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Copyright and Preservation–Possible Solutions

A. Negotiate Agreements with Publishers

The most obvious approach is to work within the existing statutory framework and to seek permission from the various copyright owners. The tumultuous years during and immediately following the passage of the new Act were characterized by uncertainty on both sides of the library/publisher copyright debate. But after 12 years of experience with the Act, librarians are used to the way in which it works, and they seem reasonably content with the balance struck by Section 108.189 Similarly, the revolution in photocopying technology has stabilized, and publishers may no longer feel as threatened by basic library copying as they once did. The new threat is electronic dissemination, known as electro-copying. But even in the electronic environment, progress has been made. As commercially available full text retrieval systems have matured, publishers have routinely negotiated royalty mechanisms to compensate copyright owners for the electronic use and distribution of their works. These arrangements have demonstrated that agreement is possible, and that there can actually be more control, not less, over the distribution of a work in an electronic environment. For the print publisher, negotiation of such an agreement can provide a new income stream at no additional cost.

The difficulty with negotiating with publishers is largely one of scale. There are so many publishers that it would be difficult, if not impossible, to locate and negotiate with all of them without a staff dedicated to that activity similar in size to the one at UMI. This problem suggests the need to deal with a group of publishers, through an organization such as the American Association of Publishers (AAP) or a collective such as the Copyright Clearance Center (CCC). However, a group of publishers such as the AAP typically has no authority to bind its members. Moreover, the AAP has generally taken hard-line positions on copyright matters and may not be willing to back away from that stance even to consider preservation issues from a fresh perspective. (The CCC will be discussed, infra, under “collectives”.) Nonetheless, it may be worthwhile to explore the issues with a representative cross-section of publishers from commercial and academic sectors and wide- and special-circulation publishers. If agreement were possible, it could not only open up the publications of those publishers to the preservation program, it could also demonstrate good faith and have precedential or persuasive value when dealing with other publishers.

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

Although fair use is a judicially created rule of reason, it has now been incorporated into the Copyright Act. As a result, it could be modified directly through the legislative process or it could continue to grow through judicial interpretation of the statute.

Since one of the key elements of fair use is the market value of a work, it is reasonable to inquire at what point the market value is sufficiently diminished to permit a generally desirable activity such as preservation copying to go forward. One might think of this approach as being similar to investigating the half-life of a radioactive specimen. The maximum value of a work to its owner occurs, in most cases, shortly after publication. At some point, the value is diminished to only half of what it was then. At another point, it is half again, or only one quarter of its maximum value. Somewhere on this curve, there is likely to be a point at which other socially desirable uses become more acceptable than they were when the value of the work was at its peak. Where might that point be?

There are several ways to approach the question. At the outside, one might argue that the statute incorporates, or has at various times tried to incorporate, this idea by making copyright finite in duration. Thus, it might be suggested that the point occurs at the life of the author plus 50 years. Or it might be suggested that 75 years, 56 years, 28 years, or 14 years, the previous terms of copyright, best represent the concept. But as these figures have changed over time, they seem largely arbitrary, chosen for a variety of reasons, without any actual market analysis.

Some recent studies suggest a more scientific approach to the issue. According to a study conducted at the American Bookseller Association convention in 1987 and reported in Publishers Weekly190, most books published in the United States go out of print in about three years.191Presumably, the implication of this fact is that ongoing sales of the work have diminished to the point where it is no longer economically viable for the publisher to keep the work in print. Even more graphic is that when asked about the “typical” pattern of sales for a book with a 2.5-year life cycle, publishers reported that 91.14 percent of all sales occur in the first year.192

Similarly, public library use studies suggest that with the exception of a relatively small number of classic titles, the circulation of most new popular books diminishes each year.193 Interlibrary loan studies are similar, with most of the requests occurring during the first few years after publication, but with a somewhat higher level of residual interest. According to a study published in 1979, about half (48.6%) of all interlibrary photocopy requests are for articles published within the last five years and 69.5% are for articles less than ten years old.194

Citation studies reveal similar patterns. Even in law, where precedent is vital, citation of decisions decreases substantially with time. According to a citation study done in 1976 by Posner and Landes, the median age of precedent cited by the Supreme Court was 5.4 years and by the U.S. Courts of Appeals was 4.3 years. Decisions of the U.S. Supreme Court had a much longer half-life than others at about 9.8 years, although the age of cited cases varied somewhat with the legal issue involved. The half-life of citations in scholarly journals is somewhat shorter than citations in judicial opinions. According to at least one study of the literature, the half-life appears to be about 5.5 years in economic and sociological literature and 4 years in physics.195

All of this suggests that the use of most works drops off significantly after about five years. Most book sales occur during the first year after publication; most uses of journal literature occur within the first five years. Even if a substantially longer period were adopted–perhaps as much as ten years–to avoid compromising the rights of the copyright owner, it would still seem reasonable then to permit certain preservation-oriented copying beyond the limits of section 108 (b) and (c) under fair use. Under Seltzer’s formulation of fair use, such copying could easily be seen as being “necessary for the furtherance of knowledge, literature, and the arts” and not depriving the creator of the work of an appropriately expected economic reward.196 Similarly, in Latman’s analysis,197 after that period of time has passed, the reasonable copyright owner has little expectation of further economic reward and would be likely to consent to limited preservation copying to keep his or her book on the shelves of libraries.

C. Amend Section 108 to Permit Expanded Preservation Copying

One way to deal with the uncertainties in the Act is to seek an amendment to Section 108 to clarify the aspects of the law that now appear to constrain preservation.

Based on the issues identified in this paper, such an amendment might eliminate the requirement that the copying of published works be for replacement purposes only. It might also delete the need to check with the publisher. Finally, it might clarify that preservation copies could be distributed, at least to other libraries in like circumstances, and it might at least be silent on the formats into which the materials could be copied, thus permitting by implication copying into electronic formats.

Some years ago, Dr. Martin Cummings proposed such an amendment to the Register of Copyright:

“The right [of] reproduction under this section applies to a copy or phonorecord of a published work duplicated in facsimile form, in the same or in a different medium, for the purpose of archival preservation.”198

At the time, the Register rejected this idea, but urged the library community to pursue the idea with other groups, including the user, author and publishing communities “with a view to developing a common legislative position”.199 The Register was worried about the use of the phrase “in the same or in a different medium” after the reference to “facsimile form” since the more expansive clause was not used elsewhere in the Act and could be confusing. He was also worried about the potential for using such copying to create a system for “mass facsimile document storage” and “electronic transmission, and display and printout at multiple remote cites [sic].”200 He noted that “facsimile form” was used specifically to exclude the reproduction of a work in machine-readable form.

The author of this paper suggests the following language as a basis for discussion among the communities mentioned in the Register’s Report:

(b) The rights of reproduction and distribution under this section apply to a copy or phonorecord of an unpublished work duplicated in any medium now known or later developed solely for the purpose of preservation orsecurity, or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if the copy or phonorecord reproduced is currently in the collection of the library or archives.

(c) The rights of reproduction and distribution under this section apply to a copy or phonorecord of a published work duplicated in any medium now known or later developed solely for the purpose of replacement or preservation of a copy or phonorecord that is damaged, deteriorating, lost, or stolen.

This language seems to meet the goals identified above and would permit the preservation program to go forward using all available formats. It should be noted, however, that by its own terms (“a copy”), and by virtue of the fact that it would be part of Section 108, the proposed section would still limit preservation copying to single copies.

D. Collective Licensing

A license agreement can provide certainty by giving permission to copy in return for the payment of a fee. If the license covers a large number of publishers, it can also help to keep the transaction costs for individual titles to a minimum. Such a license agreement could be either a voluntary agreement between the parties or a compulsory arrangement required under law. A compulsory license would provide great certainty, but might also create a record-keeping burden. A voluntary agreement can demonstrate good faith but only binds the parties. Since some publishers might elect not to participate, the voluntary license carries potentially higher transaction costs for the negotiation of many separate agreements. A voluntary agreement would also be unlikely to solve the problem for publishers no longer in business.

1. Voluntary Licenses

Voluntary license agreements could be negotiated with individual publishers, as discussed earlier, or with a collective reproducing rights organization such as the Copyright Clearance Center (CCC).

The Copyright Clearance Center was created after the passage of the 1976 Act as an organization to represent publishers and provide a centralized mechanism for the collection and payment of royalties. Beginning with a relatively small list of publishers and titles, the Copyright Clearance Center today represents over 6,300 publishers worldwide, covering some 1.1 million published titles.

The initial focus of the Copyright Clearance Center was on corporate users, and both collections and payments were based on individual copying transactions.201 More recently, however, the Copyright Clearance Center has developed a program for blanket licensing in the corporate sector, and it has begun to explore the development of similar programs for academic institutions. Such programs are typically based on a sampling of actual photocopying during a specified period of time. As a result, they avoid the necessity of keeping detailed records of all copying throughout the year. A two-year pilot study now under way at Columbia University, Northeastern University, and Stanford University will collect similar information about the amount and kind of copying done on those campuses. At the conclusion of the study, a recommendation will be made for a blanket license to cover university copying. Some institutions participating in the brittle books program may come under the protection of such agreements. It is important to keep in mind, however, that the CCC cannot license all university copying; it can only license copying for those publishers that participate in their programs.202

No license is needed for copying permitted under the statute. However, wherever the preservation program might exceed those limits, participating institutions might find it appropriate to negotiate a license agreement with the Copyright Clearance Center, at least for those publishers which the CCC has authority to represent. Most such agreements are separately negotiated based on the type of industry (profit-making vs. non-profit), the amount of copying, etc. But as with the agreements UMI has reached, the amount of the royalties tends to be based on the demands and needs of individual publishers. As a result, it is difficult to speculate precisely about what kind of agreement might be reached. Nonetheless, it is a mechanism worth exploring since it could provide a great deal of certainty without much administrative cost.

The CCC has concentrated its work to date on traditional photocopying; it is just beginning to explore the implications of electronic dissemination. The CCC has established a task force that is looking into a program to license scanning and reproducing materials in electronic format for distribution within a corporation, much as the National Library of Medicine has begun its programs wholly inside the library. The CCC’s investigations do not include, however, resale of the documents or wider distribution beyond the individual company. For now, at least, that type of electronic copying and distribution will still have to be negotiated individually with individual publishers.

2. Compulsory Licenses203

Compulsory licenses have been used204 historically to provide a mechanism for compensation to creators in situations where control of copies or control over the use of a particular work is difficult.205 Many commentators have suggested that the electronic environment is exactly the type of situation where control over a work can be lost since such works can easily be copied to disk or paper or copied from one datafile to another.206 However, it now seems that at least the first generation electronic copy can be easily controlled if the supplier is acting in good faith. The experience with full-text information retrieval systems such as DIALOG and NEXIS demonstrates that the computer itself can keep track of the use of documents and provide the necessary data to pay royalties to the copyright owner. Nonetheless, a compulsory license might be desirable for the brittle books program because it would draw in all publishers and provide the library community with maximum certainty.

Essentially, a compulsory license grants a statutory blanket permission to use a particular kind of work in a way that would otherwise violate one of the exclusive rights of the creator in return for the payment of a single fee to a central agency. The royalties thus collected form a pool of funds from which compensation is provided to creators participating in the system. In the preservation context, such a license could authorize the copying of complete protected works into facsimile or electronic formats in return for the payment of a fixed fee. Libraries would then no longer have to worry about whether or not a work was still protected; they would not have to locate the publisher and seek permission; they would not have to pay individual royalties or worry about the copyright owner who comes out of the woodwork later to make trouble.

The different compulsory licenses that now exist provide different bases for the collection of royalties and suggest different models for compensation. For cable television, rates are established as a percentage of the gross receipts of the company; for jukeboxes, an annual fee is paid for each machine; for making and distributing phonorecords, a fee for each disk is levied for each work on the disk; and for public broadcasting, fees are collected for each performance of a covered work.207 The fees for cable television and jukebox royalties are collected by the Register of Copyrights and distributed by the Copyright Royalty Tribunal. The Copyright Royalty Tribunal also sets or reviews the rates for cable television, for phonorecords and coin-operated phonorecord players, and for non-commercial broadcasting.

3. The Foreign Experience

Several foreign countries208 have experimented with licenses administered through organizations similar to the Copyright Clearance Center (CCC), known as Reproducing Rights Organizations (RRO’s). Those RRO’s meet regularly in an organization known as the International Federation of Reproduction Rights Organizations.

By and large, RRO’s are not neutral third parties. They are made up either of individual publishers or of groups of publishers and/or authors.209Although the CCC began its work in the United States by seeking royalties primarily from the commercial sector, in many of the European countries collecting societies have begun in the educational sector. This is true, for example, in Great Britain, Australia, and Norway. Many of these collectives are voluntary organizations operated by copyright owners to simplify the negotiation of license agreements and to provide a convenient mechanism for the collection of royalties. Some, such as the CCC, and the CLA in Great Britain, were created in response to a legislative or study commission suggestion. Others, such as those in the Nordic countries, operate under a statute providing for a system of collective license agreements.210

The mechanisms established by each organization for the collection and payment of royalties differ from one country to another, although in most cases, the basis of the charge is per page copied, rather than an annual blanket license. The Copyright Clearance Center has tried several different approaches, but in each of them the individual publisher determines its own per page rate of compensation. By contrast, in many other countries there is an agreed-upon fixed rate for all publishers.211 In Finland, licenses provide for a lump sum, rather than a per page, payment. In most cases, distribution of royalties is based on a sampling of actual copies made. Some organizations, such as the CCC, have tried to base payments on actual copies, but the record-keeping burden is high and sampling techniques have been found to be less problematic.

4. Oversight of Collectives

The downside of collectives is that they inevitably gain substantial economic power over information users. As a result, most countries have found it desirable to have some form of oversight. Such oversight provides a means of controlling the potential monopolistic power of the organization as well as a means of resolving disputes about the amount of royalties or the types of licensing arrangements that can be negotiated.

France212 now requires authors’ societies to notify the Minister of Culture of proposed changes in rules for the collection and distribution of royalties. In addition, a levy on blank tapes is set by a broad-based committee that includes consumers. In Switzerland, an organization seeking to collect copyright royalties must submit an application to the Federal Department of Justice and Police. Thereafter, a subdivision of the department, known as the Bureau of Intellectual Property, supervises the activities of the society and an Arbitral Commission oversees and approves the rate structure. Germany licenses collecting societies under the German Patent Office. Collecting societies and users’ organizations negotiate and enter into contracts with each other subject to arbitration if there is a dispute about the reasonableness of the fees or the willingness of another party to negotiate. A new law in Great Britain has created an expanded copyright tribunal that has jurisdiction over licensing disputes. With regard to photocopying licenses, the tribunal is specifically instructed to consider three factors: (a) to what extent published editions of the work are available; (b) the use to which photocopies will be put; and (c) the proportion of the work that will be photocopied under the license.213 In the United States, the Copyright Royalty Tribunal administers some royalties (cable TV, record production, and jukeboxes) and has the power to take action when the parties cannot agree.

5. Collective Administration for Preservation Copying

Some form of collective agreement for the payment of copyright royalties can give the library community protection against future litigation. A voluntary agreement negotiated with the Copyright Clearance Center (CCC) should provide protection from at least those publishers for whom the CCC is authorized to act. Such an agreement would require no legislative action and could proceed immediately. The role of the CCC could be strengthened, however, if it was given more explicit statutory authority to act on behalf of a group of publishers much as is done for the music industry. Going further, a compulsory license for preservation copying would give libraries blanket permission to go forward with designated activities subject to the payment of a statutory royalty fee to the appropriate tribunal.

A first try at a compulsory license section might be provided by using different sections of the current Act as models:

    PROPOSED Section 119.  Compulsory license for the preservation of

    deteriorating works.

    In the case of literary works, musical works, dramatic works,

    pantomimes and choreographic works, pictorial or graphic works,

    motion pictures and other audio-visual works, reproduced on a

    deteriorating medium214, such as paper or film, the

    exclusive rights provided by clauses (1), (3), and (5) of section

    106, to make, distribute, and display publicly such works, are

    subject to compulsory licensing under the conditions specified by

    this section.

        (a) Availability and Scope of Compulsory License.

            (1) Any library or archive meeting the requirements of

            Section 108(a) which is the lawful owner of a published or

            unpublished literary work, musical work, dramatic work,

            pantomime or choreographic work, pictorial or graphic work,

            motion picture, or other audio-visual work reproduced on a

            deteriorating medium and fixed on that medium more than ten

            years previously, may obtain a compulsory license for the

            reproduction of the work in any format and for the

            distribution and display of that work to other libraries and

            to individual users, provided that the library has no notice

            that the copy would be used for any purpose other than

            private study, scholarship or research.

            (2) The compulsory license obtained by a library includes

            the privilege of making and distributing a copy of the work

            in any form or displaying the work publicly, but it does not

            include the making of derivative products or permitting a

            general right of resale other than as provided above.  Such

            copies will not themselves be granted protection as a

            derivative work or a compilation, except with the express

            consent of the copyright owner.

            (3) The library may obtain a compulsory license by filing the

            application with the Register of Copyrights and paying the

            royalties provided by subsection (b).

        (b) Royalty Payable Under Compulsory License.--

            (1) The royalty under a compulsory license shall be payable

            for every copy made and distributed in accordance with the

            license, but not for copies merely displayed at another

            library or displayed to an individual user for private

            study, scholarship, or research.  For this purpose, a copy

            is considered "distributed" when a subsequent copy is made

            in any tangible form, whether copied to paper, downloaded to

            computer disk, or transferred to any other medium from which

            it can be perceived, either directly or with the aid of a

            machine or device.

            (2) With respect to each work copied and distributed, the

            royalty shall be 0.1 cents per page.

            (3) A library that has obtained a compulsory license and

            made and distributed copies thereunder shall, on an annual

            basis, deposit a statement of account with the Register of

            Copyright, in accordance with requirements that the Register

            shall, after consultation with the Copyright Royalty

            Tribunal, prescribe. That statement of account shall cover

            the 12 months next preceding, and shall specify the number

            of copies made and distributed and such other data as the

            Register of Copyrights may, after consultation with the

            Copyright Royalty Tribunal, require.  The regulations

            covering the annual statement of account shall prescribe the

            form, content, and manner of certification with respect to

            the number of copies made and distributed.

        (c) Distribution of Royalties.--

            (1) To be entitled to receive royalties under a compulsory

            license, the copyright owner must be identified in the

            registration or other public records of the Copyright

            Office. The owner is entitled to royalties for copies made

            and distributed after being so identified, but is not

            entitled to recover for any copy previously made and


            (2) The Register of Copyright shall receive all fees

            deposited under this section and, after deducting the

            reasonable costs incurred by the Copyright Office under this

            section, shall deposit the balance in the Treasury of the

            United States, in such manner as the Secretary of the

            Treasury directs.  All funds held by the Secretary of the

            Treasury shall be invested in interest- bearing United

            States securities for later distribution with interest by

            the Copyright Royalty Tribunal as provided by this title.

            The Register shall submit to the Copyright Royalty Tribunal

            on an annual basis, a detailed statement of account covering

            all fees received for the relevant period provided by

            subsection (c) (3).

            (3) During the month of January in each year, every person

            claiming to be entitled to compulsory license fees under

            this section for copies made and distributed during the

            preceding twelve-month period shall file a claim with the

            Copyright Royalty Tribunal, in accordance with requirements

            that the Tribunal shall prescribe by regulation.  Such claim

            shall include an agreement to accept as final, except as

            provided in section 810 of this title, the determination of

            the Copyright Royalty Tribunal in any controversy concerning

            the distribution of royalty fees deposited under this

            section to which the claimant is a party. Notwithstanding

            any provisions of the antitrust laws, for purposes of this

            subsection any claimants may agree among themselves as to

            the proportionate division of compulsory licensing fees

            among them, may lump their claims together and file them

            jointly or as a single claim, or may designate a common

            agent to receive payment on their behalf.

            (4) After the first day of July of each year, the Copyright

            Royalty Tribunal shall determine whether there exists a

            controversy concerning the distribution of royalty fees

            deposited under this section.  If the Tribunal determines

            that no such controversy exists, it shall, after deducting

            its reasonable administrative costs under this section,

            distribute  such fees to the copyright owners entitled, or

            to their designated agents.  If it finds that such a

            controversy exists, it shall, pursuant to chapter 8 of this

            title, conduct a proceeding to determine the distribution of

            royalty fees.

            (5) The fees to be distributed shall be divided as follows:

                (A) to every copyright owner not affiliated with a

                reproducing rights organization, the pro rata share of

                the fees to be distributed to which such copyright owner

                proves entitlement.

                (B) to the reproducing rights organizations, the

                remainder of the fees to be distributed in such pro rata

                shares as they shall by agreement stipulate among

                themselves, or, if they fail to agree, the pro rata

                share to which such organizations prove entitlement.

                (C) during the pendency of any proceeding under this

                section, the Copyright Royalty Tribunal shall withhold

                from distribution an amount sufficient to satisfy all

                claims with respect to which a controversy exists, but

                shall have discretion to proceed to distribute any

                amounts that are not in controversy.

            (6) The Copyright Royalty Tribunal shall promulgate

            regulations under which persons who can reasonably be

            expected to have claims may, without expense to or

            harassment of the libraries, obtain such information with

            respect to copies made and distributed as may be reasonably

            necessary to determine, by sampling procedures or otherwise,

            the proportion of copying from the works of different

            copyright owners.  Any person who alleges that he or she has

            been denied the access permitted under the regulations

            prescribed by the Copyright Royalty Tribunal may bring an

            action in the United States District Court for the District

            of Columbia for the cancellation of the compulsory license

            and the court shall have the power to declare the compulsory

            license thereof invalid from the date of issue thereof.

        (d) Definition.--

            For purposes of this section a "reproducing rights

            organization" is an association or corporation that licenses

            the making of copies on behalf of copyright owners such as

            the Copyright Clearance Center.

A few comments on this proposal seem necessary. First, it should be noted that under this proposal, the royalty is to be paid on all copies made and distributed under the license, not just those still under copyright. The purpose of this suggestion is for ease of administration and to make it unnecessary to make a determination about copyright status each time a work is distributed. This could have come out another way, but the burden of making copyright determinations for each transaction would be significant. Although such a change would reduce the number of royalty payments, the amount per page would then have to be higher to generate an appropriate amount of revenue for subsequent claimants.

The suggestion of 0.1 cents per page as a royalty payment is wholly arbitrary. It is suggested based on the royalties noted above for foreign jurisdictions which amount to an average of about 2 cents per page215 for protected works. The lower amount paid on all copies seems reasonable, to generate a similar amount of revenue.

Like the existing law, this proposal strikes a middle ground between compulsory and voluntary licensing. The compulsory license is created, but administration of royalties is largely left to one or more voluntary organizations like the Copyright Clearance Center.

E. Set Up Internal Royalty Payment Fund

The reaction of some librarians to the proposals for a statutory amendment, such as the amendment to Section 108 or the creation of a compulsory license, has been negative. They are aware of the difficulty there would be in carrying such a proposal through Congress. It has been suggested, for example, that any such proposal would have to come to Congress with the joint support of both the publishing and library communities. While such a bipartisan approach is a possibility, the past history of copyright negotiations suggests that agreement will not be easy. Moreover, there is also a sense it may still be too soon to reopen the copyright discussion, that doing so will simply reopen the wounds from the copyright revision battles of the 1970’s. Thus, there is significant appeal to the idea of finding a means to allow the preservation program to go forward without a statutory change.

Without any statutory amendment, cooperating libraries could follow some of the ideas set out above. They could, for example, negotiate with publishers where possible, but in any event, assess themselves a specific amount of money to set aside for the potential payment of royalties. Again, the amount of money is likely to be somewhat arbitrary, but the ultimate goal would be to create a pool of funds from which the libraries could pay any legitimate claimants the royalties to which they are due. The fund should be large enough to cover attorney’s fees and any litigation expenses that might also be necessary. The actual amount set aside might be 1 cent per page or a dollar per volume, indexed to inflation, and it might vary with the activity– more for copies distributed, less for making the preservation master.

It must be stressed that this idea is not the equivalent of the compulsory license without the statute. Most importantly, unlike both statutory amendments suggested here, it would give libraries no greater rights than already exist under the statute. Both proposed amendments have tried to legalize the conversion of materials into electronic formats. That idea would not be accommodated by this proposal. Moreover, the compulsory license proposal accommodates newer materials by allowing a limited copying and distribution privilege for materials at least ten years old. Without a statutory amendment, such copying would continue to be problematic.

This proposal to create a royalty payment fund would create some level of financial security by establishing a pool of funds that could be used to pay legitimate claimants and hire legal counsel should that become necessary. However, it will also increase the transaction costs since there will be a need to negotiate with individual claimants and make decisions about how much compensation they should be given for the use of their work. In the end, of course, if the claimants are not satisfied, they could still bring legal action. Thus, although this route may seem easier at the outset because it avoids the necessity of seeking a Congressional amendment, in the long run it may actually create more problems and take more time.

F. Create Quasi-Governmental Corporation

In addition to the foregoing ideas, consideration should also be given to creating a quasi-governmental corporation that would provide a financial base for the preservation infrastructure and would create a permanent organization for carrying out the preservation agenda. Such an organization could be modeled on the Corporation for Public Broadcasting and could operate in the public interest.

There was a discussion about a similar organization for the ill-fated National Periodicals Center (NCP) in 1979. Interestingly, the goal of that earlier effort was similar to the long-term goal of the Commission. The goal of the NPC, as articulated in the draft bill, was:

to serve as a national periodical resource by contributing to the preservation of periodical materials and by providing access to a comprehensive collection of periodical literature to public and private libraries throughout the United States.216

The Commission has stated its “ultimate vision” as:

the existence of a collective knowledge base, in digitized format, from which individual institutions and individual scholars can obtain a variety of formats to serve their scholarly objectives and programs. Initially, this “national collection” could take the form of a centralized depository of microfilms with access through on-line bibliographic services and efficient twenty-four hour delivery mechanisms with the expectation that storage, access, and service enhancements will evolve with the increasing use of technology by scholars and expanded availability of network capabilities to the research community.217

The 1979 draft bill would have authorized the creation of a Corporation and established its governance structure. It was to be a tax-exempt corporation with a director and a 15-person Board. Its base budget from federal appropriations was to be set at $750,000, but it would have had the authority to obtain grants and make contracts with individuals and with private, state and federal agencies, organizations and institutions.

Unfortunately, the National Periodicals Center foundered largely because of a fear from the publishing industry that it would become a large central library on which other libraries would rely, causing the cancellation of large numbers of subscriptions to current periodical literature. In that sense, while the proposal for the NPC was a good one, it failed to deal with the legitimate concerns of publishers and the need to provide an adequate mechanism to assure the payment of appropriate royalties. There was language in the bill that suggested the Corporation should take these concerns into account but no mechanism was created for doing so. It may be that a quasi-governmental corporation focused on the preservation of non-current materials with a clear mechanism for the payment of royalties similar to that proposed under the compulsory license section, supra, would have a better chance of success.

The success of a proposal such as this will depend on it having support from both the library and the publishing communities. The publishing community may be receptive to the idea if it (1) does not undermine the current subscription base, and (2) creates a clear mechanism for the payment of appropriate royalties.

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