NLM in ’68: The Landmark Lawsuit That Went All the Way to the Supreme Court

NLM has long been in the business of information innovation, but did you know it played a key role in a legal precedent that would have national impact and result in a new copyright law?

In 1968, photocopying was a fast way to duplicate information. It was also the source of controversy.

And NLM was involved.

That year, a major publisher of medical information filed a petition in the United States Court of Claims against the government, alleging that NLM and the NIH library had infringed on their copyright by photocopying articles from their journals.

The issue on which the case turned would become known as fair use.

Was it fair to publishers if a library provided patrons with free copies of journal articles for purposes of study or research?

Upholding the right of scholars to copy texts: a brief history of NLM’s role

NLM’s antecedent, the Army Medical Library, had begun microfilming articles for patrons in 1937. Around World War II, to assist research and medical care in the Armed Forces and to provide all the information the Allied Forces requested, demand for microfilmed articles rose dramatically.

As historian Wyndham Miles recounts, “as copies of entire journals were filmed, there arose a concern about possible violations of copyright laws, even though copying was necessary.” (p. 452)

copyright symbol: a "C" in a circleSensing a growing controversy, Harold Jones, Library director from 1936 to 1944, drew up a rule to protect the institution: Except when the order was accompanied by written permission from the copyright owner, the Army Medical Library would not reproduce books protected by copyright or entire periodical issues, nor would it reproduce excerpts from periodical issues within six months of their publication date.

When the war was over, demand for film fell off for a while, then began to rise. As Miles explains, “When Joseph McNinch became Director in 1946, he gave no thought at first to the legal questions involved in microfilming and photocopying published material. ‘It was not long,’ he recalled, ‘before I became aware of this most difficult problem. It was brought to a head when it was discovered that we had copied not a few pages but a complete copyrighted book.’” (p. 452)

The thorny issue wasn’t going away, it seemed.

Director McNinch toyed with the idea of arranging formal agreements with publishers, covering photoduplication, but after conferring with experts at the Library of Congress and elsewhere, opted for a so-called “gentlemen’s agreement” among medical publishers.

Still through McNinch’s term (1946-1949) and Frank Rogers’ (beginning in 1949), the amount of copying increased. In parallel, the old copying equipment, used since World War II, became obsolete. Faster copiers making sharper images would be of great help to library staff and patrons, but would they also accelerate the debate over Fair Use?

You say you want a revolution? Post-World War II copying technology and policy

As we look at the photos from the 1950s and hear some of the product names from that period, we might not realize that commercial machines like the Copyflo, one of which NLM rented in 1957 and later purchased, revolutionized photocopying. This machine replicated 32 pages of text a minute from microfilm. Each roll of photocopies would then be cut by hand into pages.

candid view of Dr. Rogers consulting the card catalog

Frank B. Rogers, Library Director (1949-1963)

After the institution was designated a national library with the passage of the 1956 National Library of Medicine Act, Director Rogers thought the time was right for an in-depth examination of interlibrary loan and photoduplication services.

As Wyndham Miles observed, “The Library would no longer lend publications to individuals, only to other libraries. It would not lend volumes of journals, instead it would provide photoprints of articles without charge. It would continue to lend books to other libraries, and the borrowing institution would have to pay only return postage. These new regulations would force readers in other areas to patronize their local medical libraries, leaving NLM to provide publications not obtainable locally; it would encourage the growth of local libraries; it would save wear and tear on volumes of journals; it would retain journals in the Library where they would always be available for the use of other readers and for copying purposes; the cost would be no greater than the cost of maintaining fiscal accounts on purchases of photoprints; it would reduce the expense of the borrowing library.” (p.453)

After considerable discussion among the staff and NLM’s governing Board of Regents, Director Rogers initiated the new policy on September 1, 1957. Its principles remain the blueprint for NLM’s interlibrary loan and copying policies today. But before we jump ahead to 2018, we need to time travel back to 1968 and that lawsuit.

The root of the suit

After the new policy had been in place for a few years, NLM staff member William H. Kurth undertook a sweeping survey of interlibrary loan (ILL) requests. Among other findings, his “data indicated that the ILL operation was successful in meeting a large proportion of loan needs across the country.” (Miles, p. 454) The policy seemed to be serving patrons both in the NLM Reading Room and across the nation efficiently, connecting them with the print resources they needed.

man holds a book under an overhead camera

George Queen operates the mobile camera in the stacks at NLM.

NLM being NLM, though, there was still a push for improvement.

“A major innovation was the development of a moveable camera for use in the stack area of the new building” on the NIH campus (Miles, p. 454). Developed with help from the National Bureau of Standards and other agencies, this little copying cubicle on wheels could be pushed back and forth along an aisle, taking the copier to the books instead of the other way around.

By the time NLM had settled into its new building in 1962, “the book industry was showing increasing concern over the amount of photocopying being done in libraries.” (Miles, p. 456) The American Text Book Publishers Association held a meeting on the issue in New York City, although NLM data showed that only two book publishers owned any of the most heavily photocopied journals on staff member William Kurth’s list.

Subsequently, NLM invited an official with medical journal publisher Williams & Wilkins to visit, to discuss grounds of common interest and the controls the Library had voluntarily implemented to limit photocopying.

The publisher agreed with NLM’s approach but requested a royalty of two cents per page per copy.

Martin M. Cummings, who became NLM Director in 1963, had misgivings.

Although NLM could probably afford to pay the royalty, smaller libraries could not. Also, what if the publisher demanded higher royalties, like five or ten cents a page? No deal was struck.

Wyndham Miles picks up the narrative.

“On February 28, 1968, Williams & Wilkins filed a petition in the United States Court of Claims against the government, alleging that the National Library of Medicine and the library of the National Institutes of Health had infringed on the company’s copyright by photocopying articles from their journals.

The case of Williams & Wilkins v. the United States was tried on September 9, 1970, before Commissioner James F. Davis of the Court. The firm was represented by a lawyer very knowledgeable in the subject, Alan Latman, who had prepared the report on ‘fair use’ for the Copyright Office series of studies toward revision of the copyright law.” (p. 456)

formal portrait photo of Martin Cummings

Martin M. Cummings, NLM Director (1964-1983)

Cummings, NLM chief of acquisitions Scott Adams, and chief of public services Al Berkowitz were among the witnesses for the United States, along with NIH Library Director Seymour Taine. They championed the position that the judicial doctrine of “Fair Use” enabled the libraries to make single copies of articles for research or study purposes, and that this did not infringe on publisher rights.

Commissioner Davis made his report to the Court of Claims February 16, 1972, recommending that the case be decided in favor of the publisher.

On November 27, 1973, the Court of Claims overturned the Commissioners report by the narrow margin of four to three, ruling that the making of a single photocopy of a journal article did not violate copyright laws.

As expected, Williams & Wilkins appealed the verdict to the US Supreme Court, which heard arguments on December 17, 1974. Two months later—and nearly seven years to the day after the lawsuit was originally filed—the Supreme Court split four to four in its decision (thanks to Justice Blackmun’s recusal), affirming the lower court’s judgment without opinion and delivering a narrow victory for NLM and for libraries.

Less than two years later, the Copyright Act of 1976 (Public Law 94-553) was signed into law, codifying fair use and allowing for some types of reproduction by libraries and archives.

By Melanie Modlin, NLM in Focus writer

More information
NLM in ’68, part 1: No Fooling: NLM Officially Became Part of NIH on April 1, 1968

Wyndham D. Miles, A History of the National Library of Medicine: The Nation’s Treasury of Medical Knowledge (Bethesda, Md.: US Dept. of Health and Human Services, Public Health Service, National Institutes of Health, National Library of Medicine, 1982).

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