College and Research Libraries Copyright Problems These papers were presented as a symposium sponsored by the Governmental Relations Section of ALA's Library Administration Division at Washington, D. C., June 23, 1959. The papers are by Benjamin Kaplan, Professor of Law, Harvard University; Edward G. Freehafer, Director, New York Public Library; Joseph W. Rogers, Chief, Copyright Cataloging Division, Library of Congress; and Rutherford D. Rogers, Chief Assistant Librarian, Library of Con- gress. Richard E. Chapin, Director, Michigan State University, pre- pared the Introduction. Introduction: Copyright Law Revision and Libraries TH E C O P Y R I G H T L A W in effect today is basically the law that was enacted in 1909. It is true that there have been amendments f r o m time to time, but these are m i n o r c o m p a r e d to the m a j o r changes in the patterns a n d techniques of c o m m u n i c a t i o n that have taken place in the succeeding half-century. Faced with the difficult p r o b l e m of administer- ing a nineteenth-century law in a twen- tieth-century world, the U n i t e d States Copyright Office has been studying the problems that w o u l d require attention in a general revision of the copyright law. As the time approaches for a proposal to b e submitted, it behooves us as librar- ians to formulate o u r views on some of the basic copyright questions which af- fect o u r operations. In the A p r i l 1958 issue of the ALA Bulletin, Joseph W . Rogers enumerated a n u m b e r of the questions f o r which the profession must find answers. If we lack the interest, or if we are n o t i n f o r m e d , we will b e unable to state o u r position regarding this vital subject. W e will then be forced to oper- ate with a law w h i c h may b e inadequate for o u r needs. A t the present time A L A , the Association of Research Libraries, Special Libraries Association, Music Li- brary Association, and other interested groups are actively f o l l o w i n g the prog- ress of revision activities. Because of the need f o r information relating to copyright activities, a meet- ing was held during the Washington Conference to p r o v i d e A L A members with information regarding some of the library-related problems involved in re- vision of the copyright law. T h e f o l l o w - ing papers1 were delivered at the meet- ing of the L A D Governmental Relations Section o n June 23, 1959. L. Q u i n c y M u m f o r d , Librarian of Congress, acted as moderator of the meeting, and Arthur Fisher, Register of Copyrights, and A b e A . G o l d m a n , chief of research of the Copyright Office, introduced the general topic of copyright law revision and par- ticipated in the discussions which fol- lowed the presentation of the papers. A series of background studies on the principal problems at issue, developed by the Copyright Office under the direc- tion of Mr. G o l d m a n , is n o w nearing 1 T h e s e p a p e r s were followed by i n f o r m a l r e m a r k s by D a n M . L a c y , m a n a g i n g director of the A m e r i c a n Book P u b l i s h e r s Council, I n c . , on " F a c t o r s Influencing the P u b l i s h e r s ' P o s i t i o n s on Copyright R e v i s i o n . " Other commitments h a v e prevented M r . L a c y f r o m p r e p a r i n g a reconstruction of his talk f o r publication at this time. A v e r y brief report appeared in the L i b r a r y of C o n g r e s s Information Bulletin f o r J u l y 6, 1959, pp. 410-411.— Editor. 2 1 2 C O L L E G E A N D R E S E A R C H L I B R A R I E S c o m p l e t i o n , and will soon be available in printed f o r m f r o m the Superintendent of Documents. T h e comments of various members of the Panel of Consultants, a p p o i n t e d by the Librarian of Congress in 1956 to advise the Copyright Office in the revision effort, are a p p e n d e d to each study. It is h o p e d that the Copyright Law Revision Committee of the L A D Gov- ernmental Relations Section will be able to prepare papers stating the position of the Association on copyright revision. Comments f r o m individual members are solicited. T h e s e should b e sent to one of the f o l l o w i n g members of the com- mittee: Ray W . Frantz, Jr., Librarian, University of R i c h m o n d Library, R i c h - m o n d , Virginia; Alberta L . Brown, Li- brarian, U p j o h n C o m p a n y Library, Kalamazoo, Michigan; J o h n Fall, Chief, Economics Division, P u b l i c Library, N e w York, N e w York; Joseph W . R o g - ers, Chief, Copyright Cataloging Divi- sion, Library of Congress, Washington 25, D. C.; Earl Borgeson, Librarian, Law School Library, Harvard University, Cambridge, Massachusetts; R i c h a r d E. Chapin, Director of Libraries, Michi- gan State University, East Lansing, Michigan, Chairman, Copyright Law Re- vision C o m m i t t e e . — R i c h a r d E. Chapin. Copyright, Libraries, the Public Interest MY R O L E A T T H I S M E E T I N G i s t h e c o n -genial one of p r o v i d i n g some back- g r o u n d f o r a discussion of copyright law revision. I shall say a word by way of general introduction to the subject and then speak very briefly about a few ques- tions of particular interest to librarians. Y o u have heard it said many times, and on all sides, that o u r copyright stat- ute needs comprehensive overhaul; and although this statement is a c o m m o n - place, it is true. It has been true for a long time. I well remember o n e of my older associates b e m o a n i n g the sorry state of copyright law back in 1933, when I began law practice; and now, a quarter-century later, I find myself mak- ing similar m o a n to my o w n students. T h e facts of life have simply overrun and overwhelmed considerable parts of the statute, which dates f r o m 1909. T h e e c o n o m i c and industrial c o m p l e x in which the statute operates is altogether different f r o m what it was in the gentle days of President T a f t . Inventions have revolutionized some of the principal means of communication. W h y in the face of these titanic changes has the statute—I speak here of its domestic as distinguished f r o m its international aspects—persisted without fundamental revision? T h e reasons are many, but surely o n e of them is the nat- ural and laudable self-seeking of the sev- eral interests concerned with copyright law. Proposals satisfactory to some groups have met implacable opposition f r o m others; so it has gone in one at- tempted revision after another; and the wit of man has so far failed to produce a sound o m n i b u s bill that could com- mand general support. T h i s is not to say that the law faces imminent collapse. Private interests have founds ways of accommodating to the existing statute, sometimes by disregard- ing it. T h e courts have been reasonably inventive in putting glosses on the law to meet exigent problems. In recent years we have enjoyed an energetic ad- M A Y 1 9 6 0 2 1 3 ministration of the Copyright Office in W a s h i n g t o n which has known h o w to palliate various defects in the law. W e may confidently predict diat the founda- tions of the R e p u b l i c will not crumble if the copyright statute stands unchanged for another decade. Yet it is or ought to be an American habit not to be content with the merely tolerable but rather to strive for something better. In fact present prospects f o r intelli- gent revision are reasonably encouraging. W e have recently witnessed a notable development on the international front. As you know, one of the saddest features of o u r law f r o m 1790 to the mid-1950's was its x e n o p h o b i c trend: the law ac- corded only drastically limited rights to published works of foreign authorship. Recall the wholesale American piracies of British works through most of the nineteenth century. All that is n o w changed. T h e most dramatic steps came a few years ago when we ratified the Universal Copyright C o n v e n t i o n ( U C C ) and welded it into o u r statute law, with the result—to speak in general and im- precise terms—that works of nationals of other subscribing countries can with m i n i m u m difficulty secure protection here corresponding to that given like works of o u r o w n nationals. O u r law has thus been humanized in a way be- fitting our w o r l d position. It should be added that the U C C helps o u r nationals to secure m o r e effective protection of their works abroad. Formulation of the U C C was a U N E S C O project in which o u r Copy- right Office, under the leadership of the Librarian of Congress, took a vital part. Although in legislative matters it is hard to trace cause into effect, the success of the enterprise seems attributable in some considerable measure to the care and patience with w h i c h the prelimi- nary and preparatory work was done. T h e U C C experience illustrates the o l d observation that o p p o s e d factions can often be led to reasonable adjustment in the p u b l i c interest by a process of ex- posing all the facts fairly and fully to the c o m m o n view. T h i s brings m e to the current effort to revise o u r domestic law. O u r Copy- right Office has evidently learned a les- son f r o m the U C C episode. For, as a first step toward revision, the Register of Copyrights undertook to sponsor a series of scholarly studies covering the m a j o r problems of copyright law. T h e s e studies have been issued f r o m time to time with comments by members of a panel of ex- perts a p p o i n t e d by the Librarian of Con- gress. T h e project is n o w nearing com- pletion. So far as possible the Copyright Of- fice studies grind n o axes. T h e y attempt to take a long view of their subjects— and I need not tell you that an under- standing of historical origins can itself be a force f o r rational improvement. Some of the studies m o v e beyond our territorial boundaries and consider rele- vant experience in other countries. A few explore practice and o p i n i o n by means of questionnaires addressed to those intimately affected by the copy- right law. T h e r e is reason to think that all this preliminary work and the discus- sion which it has engendered are creat- ing an atmosphere favorable to dispas- sionate reconsideration of the law. Let m e n o w turn briefly to a few prob- lems of immediate concern to librarians which may find solution in the course of a general revision of the statute. Photocopying. T h e invention of effi- cient and economical methods of repro- ducing printed and other material gives rise to a p r o b l e m which impinges on the day-to-day business of librarians. O u r present statute quite naturally secures to the copyright proprietor the right to " c o p y " the copyrighted work: this is in fact the essence of the copyright m o n o p - oly. Nevertheless it has been generally assumed that a reader need not obtain the consent of the copyright proprietor 2 1 4 C O L L E G E A N D R E S E A R C H L I B R A R I E S to make a hand-copy of passages f r o m a copyrighted work f o r ordinary scholarly purposes. ( T h i s privilege sometimes goes by the name of "fair use.") In lieu of c o p y i n g by hand, may not the reader take the m o r e expeditious course of snapping a picture of the page? M a y not the library d o this j o b f o r h i m on re- quest? But what are we to say about a request by an industrial company f o r 300 photocopies of copyrighted material to be distributed to company employees? A privilege on the part of libraries or others to make photocopies ad lib., dero- gating f r o m the m o n o p o l y rights con- ferred on authors (and on publishers by succession to authors), might conceivably diminish publishers' financial returns to the p o i n t where they w o u l d lose incen- tive to publish and authors w o u l d cor- respondingly lack incentive to create, thus defeating the overriding purpose of any copyright law—encouragement of the production and dissemination of works of the m i n d . I have been referring here to the p h o t o c o p y i n g of published works under copyright. A rather differ- ent although related p r o b l e m arises on the p h o t o c o p y i n g of unpublished manu- scripts in which literary rights subsist. T o approach a solution of these dif- ficulties, which have long worried librar- ians, we need to k n o w the extent and character of the p h o t o c o p y i n g now being d o n e by and requested of librarians. T h i s information may show u p some false issues even if it will uncover new and unsuspected real ones. T h e Copy- right Office study o n the subject of photocopying 1 does not assemble these necessary data but makes a contribution along a different line by showing how the p r o b l e m has been attacked through "gentlemen's agreements" in this coun- try, and through such agreements and explicit legislation, some of it very re- cent, in other countries. I will add the 1 U . S . Copyright Office, Photoduplication of Copy- righted Material by Libraries, by Borge Varmer (Gen- eral Revision of the Copyright L a w , Study No. 19; Washington: Copyright Office, May 1959). M A Y 1 9 6 0 single c o m m e n t that where publishers cannot themselves meet the needs of readers by delivering copies rapidly and at reasonable cost, libraries are inevita- bly going to supply copies, and their privilege to d o so should be regularized and acknowledged. But this proposition, with which publishers might possibly agree, is only a start. T h e precise terms of a fair adjustment of the interests in- volved will need careful deliberation. Copyright Notice. O u r law commands that a formal notice of copyright appear o n published copyrighted works. If the notice is omitted or is deficient, the copy- right may be forfeited. In the larger part of the world there is n o such formal re- quirement. Here are some of the questions thrown u p by the notice: W h a t , exactly, are the values of the notice to libraries and other users of copyrighted works? O n this question a highly suggestive Copy- right Office study has been published. 2 T a k i n g d u e account of the values of the notice, can we justify the stiff penalty of loss of copyright for failure—which may b e inadvertent—to carry out a for- mal prescription? A n d if a copyright notice is to be continued, whether as a compulsory or permissive feature of the law, can it be improved in content? Copyright Deposits. W i t h exceptions for certain foreign productions, the pres- ent law requires that applicants for stat- utory copyright forward copies of their works to the Copyright Office in Wash- ington. Many of these deposits find their way, under the law, to the shelves of the Library of Congress. T h e deposit system is intertwined with registration require- ments. T h r o u g h these procedures a very im- portant part of the cultural contribution of the nation is preserved and recorded. T h e deposit-registration routines serve 2 U. S . Copyright Office, Uses of the Copyright No- tice: A . Commercial Use of the Copyright Notice, by William M. Blaisdell; B. Use of the Copyright Notice by Libraries, by Joseph W. Rogers (General Revision of the Copyright Law, Study No. 17; Washington: Copyright Office, April 1959). 2 1 5 several purposes, but the bibliographical objective is a d o m i n a t i n g one. So strong indeed is the librarians' professional in- terest in this field that lawyers ought to take a back seat and begin by asking in- structions f r o m librarians. So I will say only that revision of the Copyright Law will provide an opportunity for re-exam- ining and reappraising all aspects of a great bibliographical resource. Librarians are and o u g h t to be exer- cised over these three issues of copyright law, but I suggest that their concern should not stop there. Underlying the librarians' craft is the entire law regu- lating the ownership and use of literary, artistic, and musical works, and this law is largely the law of copyright. It is not an accident that the U n i t e d States Copy- right Office is set u p as part of the Li- brary of Congress: this is the sign of a kind of symbiotic relationship between " c o p y r i g h t " and "library." I h o p e that this meeting under A L A auspices will foster an ever increasing interest of li- brarians in copyright, not only because of the inherent fitness of the thing, but because librarians, f r o m their knowledge and experience and with a vision uncol- ored by excessive partisanship, can con- tribute m u c h to the creation of a better copyright l a w . — B e n j a m i n Kaplan. Photocopying and Fair Use • SE C T I O N I of the U n i t e d States copyright law accords the proprietor, or owner, of a copyright exclusive rights to print, publish, copy, and vend the work. In other words, the proprietor has the ex- clusive right to p r o d u c e the work for p u b l i c consumption, to c o p y it, and to sell it. T h e proprietor is given these rights in order to encourage the record- ing and dissemination of man's intellec- tual endeavor, without fear of piracy. O n c e the w o r k is p r o d u c e d f o r p u b l i c c o n s u m p t i o n the p u b l i c may read it, and be stimulated by it, and may get ideas f r o m it, but may appropriate parts of it only in certain circumstances. T h e r e are occasions when, f o r example, in the p r o d u c t i o n of a new work by a different person, it is necessary or desirable to use the copyrighted work. W h e n this hap- pens, however, the proprietor may con- sider the use of his w o r k i m p r o p e r or excessive, thus i m p i n g i n g o n his rights, and as a result he may decide to sue for infringement. T h e courts have attempted to resolve such conflict of interest b y a rule of rea- son. T h e y have n o t imposed liability f o r infringement if the use of copyrighted material is j u d g e d to be reasonable, or fair. T h e y have tried, case by case, to weigh the exclusive rights of the pro- prietor against those of the user of the material. O n e definition of fair use tells us that it . . . " m a y be defined as a privilege in others than the o w n e r of the copyright, to use the copyrighted material in a rea- sonable manner without his consent, notwithstanding the m o n o p o l y granted to the o w n e r of the c o p y r i g h t . " 1 O r again, fair use has been defined as such use as is "reasonable and c u s t o m a r y . " 2 W e notice, however, n o definition of "reasonable." A n o t h e r writer states that " T h e r e is o n e proposition about fair use a b o u t which there is widespread agree- 1 H o r a c e G. B a l l , The Lazv of Copyright and Literary Property, ( A l b a n y : B a n k s & Co., 1944) p. 260. 2 S h a p i r o , B e r n s t e i n & Co., I n c . v. P . F . Collier & S o n Co. and J o s e p h P. M c E v o y , 26 USPQ, 40-43. 2 1 6 C O L L E G E A N D R E S E A R C H L I B R A R I E S ment: it is not easy to decide what is and what is not a fair use." 3 It is clear that fair use or reasonable use lies somewhere between the exclu- sive rights of the proprietor and those of the user who, f o r one reason or an- other, denies that his use of the copy- righted material infringes u p o n such rights. Certain uses of copyrighted material appear to be in the p u b l i c interest, and in general are held to represent fair use. T h e s e have been identified as incidental use, use for purposes of review and criti- cism, for a parody and burlesque, for scholarly works and compilations, for non-profit or governmental purposes, use in litigation, and personal or private use. It is this last area in which libraries have long been active, meeting what they consider to be their traditional ob- ligation to make their collections of m a x i m u m service to their readers. Al- though the law grants the copyright owner the exclusive right to c o p y his work, p r o b a b l y n o one denies the right, f o r example, of a reader to c o p y in long hand a published work, even though copyrighted, for his personal or private use. T h e same might be said of copying by typewriter o r by some other mechani- cal or photographic m e t h o d in lieu of manual transcription. A n d it w o u l d seem reasonable to c o p y f o r personal or private use in lieu of loan, either f o r con- venience, or when lending is precluded by policy or by loan regulations. It has been stated furthermore that " a n y o n e may copy copyrighted materials f o r the purposes of private study and r e v i e w . " 4 It has also been stated that "private use is completely outside the scope and in- tent of restriction by c o p y r i g h t . " 5 In any event, copying by p h o t o d u p l i - cation has been a traditional practice of libraries in making their materials of 3 S a u l Cohen, " F a i r U s e in the L a w of Copyright," in Copyright Law Symposium No. 6 (New Y o r k : Columbia University P r e s s , 1955) p. 52. 4 Cohen, op. cit., p. 58. 5 Ralnh R. Shaw. "Publication and Distribution of Scientific L i t e r a t u r e , " CRL, X V I I ( 1 9 5 6 ) , 301. m a x i m u m usefulness for personal or pri- vate use. In d o i n g so, however, they have tried to observe the inherent criteria for fair use such as the type of use, the in- tent of use, the quantity and value of the materials used and the degree in which the use may prejudice the sale or diminish the profits of the original work. W i t h this in m i n d , and recognizing as far back as 1935 the growing use of photographic methods of reproduction, the so-called Gentlemen's Agreement of that year laid d o w n certain g u i d e lines f o r copying by libraries. Generally speak- ing this provided f o r the making of one copy of part of a copyrighted b o o k or periodical v o l u m e f o r a scholar repre- senting in writing that he desired such reproduction in lieu or in place of man- ual transcription and solely f o r pur- poses of research, provided that he is notified he is not exempt f r o m liability for misuse of the reproduction, and that the reproduction is made without profit to the maker. T h e agreement is n o longer operative as such, but is still in- fluential as a guide in the c o p y i n g of material f o r use in personal research. In 1941 A L A adopted a R e p r o d u c t i o n of Materials Code, which in effect re- stated the principles of the Gentlemen's Agreement, with some amplification. Meanwhile some copyright proprietors view with concern the emergence of quicker and simpler devices f o r photo- duplication. Quite understandably they fear the possibility of easy duplication by almost anyone and easy duplication of multiple copies, with detrimental ef- fect on the sale of the work in original form. T h e extent, if any, to which li- braries may find themselves involved in the economics of this p r o b l e m is a mat- ter which should be studied. Whatever justification in the p u b l i c interest can be advanced in support of a user mak- ing multiple copies w o u l d certainly re- quire clear demonstration. In addition to c o p y i n g for personal use, there are other purposes f o r which M A Y 1 9 6 0 217 libraries need to copy. Books wear out, get lost, are even stolen, mutilated, or otherwise damaged. In many instances p r o m p t replacement is highly desirable, if not essential. C o m m o n practice, I am sure, is to order new copies. However, in the case of older books, many of them still subject to copyright, new copies often may b e secured only at consider- able expenditure of time and effort, if at all. A copyrighted b o o k may be out of print, and not available through the second-hand market short of p r o l o n g e d search. T h e copyright o w n e r may not be readily available. T h e s e circumstances may obtain par- ticularly in the cases of defunct periodi- cals, pamphlets, privately printed works, and foreign publications. T h u s there arises a question as to what the librar- ian's course of action should b e in fulfilling his obligation to make the ma- terials for study and investigation read- ily available as economically as he can. Should he c o p y an o.p. title f o r his li- brary's collections to serve the best inter- ests of his library's users, in accordance with his best j u d g m e n t , or must he ex- haust the possibilities of the second hand market, and, failing that, exhaust all possibilities of o b t a i n i n g permission to copy? A n d h o w is the p u b l i c interest best served in the case of research ma- terials if permission to c o p y is refused? A similar question arises when librar- ies need to copy to preserve the text of materials disintegrating on their shelves because of the p o o r quality of the paper on which they are printed. T h i s is a p r o b l e m of great m a g n i t u d e f o r research libraries. H e r e again there is a question as to what should be the librarian's rea- sonable course of action in meeting his obligation to assure preservation of re- search materials. Should he g o ahead and copy, or must he first make every effort to seek permission? Immediately related to this is the question as to h o w m u c h freedom of ac- tion the librarian should properly have in copying for preservation u p o n receipt newly published material printed on paper sure to break d o w n in a relatively short time. If u p o n receipt of material of research value such break-down is easy to predict, it is certainly m o r e e c o n o m - ical to copy immediately, and to cata- logue and house the copy. Is it unreason- able to conclude that such c o p y i n g is in the p u b l i c interest, and not damaging to the copyright owner? Certain kinds of materials—pictures, maps, charts, music—present special prob- lems in fair use, the implications of which need to be studied further in re- lation to copying by libraries. Moreover, careful consideration must b e given the special problems of c o p y i n g unpublished material subject to c o m m o n law copy- right. In this brief presentation I have tried only to p o i n t out some of the factors and issues in respect to libraries and fair use and p h o t o c o p y i n g . T h e s e require careful study with attendant fact finding and analysis. T h e answers come neither quickly n o r easily. T h e r e are several avenues of approach to solutions in respect to the problems mentioned. O n e is through statutory re- vision. Another lies in the direction of establishing some system of royalty fees. Another, stopping short of either of the first two, looks to the d e v e l o p m e n t of a working c o d e of reasonable practice by libraries in fulfillment of their respon- sibility toward facilitating investigation and research. T h e Joint Library C o m - mittee on Fair Use in P h o t o c o p y i n g has been concentrating on the third ap- proach in its deliberations to date. T h e C o m m i t t e e n o w has the h e l p of legal counsel recently retained under a grant from the Council on Library Resources in studying the b a c k g r o u n d and in gath- ering pertinent i n f o r m a t i o n and data needed f o r the formulation of recom- m e n d a t i o n s . — E d w a r d G. Freehafer. 2 1 8 C O L L E G E A N D R E S E A R C H L I B R A R I E S Copyright Notice TH E P R E S E N T L A W requires that each published work, in order to be copy- righted, shall contain a copyright notice in or u p o n all published copies of that work. T h e law is specific as to the con- tent and f o r m of the notice and as to its location in or on the work. T h e notice contains three elements: the w o r d "copy- right" (spelled out o r abbreviated, or in- dicated by the copyright symbol), the name of the copyright owner, and the year date of publication. A l l three ele- ments must be present in notices in books, periodicals, contributions to peri- odicals, dramas, and music (this f o r m is also generally considered to be that required f o r m o t i o n pictures); an op- tional f o r m is permitted for maps and in the several art classes, allowing the use of an abbreviated notice without the year date. T h e informational circular used by the Copyright Office to answer the many inquiries it receives about notice con- tains the f o l l o w i n g warning: N O T E : O n c e a work has been pub- lished without the required copy- right notice, copyright protection is lost permanently and cannot be re- gained. A d d i n g the correct notice later to the original o r subsequently produced copies will not restore pro- tection or permit the Copyright Of- fice to register a claim. Here is the rub. Despite the clarity of the notice provisions in the law and the care taken by the Office to explain these provisions fully, works for which their authors or owners wished to have copy- right protection have, through ignorance or inadvertence, sometimes been pub- lished lacking the intended notice, con- taining a notice but in the wrong place, or containing a notice that is defective in some essential aspect. Such works may go immediately into the p u b l i c domain. Because the law states specifically that the copyright notice must b e affixed to each copy thereof published, reprints and reproductions of copyrighted works issued without also reproducing the copyright notice may have the effect of throwing such works into the p u b l i c do- main, even when the permission of the copyright owner has been secured. N o t unnaturally, a great many copy- right owners feel that a permanent loss of copyright is too severe a penalty for a technical defect and that this should be corrected in a new law. Some w o u l d eliminate the copyright notice com- pletely, so that all works potentially copyrightable w o u l d be automatically copyrighted simply by publication. T h e Copyright Office has not only studied the legal aspects of the notice provision, but has also explored the use- fulness of the notice with groups that use copyright materials. T w o explora- tions were made, one a rather small but representative sampling of American li- braries of all types, and the other a larger survey of the principal copyright industries: notably the b o o k , periodical, newspaper, and music publishing indus- tries, and the printing, greeting card, a n d b r o a d c a s t i n g i n d u s t r i e s . T h e s e groups were asked a variety of questions designed to discover h o w and to what extent they used the copyright notice and the value of the notice to them. T h e results demonstrated clearly that indus- try uses were primarily for commercial purposes and that library uses were pri- marily for non-commercial purposes. Commercial users of copyrighted ma- terials refer to the copyright notice prin- cipally to satisfy themselves as to whether or not a work is under copy- right, and, if so, to secure the name of the owner. T h e y are somewhat less inter- ested in the date of copyright. Even if the property has changed hands since M A Y 1 9 6 0 2 1 9 first publication, being able to obtain the name of the original owner f r o m the notice provides a starting p o i n t f r o m which to search for subsequent owners. Commercial users make use of existing copyrighted properties through printed reproduction, p u b l i c performance as by broadcasting, or sound recording. T h e broadcasting and newspaper publishing industries tend to be concerned less than others with the notice since they are pro- tected by contracts with the suppliers of the materials they use commercially. T h e s e suppliers, o n the other hand, nor- mally are concerned with the notice. Ex- cept f o r these two industries, f r o m two- thirds to three-quarters of the firms canvassed believe the elimination of the copyright notice w o u l d make their work m o r e difficult. T h e canvass of libraries demonstrated that almost all libraries use the copyright notice frequently. Most libraries acquire m o r e copyrighted works than works that are not copyrighted, and the element of the notice of greatest value is the copy- right date. T h i s is widely interpreted as the date of the content of the work. Usu- ally this interpretation is correct, since the date required by the law is the year date of first publication. T o the extent that copyright date actually does repre- sent the date of content, it is a conven- iently placed aid to b o o k selection and reference w o r k ; it is also useful in dis- carding, ascertaining the existence of earlier editions, cataloging, shelflisting, shelf arrangement, identifying rare books, and other functions. T h e name in the notice, on the other hand, is of relatively little interest to li- braries, although it is used in c o n j u n c - tion with name in imprint when it is necessary to write f o r permission to duplicate. Libraries handling large num- bers of requests f o r photocopies, princi- pally large university and p u b l i c librar- ies, d e p e n d u p o n it as their principal guide in determining whether a work may be copied without permission. Most libraries w o u l d be inconven- ienced, many quite seriously, if the no- tice were n o longer required or if the copyright date were n o longer required. Some libraries m e n t i o n e d the difficulties that arise f r o m the fact that date is not required in the notice f o r maps, and urged strongly that the law b e changed to require it in the future. T h u s there are many w h o believe that the p u b l i c g o o d argues strongly f o r re- tention of the notice; some believe it should not only be retained but should b e elaborated to include the dates of all earlier editions, and to specify the limi- tations of the claim when it pertains only to a portion of a complete work, as in editions subsequent to the first. Others believe that the present specific require- ments of the law are too strict. Most of the specialists n o w advising the Copyright Office on revision prob- lems take a m i d d l e position which w o u l d retain notice as a general requirement but w o u l d preserve the copyright if the notice were omitted inadvertently. T h u s , unintentional omissions o r errors could be cured, but an innocent infringer w h o had been misled by the absence of the copyright notice w o u l d b e absolved f r o m liability. M a n y of these advisers w o u l d relax the provisions relating to the f o r m of the notice and its position in the work, but generally not as to content. T h e notice provision of the Universal Copyright C o n v e n t i o n is strongly fa- vored; that is, the notice w o u l d consist of the copyright symbol, the name of the copyright owner, and the year date of first publication, placed " i n such man- ner and l o c a t i o n " as to give reasonable notice of claim of copyright. T h e attitude of the library profession on this p r o b l e m is important not only because libraries appear to have, j u d g i n g f r o m the results of the survey, a partic- ular " p r i v a t e " interest in copyright no- tice, but also because they represent, to an important degree, the p u b l i c interest as w e l l . — J o s e p h W. Rogers. 2 2 0 C O L L E G E A N D R E S E A R C H L I B R A R I E S Deposit of Copies of Copyright Works in the Library of Congress SI N C E 1870 roughly ten million works, in one or two copies each, have been deposited in the Library of Congress through the operation of the copyright law. Approximately half of these have gone into the collections of the Library, and another one-and-a-half million, mostly unpublished works and advertis- ing materials, are retained in the Copy- right Office. Others have been trans- ferred to the Department of Agriculture Library, the National Library of Medi- cine, and other federal libraries in the District of Columbia. A great many have been used for foreign exchange, returned to copyright claimants, made available to the Congress, sold, or destroyed as waste paper after selective screenings. It is almost impossible to give you suc- cintly any kind of mental image of these deposits. Nevertheless, it is desirable to try. T h e copyright deposit system has given the Library of Congress a nearly complete collection of the creative and factual published works in the form of books, periodicals, dramas, music, and maps, and a representative collection of motion pictures, produced commercially in the United States since 1870. Deposits of art works, printed ephemera, and ad- vertising matter, while substantial, are not complete nor fully representative of the total domestic production. In addi- tion, large numbers of unpublished works of music and drama have been deposited since 1909. For better or for worse, the deposits represent, in materials usually capable of preservation, the strengths and weaknesses of American culture. T h e general revision of the copyright law in 1909 took cognizance of the grow- ing space problem of the Library by giv- ing authority to the Librarian of Con- gress to choose one or both copies of any deposit for the Library's collections, and by giving authority to the Librarian and the Register of Copyrights jointly to dis- pose, by various means, of copyright de- posits not required for library use. It also renewed the Librarian's authority to de- mand the deposit of works in those in- stances when it was known that works published with the copyright notice had not been deposited within a reasonable time; this authority was now lodged with the Register of Copyrights. Copyright owners who could not, or would not, comply with such demands for deposit were subject both to a fine and to the forfeiture of their copyright. Many authors and publishers feel that this provision for forfeiture is unfair. T h e y believe that, while a copyright reg- istration system including the deposit of copies is desirable, registration should not be an absolute requirement for copy- right, especially since the failure to regis- ter within any specified time may be due to inadvertance or oversight rather than intent. Except for this provision, there does not seem to be objection to the con- tinued deposit of copies. Nearly all national libraries in the world build their collections largely or partly through the operation of a man- datory deposit system. T h e r e are three principal types—legal, voluntary, and copyright. France and Great Britain have legal deposit systems, Switzerland a vol- untary system. In the United States the deposit of copies has always been directly tied to the copyright registration system. Initially there was no thought of the deposit as making a contribution to the national library. Between 1846 and 1859, when the Smithsonian Institution and the Li- brary of Congress received deposit copies of copyrighted works, and following 1865 when the Library of Congress again became a depository, the idea of deposit for the enrichment of the Library had at M A Y 1 9 6 0 221 least equal acceptance with that of de- posit for copyright registration. Since 1909 deposit for the enrichment of the Library has clearly been in the forefront. Besides contributing directly to the development of the collections of the Li- brary, the deposit system made it feasi- ble for the Library to begin its printed- card distribution activities in 1901. T h e broad coverage of American trade, tech- nical, university press, reference, and other books reaching the Library through the deposit system was a prime factor in the establishment of the card program. Deposit has also been a key factor in the production of comprehensive United States bibliographies. T h e r e are, of course, certain groups of materials which the present copyright deposit does not bring in. United States government documents are not copy- rightable under the existing law, nor are phonograph records and certain manu- script materials. Only partial coverage is secured in certain other fields, such as state and municipal documents, foreign works, several kinds of art works, and such works as are written on subsidy or with no thought of profit. T h e Library is, of course, most con- cerned with those works which, because of their timeliness, authoritativeness, or representativeness of current taste, are sure to make a current or future contri- bution to the work of the Library. These works include the majority of the new works and new editions of the United States book, periodicals, music, and map producing industries, and the major products of the motion-picture industry. For the purpose of discussion let us as- sume that there will continue to be a copyright registration system, and that copies available to the Library of Con- gress will be deposited in conjunction with registration. As I have already in- dicated, however, there is much senti- ment that registration should not be compulsory; that is, that copyright should not depend upon registration. It may re- sult, therefore, that some copyrighted works will not be deposited for copy right registration. Certain primary issues emerge which must be settled first. Should there be some system to require the deposit for the Library of Congress of works that are not registered? Should the present inte- grated copyright deposit system, under which deposits for copyright registration include copies for the enrichment of the Library, be continued? It is possible that two systems might be set u p to operate independently of each other, one for copyright registration and the other for the enrichment of the Library. O r the present integrated copyright deposit sys- tem might be supplemented by a legal requirement of deposit in the Library of copies of copyrighted works not regis- tered. Under either a separate system or a supplemental system, deposit for the Library might conceivably be extended to some kinds of works not at present ordinarily copyrighted (such as certain widely used current bibliographies, schol- arly works, and many newspapers), or now excluded from copyright protection (such as sound recordings). One difficulty here is that some Constitutional basis other than copyright, probably interstate commerce, would need to be found if the system were to apply to works not copy- righted. In addition to these basic questions, and those so far suggested, there are others in which librarians have a partic- ular interest. For example: If provision is made for a separate or supplemental system of legal deposit for the enrich- ment of the Library of Congress, what kinds of material should be required to be deposited? Should the Librarian of Congress be authorized to specify the kinds of material by regulation? H o w many copies should be required, and should this number be the same for all kinds of materials (e.g., for books, mo- tion pictures, and art works alike)? (Continued on page 246) 222 C O L L E G E A N D R E S E A R C H L I B R A R I E S lection on the subject; " h o r i z o n t a l " meaning a study of the important p u b - lications in related fields. In this way the bibliographer can not only meet the im- mediate d e m a n d but also prepare mate- rials to some extent f o r future needs. Again, in a specialized research library it is vitally important to keep close con- tact with the patrons and watch where their interest lies and h o w it develops, for this is the only way the bibliographer can meet the challenge, b o t h present and future. Probably every library has f o u n d some time or another that although some books are ignored f o r some time, when researchers want them they have to have them immediately. T h e bibliographer should also be familiar with the con- temporary trends in Japan and k n o w w h o were and are outstanding scholars in the subjects of most m o m e n t to the faculty and the graduate students. T h e focus of b o o k selection by the bibliographer is primarily o n the ma- terials needed lor instructional a n d re- search purposes in Japanese studies, but he will need to consider the interests of the w h o l e university community. For example, if the library is located o n the West Coast, materials on or by the Japa- nese immigrants should be seriously considered. H e will have to watch con- stantly f o r materials to keep some of the collections strong by supplementing with new materials, even if the interest in the collection at the present m o m e n t may not seem entirely to justify selection. For example, if the library has a strong col- lection o n some aspect of Japanese litera- ture, it will be quite logical to add new materials to it, even if there is little cur- rent interest. T h e bibliographer should never forget that the library serves the general library system and must keep materials ready to satisfy the interests of the whole community. Copyright Problems (Continued from page 222) Should the n u m b e r be limited to one in the case of limited editions and very ex- pensive works? Should consideration be given to requiring additional copies for regional libraries, possibly set u p as part of a quasi-federal system to provide se- curity to o u r cultural product as well as to service it? Should a time period be fixed within which deposit must be made; should a penalty be provided for failure to deposit within that time and what should it be? Should deposit in ad- vance of publication b e permitted and en- couraged? T h e r e are other questions, and tenta- tive answers to questions o n the deposit system and on other elements of the copyright registration procedure will un- doubtedly create additional questions. I h o p e I have been able to make clear at least the significant problems which we n o w have under consideration at the Li- brary of Congress; I h o p e also that you will take the o p p o r t u n i t y afforded by this meeting to express your views regarding the desirable content of the deposit pro- visions of a revised copyright law.— Rutherford D. Rogers. 2 4 6 C O L L E G E A N D R E S E A R C H L I B R A R I E S