COPYRIGHT, CONTENTS PAGES, COOPERATION, CONSCIENCE

…necessary ingredients for the effective dissemination of scientific information.

For presentation at the Annual
Symposium of the Library of the
Chemists Club, April 28, 1959,
New York City

By

Eugene Garfield, Editor and Publisher
Current Contents Publications
1122 Spring Garden Street
Philadelphia, 23, Pa.

When I was asked to speak at today's Symposium it was suggested that I cover the problem of copyright as it pertains to the reproduction of tables of contents—and more specifically to the Current Contents services which my firm provides to industry. In this way, I was afforded an opportunity to present my position concerning an editorial which appeared last October in Chemical and Engineering News. For those of you who are not familiar with Current Contents I have brought review copies of a recent issue. It is indeed unfortunate that I cannot refer you to the published pages of C&EN to read the letter which I wrote to the editor in reply to Mr. Murphy's editorial. I think the ACS membership is entitled to hear all the viewpoints on this vital question. However, I am glad to read you this letter now without change. This will, I believe, provide an excellent point of departure for exploring, in detail, the basic points of my talk.

“Does the Reproduction of Contents Pages Violate Copyright?

“In the October 6th C&EN Editor Murphy justly criticizes copy right violation such as promiscuous photoduplication of entire articles. However, reproduction of tables of contents is hot violation of copyright. Rather it is an extension of 'fair use'. Briefly, the doctrine of fair use means that the reproduction of limited portions of a copyrighted work, such as titles or brief quotations, is legal. The main issue in most copyright disputes is: Does said reproduction cause financial loss? As publishers of Current Contents publications we have the cooperation of hundreds of journals who supply, gratis and willingly, advance proofs of contents pages. They fear no loss of circulation and/or advertising. They agree that wide dissemination of contents pages will increase circulation and readership.

“There is a more fundamental issue involved. Does the individual scientist have a right to know what has been published? Is it reasonable to expect that he will personally subscribe to hundreds of journals, each of which may occasionally contain pertinent articles?

“If Dr. Murphy feels that the reproduction of titles decreases the use of journals, what is to be said for Chemical Abstracts which abstracts, i.e., digests 'every new chemical paper published'.

“Dr. Murphy writes: 'There are firms and individuals who want to supply the type of service described (reproductions of tables of contents) with the intent, of course, of clearing sizeable profits.' I can only assume that Dr. Murphy is referring in part to Current Contents. It is true that a number of industrial and academic organizations utilize this service. We hope one day to make a profit-indeed, sizeable profits. We hope that day is not far off. It has certainly not yet arrived.

“Approximately two years ago I wrote to the ACS and suggested that a contents page service be initiated to 'break the time barrier' which exists between the publication of original articles and the appearance of abstracts. The ACS apparently felt that such a service was not needed. I did not agree and subsequently started Current Contents services. Our Pharmaco—Medical Edition covers chemistry and the bio-medical sciences. Through this service, hundreds of non-chemists have been finding greater use for chemical journals. Similarly, chemists working in pharmaceutical and medical research have increased use for biological and medical literature. There can be no doubt of the acceptance and need for this service.

“Last month we announced the forthcoming publication of a Chemical Edition of Current Contents. However, we wish to go on record that we are ready to develop this service for the benefit of scientists through ACS sponsorship on a mutually satisfactory basis. In sponsoring the Chemical Edition of Current Contents, the American Chemical Society would be furthering the primary objective of any scientific society, i.e., the prompt dissemination of technical information. Pending the decision of the ACS concerning this proposal, we are delaying publication of the new Chemical Edition of Current Contents. It is our sincere hope that ACS sponsorship will bring this service to the largest possible audience at the lowest possible cost.”

Since this letter was written the American Chemical Society Committee on Publications has met and considered my proposal. I regret to say that the Board of Directors voted to decline our proposal. I might add that the Executive Secretary, Mr. Alden Emery, wrote that “In order to prevent development of individual conclusions prejudicial to our enterprise (Current Contents), the Board decided that this action should not be published.” While I sincerely appreciate the concern of the Board I am much more concerned that chemists know all the facts and gladly take this opportunity to fill you in on them.

Of course, this particular decision of the Board of Directors of the ACS in no way indicates an official position of the ACS with regard to the question which we are discussing here today. The ACS, unlike dozens of other publishers and societies, does not cooperate with us by providing advance proofs of contents pages. This is unfortunate as we have found that this particular feature of the Current Contents service is the most highly valued •characteristic of the service—at least as far as working chemists are concerned. Not only are scientists interested in knowing what pertinent papers will be appearing in the current issues of journals—they are also very much concerned about knowing that their own published articles will definitely appear. I think you can readily visualize the multitude of reasons why they should be so concerned.

Turning now to the specific question of Copyright, let me draw on a legal opinion which we obtained over a year ago from our attorney, Mr. Arthur H. Seidel. Mr. Seidel is well known in his profession as the author of two valuable publications of the American Law Institute—“What the General Practitioner should know about Patent Law and Practice (1956)” and “What the General Practitioner should know about Trademarks and Copyrights (1957)”. Philadelphia chemists know him for his excellent ACS continuation course on “Patent Law for Chemists”. As a chemist himself, he is eminently qualified to offer an opinion on the problem at hand.

Since the primary issue involved in most copyright disputes is a financial one—the entire question of a particular violation revolves about the basic issue “Does the presumed violation cause the copyright owner financial loss?” In this connection, there has been established the doctrine of “fair use” which has been elaborated in several cases a few of which I will call to your attention for their general inter est.

The doctrine of fair use was defined very well in Thompson vs. Germsback, 87 U.S.P.Q. 238(S.D.N.Y., 1950) as follows:
 

“Succinctly stated, this doctrine permits a writer of scientific, legal, medical and similar books or articles of learning to use even the identical words of earlier books or writings dealing with the same subject matter.”

In Karll vs. Curtis Publishing Co., 51 U.S.P.Q.(E.D.,Wisc.,1941) the court discussed the doctrine of fair use at great length and decided to adopt the criteria that it must look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which use may prejudice the sale, diminish the profits, or supersede the objects of the original work.

Let me state quite frankly that the question of reproducing a contents page is still an unsettled question of law, as there is no case squarely holding that the reproduction of a title page constitutes either infringement or fair use. However, applying the abovementioned criteria of fair use I think you will agree that, if we thought it would be worth the effort, the doctrine of fair use would allow us not only to list the titles of individual articles from journals—but indeed we could summarize the contents of these articles—at least to the extent of a few hundred words. Among criteria for ascertaining infringement, which have been mentioned by the courts, are whether so much has been taken as would sensibly diminish the value of the original and whether the labors of the party entitled to copyright are substantially to an injurious extent appropriated by another. (See Folsom vs. March, 9 Fed. Cas. 343). Please keep in mind that when I use the word summarize I do not mean digesting in the Readers' Digest sense of the word. Let me further add, that Chemical Abstracts does both according to the individual circumstance. In fact, it rightly prides itself in stating that frequently it is unnecessary to read the original work(particularly foreign articles).

I could of course cite many other cases to support the notion that we could summarize each article and stay within the bounds of fair Use. By what form of logic can one then conclude that we cannot do less than this—to wit—to list merely the titles of the articles. To take such a position, we believe, is a rather shaky proposition.

However, consider the more fundamental issue involved—let us assume that publishers do not question the practice of abstracting, that indeed reproduction of contents pages is a fair use, but unlike abstracting articles reproduction of the entire contents page may lead to financial loss. Here we come to the nub of the question, which again for us at Current Contents—is somewhat academic. More than 90% of the publishers agree that Current Contents is of great promotional value to their journals. What are the facts. While we cannot, after such a brief time, make any all—inclusive statements about all of the more than 600 journals covered in our services—we can point to definite instances where Current Contents has stimulated greater use of existing subscriptions or has created the need for new ones. Occasionally there will be an instance when one or two journals will be dropped from a subscription list, but this is really because the journal was never used in the first place. If the editorial in a journal is so unrelated to the interests of an institution or an individual can Current Contents be blamed? The facts are that Current Contents, like many other information services, tends to increase the use of published information—a trend which any publisher should applaud. In one institution they claimed to achieve a 600% increase in the use of the periodical collection. In others, there have been less dramatic increases but they are quite evident. And we can cite dozens of instances where new subscriptions have been placed as a direct result of including those journals in Current Contents.

Certain publishers are finding it difficult to increase circulation. Most make little effort to promote journals regularly. In other cases, they promote only to the obvious market. After all, it is relatively easy to sell your product to the obvious market. Developing new markets is more difficult—but is a real challenge—and the most rewarding one. Let me give a specific example.

In promoting Current Contents we have always stressed that it is an interdisciplinary service. In the Pharmaco—Medical, i.e. Life Sciences Edition we have not artificially separated chemistry from medicine and biology—an almost impossible task. We do group all chemical pages together but could not possibly consider eliminating coverage of chemical journals entirely so as to make it a strictly bio-medical service. We have felt that this interdisciplinary approach is needed for institutions as well as for individual research workers. This was beautifully illustrated recently by one reader, a professor in clinical medicine. Here is a partial list of the journals he ordered as a result of reading one issue of Current Contents—Analytical Chemistry, JACS, J. Organic Chem., Biochem. Biphys. Acta, Annales de Endocrinologie, Bull. Exper. Biol. Med. USSR, and several others. I think this is an excellent case of a potential user of the chemical literature who has been overlooked simply because he does not work in an obviously chemical field of research. Just as it is difficult for us to seek out the clinician who is a potential reader of Current Contents, and they are a small percentage of all clinicians, it is equally challenging to journal publishers to find this untapped market for their publications. And I could cite countless other similar examples.

Putting aside these questions of finances, copyrights, etc.—let me consider the important question of “conscience”. What is the moral obligation of a scientific publisher, especially a scientific society like the ACS, as regards the dissemination of information. Should the ACS be upset that a non-member, non-chemist may find inspiration or stimulation in reading several articles in its journals—even if he is not a subscriber and may never become one? I don't think the answer to the financial difficulties of individual journals is to restrict use to those few who can afford to pay the price of subscriptions. We must of course continue to educate scientists that money spent for journal subscriptions is well invested, but there is a limit even under the most ideal circumstances. Frankly, I believe the National Science Foundation and other government agencies would do more good in disseminating scientific information if they simply made a yearly stipend to each research worker for the purchase of three to five hundred dollars worth of journals and information services. Let each scientist receive coupons redeemable for subscriptions, reprints, etc.—do not permit library allocations to come out of grant overhead alone. Such a yearly subsidization would ultimately cost the NSF less than its present pro grams, would be a boon to faltering journals, and stimulate the use of the great untapped mass of published information. Numerous studies have shown that only immediate accessibility to publications can stimulate the use of information. If after such a subsidy a journal can't find enough subscribers to sustain itself then one must seriously question whether it has a right to exist. Studies have shown that 90% of most manuscripts get published in one journal or another anyhow, so how important can it be that thousands of journals continue that are unable to be self-supporting. I am afraid, however, that until such subsidization is arranged many journals must be supported even though they are continually in the red.

If such a program were continued for a period of three years, perhaps at a cost of $50,000,000 dollars, I think we would find that scientists would have been converted to the belief that at least 5% of a professional man's income must go into scientific information services of one kind or another. Many lawyers spend thousands of dollars annually on a variety of publications. If small groups of scientists got together and applied this criteria they would develop immediately accessible library collections that make those presently available a mockery. I might also add,—that this would focus greater attention on the need for librarians and information specialists in the universities and in industry.

Let us turn now to the final question of cooperation. If indeed it is the moral obligation of publishers and societies to get information into the hands of those who need it—and at the earliest opportunity—then several kinds of cooperation will be needed. As regards Current Contents, we seek and obtain from publishers advance copies of their contents pages. Further, we have been successful in getting publishers to adopt formats which are quite individual and unique, yet provide the reader with the maximum information needed in his use of the contents page. We encourage editors to use complete and unambiguous titles for articles. We also ask them to add brief indicative abstracts or annotations—a one or two sentence elaboration of the title—something that will whet the appetite of the reader and make him want to read the article——or if necessary, not read it. It is also helpful if the author and his affiliation is listed on the contents page as the institution will be known more frequently than the author, especially the new author. Among the many publishers who have adopted some of these suggestions is included a McGraw—Hill journal—Control Engineering—even though this firm feels that use of the contents page is a violation of copyright. It is worth noting that usually the largest, well established journals see a greater danger in reproduction of contents pages than do the others. This is particularly so where advertising is a primary consideration. However, I might mention here another phase of copyright that relates to this question of moral obligation—is a publisher entitled to an unlimited copyright when that same publisher restricts the use of that publication to a so—called “controlled” circulation. If I can't even purchase a publication at the advertised price am I then entitled to obtain a photo copy of an article from a library or individual who can purchase the journal?

This point brings me to the other aspect of cooperation which is vital to this entire discussion, In the editorial by Mr. Murphy he rightfully condemned the promiscuous photocopying of copyrighted journals. I think it could be clearly shown that photocopying entire articles could represent financial loss to a publisher, even though in fact many publishers encourage this practice just as they encourage the distribution of reprints. These publishers feel that the wider use made of their journals when they are published will ultimately lead to increased circulation—and I think they are right. However, this in no way denies the publisher who is ready willing and able to sell a copy of his magazine the right to such sale by wholesale reproductions of articles on photocopy machines. I do not intend to discuss the many ramifications of this problem which have been discussed in numerous published articles by experts more fully qualified than I am. However, it seems to me that there must be a practical solution to this problem. In England they have recognized the need for limited photocopies by virtue of the Fair Copying Declaration which allows for making one personal use photocopy. If one desires a photocopy of an article which appeared many years ago I think he would find, in most cases, that he could not even purchase the journal issue. It is impractical for most publishers to keep large files of back issues. However, this is not the case with current journals. At Current Contents we are trying a plan which we believe can ultimately lead to the kind of cooperation that is needed both by publishers and users.

When a reader of Current Contents spots an article he needs he can write us for a tear sheet of the article in question. Using a coupon for payment and a simple order card he can quickly determine if we have the journal issue available. In most cases we receive as many as three copies of certain journals. The requested article will be torn from the journal and sent out within 24 to 48 hours. If we have exhausted our supply of a particular journal issue we will then immediately order another copy of that journal. In fact, this order may be placed as soon as the previous- order has been filled, in this way, always leaving us with one copy available.

In this way the publisher benefits by the direct sale of his journal. The user benefits from prompt service at a cost far lower in most instances than expensive photocopying. If a user orders a 'sufficient number of articles from an individual journal during the year it becomes quickly obvious that he should enter a subscription—again to the benefit of the publisher. This has indeed occurred in numerous instances.

Ultimately, however, one faces the question of the need to pre pare a photocopy. Perhaps the journal is out of print. Many journals have few or no single issues to spare. A case in point is Nature. Others are the Soviet journals. However, we hope to work out with each publisher a suitable arrangement for making photocopies in which he will receive a royalty, to which he is entitled. I think that a similar arrangement might be worked out with libraries throughout the country, but again only if publishers can cooperate with each other. It is impossible to expect libraries and individuals to deal separately with hundreds of publishers concerning thousands of individual photocopy requests. I believe there should be established an equivalent to ASCAP, the American Society of Composers and Publishers which protects the copyrights of composers. It is not improbable that one of the existing publishers' organizations could take on this function. The central organization could then issue royalty coupons to libraries and these coupons could be affixed to each photocopy prepared by a library, the cost thereof to be paid by the user. I don't think the particular mechanics of such a cooperative plan is vital at the moment. Obviously there is the question of how much each publisher is to receive in royalties. Perhaps this could be simply handled by the use of properly designed forms for ordering photocopies—one copy of said form going to the same center which issues the coupons. With a fairly worked out royalty formula I feel certain that publishers would then encourage the use of photocopying to the benefit of all concerned.

Some of the suggestions I have made here may seem visionary. Some of my comments may seem harsh. However, if we are to preserve our democratic way of disseminating and using scientific information—and meet the challenge of bureaucratic solutions that must inevitably follow if we don't find workable approaches to these problems—then we must be a little visionary and critical of those who would preserve the status quo. We cannot allow self—interest to deter our scientific progress. At the same time we must preserve the incentives which encourage that progress.

We must never forget that our Soviet counterparts do not have to contend with many of the problems we face. This can only aid them in performing research more efficiently. This does not mean that Soviet scientists necessarily have better information services than do our scientists—but I am certain they don't give photocopying a second thought. The Russians violate our international copyrights all the time. It is not sufficient however to get them to agree to paying royalties. What is more important is that we find better means of improving our own utilization of American as well as Soviet research data. We believe Current Contents, and our auxiliary services, is a step in the right direction. Current Contents has already cut down on a lot of useless duplication of effort in industry—we hope this trend will continue in all types of information services. This is but another form of cooperation that can bring our total information per vice network far ahead of our competitors overseas.

I have not discussed many specific aspects of the Current Contents service—how it is used, its effects, etc. I'll be glad to get into this during the discussion period. I hope that this long winded presentation will stimulate some of you—and those who read this paper to urge greater cooperation from editors, publishers, users, and librarians on these vital questions. Thank you.