKOWSKI,
Chairman. APPENDIX A Comments by Committee on Evaluation of Criteria in Agen Doc 3.
Criterion 1. No objection to machine readable input so long as eye-readable indicia are used to enable parties to know the facts of a transaction.
Criterion 2. O.K., no committee comments.
Criterion 3. Procedure of mechanism must be readily understood by all in. cluding the lowest level clerical personnel. Mechanism for dealing the making of copy of part of an article still is unresolved.
Suggested language change : Change "any one article" to read "each article." Criterion 4. (a) O.K., no committee comments.
(b) Publisher should not print notice requiring royalty where it is not so entitled. (i.e. if an article is in public domain.)
(c) Definition of inclusive period needs further work (see Committee Point 1). It was noted that copyright constitutes a bundle of rights and that establishing a specified fee period for single copy copying does not mean publisher gist up other rights in copyright.
(d) The price per page question was discussed in the context of copying lese than the whole article. The Committee felt simplicity in the system required pay. ment of the "per article" fee over the complexities that would be introduced to cover partial article copying.
(e) 0.K., no committee comments.
(f) Was considered to be too general and that words such as “costly or nonplex" were indefinite and would stand in the way of attaining agreement. Committee recommended its Point 3 be incorporated in lieu of 4f.
(g) 0.K., no committee comments.
Criterion 5. O.K. The clear implication of this criterion is that any materials which do not contain the prescribed indicia would, after the legislated beginning date, be exempt from payment of single copy copying royalties.
I. The title of the Flow Charts at p. 2 & 4 and elsewhere should read: "Elements in Photocopy Transactions,"
II. At p. 3, data elements 7 and 10 can best be accomplished by LB by one of the following means :
A. A date stamp applied to each duplicate copy of the first page. The stamp should incorporate LB's identification. In this way each docuinent contains all the necessary data elements.
B, An overlay of the ILL or copy request form which would provide data elements 7 and 10 as well as others. This was the publishers' preferred method, but it would be expected that data element l would, in many cases, be obliterated so as to protect the privacy of the user. This method would assure that each documents contains reference to duta elements 7 & 10.
C. As earlier considered by the Working Group, a cover sheet for each copying period might be included with the first pages being sent to the clearinghouse, The committee felt this would frustrate accurate accounting at the clearinghouse since the first pages, if once separated from the cover sheet, could not be assigued accurately to the appropriate source library.
III. An additional data element 12 providing the “inclusive date" for fee pay. ment (see committee Point 1). This, like data elements 4, 8 and 11, would be preprinted on the first page of each article by the publisher. Thus, the mechanism is understood to call for the publisher to preprint data elements 4, 8, 11 and 12 on the first page of each article to signify its participation in the mechanism.
IV. If more than one article appears or begins on a single page, LB would indıcate (as part of data element 10) which of the multiple printed prices pertains.
V. On page 3, after data element 9 underline LB and after data element 10 underline LA. For newly added data element 12 (inclusive fee date) under LI, LB, SC', CII aud list but do not underline PR.
AMERICAN LIBRARY ASSOCIATION,
Chicago, Ill., April 10, 1975.
The preceding discussions focused upon the development of a mechanism which could conceivably be applied to account for photocopying activities in lieu of interlibrary loan offer us an excellent opportunity to make significant progress toward a possible resolution of the copyright issues.
In order to build upon the work of those who developed the details of the mechanism, I would like to propose that, in addition to reporting to our parent group the progress we have made, we also announce that we are commencing a three month test program to come up with some hard statistics with which to evaluate the administrative feasibility of the mechanism. These data will also give us the opportunity to evaluate the mechanism in terms of what is actually being done in libraries.
The test data will be gathered from several representative communities of libraries located in Standard Metropolitan Statistical Areas in different parts of the country. All libraries in the area will be included with the exception of school libraries. This exception is consistent with the ALA Interlibrary Loan Code.
All 263 SUSA's will be analyzed with respect to library holdings. We prpect that the distribution according to size will create four groups from which we will choose one area from each group for the test. An alternative approach would be to analyze the SMSA's according to population. However, a prelimi. nary analysis shows that there is little relationship between library holdings and population because of the anomalies caused by large univerxities being
located in small towns, etc. A basic assumption is that the larger the holdings of an SMSA, the larger will be the number of journal interlibrary loans.
1. The specific libraries included in the test will be instructed in the data gathering procedures.
2. The libraries will provide information on all interlibrary loan requests for journal articles which they fill for other libraries.
3. These data will be analyzed with respect to the frequency and rankings by specific journal and specific publisher within each SMSĀ.
4. The geographic patterns of borrowing and lending among the libraries will be analyzed.
I strongly urge that these test data be gathered at the earliest opportunity. Toward this end we should recommend that the National Commission on Libraries and Information Science assume the responsibility for sponsoring this program.
Recommendation by Working Group: That the Conference recommend to NCLIS that NCLIS assume the responsibility for financing and co-sponsoring with the Conference a study such as suggested in Agen Doc 9 with an understanding that such a study would include some testing of a payment mechanism.
HOUSE OF REPRESENTATIVES,
Washington, D.C., September 8, 1975. Hon. ROBERT W. KASTENMEIER, Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of
Justice, Rayburn House Office Building, Washington, D.O. DEAR BOB: It has recently been brought to my attention by Fritz Henle, Photographer, that your Subcommittee on Courts, Civil Liberties and the Administration of Justice is currently considering H.R. 2223, a general revision of the Copyright Law.
In the enclosed correspondence from Mr. Henle, he indicates that certain revi. sions, specifically the institutional reproduction section, would be detrimental to his rights as a creator of fine photographs.
I would appreciate your consideration of this particular section when the mark-up session begins. Apparently, there is a language problem which is creating quite a controversy. With kind personal regards, I am Sincerely,
RON DE LUGO,
Member of Congress Enclosures.
St. Croix, U.S. VIRGIN ISLANDS,
August 29, 1975. Ilon. Rox DE LUGO, Longicorth House Office Building, Washington, D.C.
DEAR Rox: Enclosed is a very distressing letter from my former publishers. I ain now with Photo Editors who have just published my book about Pablo Casals, which is already a tremendous success and will make its debut in Washington most officially in February.
I hate to bother you with this long epistle but in order to understand our dilemma, you have to have the whole story. Also you are the only one whose fights I respect and who has been immensely successful for our islands.
I am alone, but nevertheless I join the crowd of creative photographers in the states. Please give this dangerous situation your thought. Imagine for instance, my most recent work "Pablo Casals" would be unprotected by copyright ! Enclosed also some proof of my latest efforts.
I have also been on NBC for a balf hour with the Virgin Islands photographs as a fitting background to the interview. This was in New Orleans. Then Channel 2 in San Juan repeated a similar effort always with my accent on the Virgin Islands. My latest effort will be quite visible soon in many magazines showing the Governor at Caneel Bay. This is a consigned ad of photography and an extensive caption.
My activities are many and include the beantiful creative painting which my daughter is doing. About this I will write to you at a later date. I would greatly appreciate your interest regarding the letter from Viking Press to me and would you send me a copy of your letter expressing your opinion of the matter that photographers have to be protected as far as the ownership of their work is con(vrned. I am certain that you a re fully aware to whom this letter has to be sent. Thank you for all you can do in this important matter. I shall be most grateful to you if you can be instrumental in bringing this to a satisfactory conclusion, With all good wishes, ('ordially yours,
Fritz HENLE, Member of the ASIP.
THE VIKING Press Isc • PCBLISITERS,
New York, N.Y., July 31, 1975. DEAR FRIEND: As your publishers, we at Viking feel yon should be informed about a situation with respect to copyright that seriously affects each of us, aud we are asking for your assistance in what promises to be a difficult legislative
Although the Congress has considered revision of the Copyright Law for the past ten years without taking final action, everything now seems to point to a resolution in either this session of Congress or the next, the results of which will be with us for a long time. (The present Copyright Law dates to 1.209.) A sound Copyright Law as the foundation of independent writing and pubishing; it is essential to your livelihood and to ours.
The entire library community and much of the educational community are, through their various professional associations, seeking sweeping exemptions from copyright. Libraries want no effective curbs on systematic photocopying, and educators seek a total exemption for copying done for "non-profit educational purposes."
We had hoped that these institutions would adopt a more moderate stance bnt found otherwise when a House Judiciary subcommittee began hearings last month. One of the Congressmen on that committee reported that he had received almost 400 letters from libraries and educators supporting their position, even as the hearings were just getting under way, and that his colleagues could report similar experience. The members are receiving little or no mail from authors or anyone else on the other side of the issue.
We are not against the use of copying equipment to broaden access to knowl. edge. We do believe that systematic copying and distribution by institutions is against the best interests of writers, publishers, and, in the long run, readers. The elimination of all curbs on institutional copying will seriously affect your rights as authors.
The Association of American Publishers, the Authors League, and other organizations are doing everything they can. But it is vital that Congress hear from you. Enclosed is a list of members of the House Judiciary subcommittee conducting the hearings, as well as a list of members of the full Judiciary Conmittee, to whom they will report. I urge you to write the members of the sub committee immediately, and send a copy of the letter to your oron Congressman and your Senators, and a copy, if possible, to me. I'm sure you realize the importance of your action, Sincerely yours,
THOyAS H. GUINZBURG,
LAW OFFICES OP
Washington, D.C., October 1, 1973.
DEAR HERB: Enclosed for your consideration is the proposed amendment to H.R. 2223 to place jukebox royalty rates under review and adjustment authority of the Copyright Royalty Tribunal.
For the purpose of the amendment, a brief explanation is appended. You will note that the explanation assumes that the full Senate Judiciary Committee will approve action earlier taken by the Senate Copyright Subcommittee which reinstated this jurisdiction in the Tribunal. If there is further information you may require, please call upon me. Sincerely,
BENJAMIX L. ZELEXKO. Enclosure.
AMENDMENT TO H.R. 2223 (COPYRIGHT REVISION) TO PLACE JUKEBOX ROYALTY RATES UNDER REVIEW AND ADJUSTMENT BY THE COPYRIGHT ROYALTY TRIBI'SAL Amend H.R. 2223 as follows:
On page 58 line 33 and on page 59, line 14, delete the phrase "and 115" and insert in lieu thereof, “, 115 and 116".
Explanation: The purpose of the amendment is to confer authority on the Copyright Royalty Tribunal to review and adjust jukebox royalty rates periodic ally. The bill as drafted authorizes the Tribunal to undertake such review and adjustment of rates with respect to cable television systems (sec. 111) and mechanical royalties for phono-records (sec. 115). The amendment reflects the action taken by the Senate Copyright Subcommittee and by the Senate Judiciary Committee.
LAW OFFICES OF
Washington, D.C., November 6, 1975.
DEAR HERB: Enclosed for your information is a copy of a letter dated November 3 to the Register of Copyrights from Bernard Korman of ASCAP. The letter concerns a question put to the Register by Chairman Kastenmeier asking whether there was ever a "double payment" as a result of ASCAP licensing. Sincerely,
BENJAMIN L. ZELENKO. Enclosure. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS,
New York, N.Y., November 3, 1975. Hon. BARBARA A. RINGER, Register of Copyrights, Copyright Office, Library of Congress, Washington, D.C.
DEAR Ms. Ringer: I write to confirm our telephone conversation this morning in which you advised me of the question put to you by Chairman Kastenmeier