At several points during this paper, the issue under discussion could be resolved in different ways depending on the goals of the preservation program. For example, if limited to the making of facsimile copies (i.e., microform copies) of old, out-of-print, deteriorated material for preservation purposes only, the program will follow one course and the statutory obstacles will be relatively low. If, on the other hand, the goal is to build an online datafile of current material for distribution to libraries and individual users worldwide there will be another set of considerations and the barriers will be significant.
If the goals are indeed broader, then some mechanism must be in place either to negotiate with publishers individually or to provide for collective administration of royalties. This may require a statutory change. If, on the other hand, the focus is more limited, it may be possible to proceed without a statutory change on those materials that are now in the public domain. As a middle ground, participating libraries may wish to proceed on materials not yet in the public domain, but also not current (e.g., older than ten years) and may, therefore, wish to seek to have the limitation to "facsimile form" removed. Again, this will require either a statutory change or negotiation with individual copyright owners.
The library community also needs to decide about questions of access. Will access to publications be available only to libraries? Only to libraries that already held the title and now find it deteriorating? What about libraries that never held the title but now wish to add it to their collections? What about individual scholars and researchers? The answers to these questions will help to focus the discussion about what should be done next. The more closely the answers are related to goals that are already accepted by the Act--i.e., preservation, not general distribution--the easier it will be to proceed without a statutory amendment. The broader the goal becomes, the more necessary it will be either to compensate copyright owners or to seek a statutory amendment.
Once there is a clear decision about these matters in the preservation community, a discussion should be initiated with other library groups, directed at gaining a consensus about the priority need for a solution to the copyright issues involved in the preservation program. Any changes to the Copyright Act are likely to be difficult to achieve since there are so many players that have a vested interest in the status quo. The library community will need to have a clear view of what is needed and a unified approach to the issue as they enter subsequent discussions with the publishing industry and with members of Congress.
It is clear from the quotation that opened this paper that progress before Congress is unlikely unless the library community and the publishing community are able to reach agreement on the importance of the problem and the appropriateness of the changes to the Act that might be suggested. The Copyright Office is not willing to formulate the solution but it is looking to the interested parties to take the lead to propose solutions for review and possible endorsement. Similarly, several individuals have commented that Congress will not do anything in this area that turns out to be contentious. Regrettably, the library associations also seem to shy away from major proposals, probably because it has taken so long to recover from the battles of the copyright revision effort of the 1970's. Few seem willing to reopen the old questions, preferring instead to live with the equilibrium that now seems to exist, even if it leaves some unanswered questions.
Preservation, however, is an issue that has widespread support, and which might be a good vehicle for exploring a limited sphere of copyright issues. It would probably be useful, therefore, for a preservation-oriented leadership group to follow the approach taken by the National Library of Medicine and convene a small working group of librarians/preservationists and publishers' representatives to discuss the issues and possible solutions. If it is possible through those discussions to come up with some agreement then either the agreement itself might make a statutory change unnecessary or it could lead to a joint legislative proposal.
Finally, at an early stage, the issues involved here should be discussed with staff members of the relevant Congressional Committees and with members of the Copyright Office staff. Support from those two areas will be critical as any proposed legislation proceeds. Moreover, they are in the best position to give advice on how they see the issues, what are the competing considerations, and who should be involved in any further discussions that might take place before a bill is introduced.
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Timestamp: Sunday, 23-Nov-2008 15:20:18 PST
Retrieved: Thursday, 20-Sep-2018 21:05:12 GMT