[668] in Public-Access_Computer_Systems_Forum
AAP Statement, pt.1
daemon@ATHENA.MIT.EDU (Cindy Goldstein)
Mon Jul 6 09:48:25 1992
Date: Mon, 6 Jul 1992 08:42:00 CDT
Reply-To: Public-Access Computer Systems Forum <PACS-L%UHUPVM1.BITNET@ricevm1.rice.edu>
From: Cindy Goldstein <LB04ILF@MUSIC.TCS.TULANE.EDU>
To: Multiple recipients of list PACS-L <PACS-L%UHUPVM1.BITNET@ricevm1.rice.edu>
----------------------------Original message----------------------------
Since I've already received several requests for the full text
of the AAP Statement that I referred to in my posting earlier
today, I decided just to type it and post it as well. It appears
in 2 parts because of its length. The footnotes appear at the end
of part 1 here although they appeared on the pages with the
corresponding reference in the original. The return address on the
envelope included a name although the copy of the statement I
received was not signed. If any of you wish to contact the
individual whose name appeared on the envelope, here's the
information:
Carol A. Risher
Director
Copyright and New Technology
Association of American Publishers, Inc.
1718 Connecticut Avenue, N.W.
Washington, D.C. 20009-1148
Telephone 202 232-2225
"Statement of the Association of American Publishers (AAP)
on Commercial and Fee-Based Document Delivery
The copyright law provides the copyright holder with the exclusive right
to control the making of copies of a copyrighted work. Exceptions to this
exclusive right are intended to permit limited, occasional copying for
individuals in particular circumstances which will not impair the rights of the
copyright holder, nor generate regular business-like activities based on
usurpation of copyright owners' rights, markets, or materials.
Section 108 if the Copyright Act, for example, specifies that libraries may
make copies under certain conditions; among these are that there be no direct or
indirect commercial advantage, and that there be no "systematic" copying of even
single copies. Moreover, the Act, legislative history and case law make quite
clear that copyright owners have valuable and protected interests in the
licensing of their rights to others, as well as in the sale of their products;
that non-profit uses are subject to the rights of copyright owners; and that de
facto coordination of copying and purchase activity among customers, and the
development of services -- whether "private" or "public" -- for the specific
purposes of providing customers with copies, are beyond the limited exceptions
to copyright owners' rights.
It follows that a commercial document delivery service engaging in the
copying and redistribution of single and multiple copies of copyrighted articles
must secure permission from and (if requested) pay royalties to the copyright
holder. The case is not materially different for the newly-emerged, fee-based
and technology-enhanced copying and distribution services of libraries. These
activities are indistinguishable in purpose and effect from those of commercial
document suppliers. They are also not permissible under the CONTU Guidelines
governing the copying done to support the practice of interlibrary lending.
The purpose of the copyright law is to ensure authors and publishers the
economic wherewithal to devote their energies, talents and funds to the creation
and effective packaging and distribution of intellectual works. The publishers'
revenue base of sales, subscriptions, and royalties is essential to scholarship,
research, education and simple enjoyment of the written word. Its vitality
should not be sapped by rampant, unauthorized document supply, whether from
commercial or non-profit sectors.
BACKGROUND TO THE AAP STATEMENT ON DOCUMENT DELIVERY
In order to understand the copyright law's treatment of library
photocopying, it is necessary to understand the judicial history that led to the
crafting of its text. In 1968, the Williams and Wilkins Publishing Company
brought a copyright infringement case against the National Institutes of Health
and the National Library of Medicine. NIH had been making photocopies of
copyrighted articles for internal distribution and NLM had been distributing
photocopies of copyrighted articles for distribution to other libraries under it
"interlibrary loan" program.
A hearing examiner determined that such copying was not fair use ("Whatever
the bounds of 'fair use' as defined and applied by the courts, defendant is
clearly outside those bounds"), but his decision was reversed by the Court of
Claims.1 Reasons for the reversal included certain ambiguities in the language
of the 1909 copyright act; a concern that medical science might be hampered by
a prohibition on copying due in part to the fact that alternative document
delivery systems did not, at that time, exist; the existence of some restriction
on page count and multiple copies in place at NLM and a practice at NIH that did
not permit copying for non-NIH personnel; and the fact that, absent photocopying
the delay in waiting for the original article might cause some researchers to
forgo use of the materials.
The court also urged Congress to clarify this situation in the new
copyright act which was then under consideration. (The Senate Report notes that
the opinion of the Court of Claims said the Court was engaged in "a 'holding
operation' in the interim period before Congress enacted its preferred
solution.") The Supreme Court heard arguments but, because the Justices were
evenly divided 4-4, wrote no conclusive opinion establishing national fair use
doctrine. That result deprived the case of meaningful precendential weight but
allowed the decision below, holding that such photocopying, under the 1909 Act,
was fair use, to stand.
1976 COPYRIGHT ACT
Congress paid close attention to the Williams & Wilkins case in drafting
the 1976 Copyright Act, particularly by prohibiting "systematic" copying:
Section 108 (g): [Libraries'] rights of reproduction and distribution
under this section extend to the isolated and unrelated reproduction
or distribution of a single copy...but do not extend to cases where
the library or archives, or its employee...engages in the systematic
reproduction or distribution of single or multiple copies...
The Senate Report, in describing this prohibition, states:
While it is not possible to formulate specific definitions of
"systematic copying", the following examples serve to illustrate
some of the copying prohibited by subsection (g).
(1) A library with a collection of journals in biology informs other
libraries with similar collections that it will maintain and build
its own collection and will make copies of articles from these
journals available to them and their patrons on request.
Accordingly, the other libraries discontinue or refrain from
purchasing subscriptions to these journals and fulfill their
patrons' requests for articles by obtaining photocopies from the
source library.
(3) Several branches of a library system agree that one branch will
subscribe to particular journals in lieu of each branch purchasing
its own subscriptions, and the one subscribing branch will reproduce
copies of articles from the publication for users of the other
branches.
These two examples both reflect and are responsive to the type of copying
that was the subject of the Williams and Wilkins case, and has become so
troubling for the publishing industry today. The omitted example "(2)" referred
to inhouse copying and not document delivery.2
1. Williams & Wilkins Co. v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd
by an equally divided Court, 420 U.S. 376 (1975).
2. The second example reads as follows:
(2) A research center employing a number of scientists and
technicians subscribes to one or two copies of needed periodicals.
By reproducing photocopies of articles the center is able to make
the material in these periodicals available to its staff in the same
manner which otherwise would have required multiple subscriptions.
This type of prohibited systematic copying was litigated in the case
against Collier, Shannon and Scott, a law firm that systematically
made copies of newsletters to avoid buying more than one
subscription. It also has relevance in the pending litigation
against Texaco. The purpose of this paper is to focus on problems
raised for the publishing industry by document delivery services.
These problems appear at least as serious as those underlying the
"in-house" copying lawsuits.
end of part 1
