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Copyright and Preservation: A Serious Problem in Need of a Thoughtful Solution1

by Robert L. Oakley2
September 1990

Copyright 1990 by Robert L. Oakley. Copying without fee is permitted provided that copies are not made or distributed for direct commercial advantage and credit to the source is given. Abstracting with credit is permitted. To copy otherwise, or to republish, requires a fee and specific permission.

“The Copyright Office is not prepared to support a broad new privilege allowing libraries largely unrestrained preservation copying rights with respect to published works, and permitting storage in machine-readable, computer-accessed systems….The Office…recognizes that libraries should be able to employ new preservation techniques, provided adequate copyright controls are legislated, both with respect to the preservation copying and information supplying functions of libraries. We recommend a thorough review of these issues by the library, user, author, and publishing communities with a view to developing a common legislative position.”3


I.  Background

    A.  The Cause of the Problem

    B.  The Magnitude of the Problem

    C.  The Commission on Preservation and Access

II. The U.S.Copyright Scheme

A.  Is the Work Protected?

        1.  Published Works

        2.  Works Published Abroad

        3.  Unpublished Works

        4.  Government Publications

B.  How Long Does (Did) Protection Last?

C.  Other Formalities

D.  Summary--What is Protected and What is in the Public Domain?

E.  Determining the Copyright Status of a Work

F.  The Rights of the Copyright Owner

        1.  The Making of Copies

        2.  The Preparation of Derivative Works

        3.  The Distribution of Copies by Sale, or Transfer of

            Ownership, or by Rental Lease or Lending

        4.  The Public Performance or Display of a Protected Work

G.  Limitations on the Rights of Copyright Owners

        1.  Fair Use, Section 107

        2.  The Library Exemptions--Section 108

        3.  Compulsory and Voluntary Licenses

        4.  Software

III. Reprise--Applying the Act to the Brittle Books Preservation Program

    A.  Safe Copying--Materials in the Public Domain

    B.  Protected Works--The First Copy

    C.  Protected Works--Multiple Copies for Other Libraries, for

        Sale, or for Conversion and Distribution in Digital Formats

        1.  Copies for Other Libraries

        2.  Converting the Material into Electronic Format

        3.  Distribution of Copies Electronically

IV. What Have Other Organizations Done About Copyright?

    A.  Library of Congress

    B.  Research Libraries Group

    C.  National Library of Medicine

    D.  University Microfilms

V. A Review of Several Possible Solutions

    A.  Negotiate Agreements with Publishers

    B.  Reliance on Fair Use: Market Value of Older Works

    C.  Amend Section 108 to Permit Expanded Preservation Copying

    D.  Collective Licensing

        1.  Voluntary Licenses

        2.  Compulsory Licenses

        3.  The Foreign Experience

        4.  Oversight of Collectives

        5.  Collective Administration for Preservation Copying

    E.  Set Up Internal Royalty Payment Fund

    F.  Create Quasi-Governmental Corporation

VI. Legislative or Other Follow-Up Action

    A.  Decisions to Be Made by the Commission

    B.  Discussion and Agreement among Library Groups

    C.  Discussion with the Publishing Community

    D.  Discussion with Congressional Staff and the Copyright Office



Published by
The Commission on Preservation and Access
1785 Massachusetts Avenue, NW, Suite 313
Washington, DC 20036September 1990

Available from the publisher for $15.00 (prepayment via check in US funds).

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