NS39.3 COMMENTS ON THE AAP DOCUMENT, Cindy Goldstein
Marcia Tuttle, TUTTLE@UNC.BITNET.
Cindy Goldstein of the Tulane University Medical Center Library sent the following copy of a document from the Association of American Publishers. She earlier posted it on both PACS-L and MEDLIB-L. I asked Cindy for permission to reproduce also her own comments on the document, which she granted. There has been discussion among the medical librarians, but so far none on PACS-L. Perhaps newsletter readers will have a response.
Return address on envelope: Carol A. Risher, Director, Copyright and New Technology, Association of American Publishers, Inc., 1718 Connecticut Avenue NW, Washington DC 20009-114; 202 232-2225
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 of 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.
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 its "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.
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
During consideration of the 1976 Act by the House of Representatives (following the Senate action), language was added to Section 108 (g) in response to concerns raised by the library community that on occasion librarians request a photocopy of an article from another library's holdings to satisfy a patron. They pointed out that usually in these cases they would not choose to subscribe to the journal because it had no ongoing relevance to their clientele. These incidental, sporadic and cumbersome-to-fill requests were described as "interlibrary loans", from the days when the actual tangible book or journal was loaned to the requesting library. The House then inserted the following proviso to Section 108 (g):
Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.
The library and publishing communities met under the auspices of the National Commission on New Technological Uses of Copyrighted Works (CONTU) to develop guidelines for construing the "substitution for subscription/purchase" language of the proviso. They reached agreement with respect to the most common sorts of such interlibrary loans: articles from journal issues under 5 years old. Librarians noted that when they got more than five requests per year for materials from a given title, they typically entered a subscription because that number shows sufficient interest to warrant adding the journal to the library's collection, and because ILL "borrowing" is costly in its own right.
The CONTU-assisted guidelines appear in the Conference Report and provide some limits as to what copying may be done under the proviso. These guidelines were created in the "low tech" Interlibrary Loan (ILL) environment of the late 1970's: generally cumbersome, slow, unthreatening photocopying designed to fill certain ILL requests incidental to the library's overall activity. The CONTU Report itself indicated that the guidelines would not apply to institutions specializing in document delivery services:
The point has been made that the present practice on interlibrary loans and use of photocopies in lieu of loans may be supplemented or even largely replaced by a system in which one or more agencies or institutions, public or private, exist for the specific purpose of providing a central source for photocopies. Of course, these guidelines would not apply to such a situation.
The problem today is that the advent of post-1976 technologies -- fax machines, computer networks, low-priced scanners and CD-ROM's -- has facilitated the interlibrary delivery of photocopies of articles and chapter- length excerpts from books and generated services focussed on this conduct. Some facilities have begun to charge service fees for providing the copies while not paying royalties to publishers because the copying is, according to them, 'interlibrary loan and permissible under the CONTU guidelines.' However, as stated above, this copying is far beyond that permitted under CONTU and therefore, may be done only with permission of copyright holders.
Additionally, librarians have vigorously promoted 'resource sharing' which amounts to nothing less than the Senate's third example of forbidden coordinated subscription buying to 'save money' by filling patron needs from source libraries. This copying and document delivery far exceeds the scope of interlibrary 'lending' contemplated by Congress or CONTU in permitting interlibrary loan arrangements under the proviso. When the push for resource sharing and the development of consortia are combined with the new networks and even the existing inter-university network (Internet), one sees a formula for the erosion of publishing revenues in this country, from: 1) lost book and journal subscription sales, 2) lost royalty income from licensing, and 3) lost new product opportunities. The revenue base that now supports publishing relies on multiple opportunities to exploit a product such as income from sales, subscriptions, and licenses. The interlibrary copying without permission and other nonauthorized document delivery denies the copyright owner its rights under the law.
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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:
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.
NS39.3 COMMENTS ON THE AAP DOCUMENT
Cindy Goldstein, Tulane University Medical Center, LB04ILF@MUSIC.TCS.TULANE.EDU.
After re-reading the AAP Statement several times, I'd like to make a couple of comments.
In the background information, reasons for the reversal of the case brought against the National Library of Medicine included "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."
In spite of the "alternative delivery systems" that exist today, the same concerns regarding medical science persist. There has been a lot of talk lately about the cost and quality of health care in this country. Availability of current information on patient care and biomedical research is critical to the provision of good health care. It is quite simply a matterof life and death, and the publishers have priced themselves practically out of business. The need for the information is real, but the cost is prohibitive. If the publishers want to put an end to the cooperative resource sharing that libraries have resorted to to provide that necessary information, they should be prepared for several consequences: 1) lots more paper subscriptions will be cancelled because libraries won't be able to continue to spend their acquisitions budgets on existing subscriptions and also pay per use royalties on every thing they have to get from somewhere else; 2) libraries will put a substantial part of their acquisitions budgets into commercial document delivery systems and/or full text CD systems like ADONIS that include a mechanism for royalty payment; 3) health care costs and quality could be adversely affected.
Someone recently mentioned an article in the June 17 _Chronicle of Higher Education_ by Richard Dougherty. I apologize -- I don't remember who mentioned it or the title of the article, but it was an excellent discussion of the need for universities to take back their research publication role. Dougherty said this would accomplish several things: it would provide university researchers with a ready avenue for publication of their findings; the new publications would be available to one another at reasonable and affordable prices thus allowing universities to get out from under the onerous pricing stranglehold of the publishers and thereby regain some control of their finances; and they would maintain copyright ownership of their research findings. That's a pretty loose summary of a really excellent article.
It would be ironic if Dougherty's scenario came to pass because we would have come full circle. More than a hundred years ago, the _New Orleans Medical and Surgical Journal_ was a very respected scholarly publication which depended heavily on local talent for content. More than fifty years ago,the _Bulletin of the Tulane Medical Faculty_ also provided a local outlet for research findings. Around 1970, both of these publications changed their names and their focus and abandoned their scholarly content to become the _Journal of the Louisiana State Medical Society_ and _Tulane Medicine_(for alums) respectively.
I can't remember whether or not Dougherty carried his scenario out to the eventual appearance of these publications in electronic format available on the Internet, but I think he did. It certainly makes sense in the long run since most universities are on the Internet and that would facilitate distribution of such publications.
Soaring journal costs have been one of the biggest headaches libraries have had in the past 15 or so years, but another related one is the geometric proliferation of journal titles. The universities must take part of the blame for this migraine because of the publish or perish directive that has been an integral part of promotion and tenure criteria. Now we have more journals than we can handle at prices we can't afford and there is strong feeling in the medical library community that much of what is being published is duplicative and/or worthless.
There are obviously going to have to be changes and compromises made on both sides. I just received a letter from Williams & Wilkins announcing their own document delivery service which provides for articles being faxed to libraries within one day. They have a toll free number. You call them with the citation, and they deliver the article by fax, US mail, or Federal Express. Initially they are making available "articles published from 1987 to the present in six of our most frequently cited and sought-after journals..." Costs for this service range from $10.00 for a 1-5 page article up to $25.00 for articles of 26 or more pages. You can even pay with your MasterCard or VISA. ADONIS is also a publisher produced document delivery service of sorts.
I expect we will see lots more of these publisher produced services, and perhaps this is the compromise we will all have to live with. I don't know if librarians really care whether we check in and circulate physical issues of journals or check in CD's or simply get whatever is needed when it is needed. I'm not the least bit sure that our patrons are going to be happy with the virtual demise of the browseable, paper product journal. It will take a lot of user education to reconcile preferences with reality, but it's a cinch that things are going to change, and we'd better be ready to change, too.
My opinions are my own and do not necessarily reflect those of Tulane, NLM, or any other institution.
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