Copyright and Preservation

IV. WHAT HAVE OTHER ORGANIZATIONS DONE ABOUT COPYRIGHT?


A. Library of Congress

The Library of Congress has several programs under way for the conversion of materials from one format to another. The author discussed with library staff their microfilm-based preservation project and the American Memory Project.

The microfilm preservation project has similar objectives to those of the cooperative brittle books program. It began in 1969, and identifies materials in the collection that have deteriorated to the point where they need to be filmed or otherwise preserved in order to keep them in service. In general, when the book can no longer be made serviceable through rebinding, it is a candidate for filming. Once the materials are identified and prepared for preservation filming, they are sent to the library's photoduplication department which produces the camera negative and a use copy for the collection. Between 1968 and 1989, the library filmed some 128 million pages, and it is currently filming about 6 million pages per year.

Much of the material copied under this program was published before 1915, but some is more recent. Nonetheless, since all materials are being filmed for the purpose of replacing deteriorated items in the collection, the library's activities come within the copying permitted under Section 108 of the Act. The only relatively current materials being filmed are those in the public domain.

When the microfilming project began, the library endeavored to conduct an exhaustive search of the records of the Copyright Office and to seek permission of the copyright owner wherever they could identify one. The library found that effort to be seriously problematic, however, particularly with respect to serial publications. They found--in reality--all the same problems that the brittle books program has been concerned about in theory. Checking the records was very time consuming and far from reliable. Serials change title and each of those titles needs to be checked. Serials change ownership, and as noted above, there is no requirement that a change of ownership needs to be filed with the Copyright Office. Individual issues of serials may be separately copyrighted and permission needs to be granted for each of them. Finally, individual authors may retain the rights to individual articles within a journal. As a result of these problems, the Library of Congress stopped seeking permissions about eight years ago. On the advice of counsel, they now rely on Section 108 for their copying under this program.179

The American Memory Project has begun to capture in videodisc or CD-ROM format complete archives documenting American history and culture. In the future, this program is expected to evolve into an online service. The first prototype collections consist of photographs and political cartoons. They will soon expand to include European folk music recorded in California in the 1930's, sound recordings from the "Nation's Forum" of political speeches and orations, life history manuscripts created in a WPA Writers Project, very early motion picture copyright deposits, African-American pamphlets from the 1860's to 1920, and California local histories, among other collections.

The American Memory prototype collections are all images, consisting of some 25,000 photographs and 530 editorial cartoons, most of which are in the public domain. Where the material is protected by copyright, the Library of Congress identified the copyright owner and received permission to load the item into the datafile. When they could not get permission, they did not use the item. It should be noted that at this preliminary stage, the Library of Congress sought and was given only very limited permission for the use of the material in a demonstration project and for the development of the prototype. The explicit agreement was that when the system becomes permanent, a further long-term agreement would be negotiated.

In an approach now under discussion at the library, the next phase of the American Memory Project will continue the library's traditional practice of seeking permission from the apparent owners of copyrighted works, whenever feasible. Some of these works are sound recordings. Sound recordings were not copyrightable under the Federal Copyright Act until 1972 and are not protected, although the underlying work, which might have been published in print form, might be. The library proposes to seek permission for the use of folk music that seems "likely" to specialists to have been protected or for which copyright records show registrations and/or renewals. To avoid a potentially large administrative burden, the library is "disinclined" to seek individual permissions for the speeches since many of them were by Federal officials and could not be copyrighted and there seems little likelihood that the heirs of those who were not public officials would have renewed the copyright and would now object to the inclusion of a speech in this project.

Both of these new American Memory programs will be converted to electronic form from existing compilations. Since a compilation might be copyrighted, even where the original work was not, the library will seek permission from the current owners of the compilation.180

B. Research Libraries Group181

The Research Libraries Group (RLG) has coordinated several preservation projects over the last few years. It has received over $6 million to fund cooperative projects from the National Endowment for the Humanities, the Andrew W. Mellon Foundation, and other granting agencies. Through those projects, at least twenty different institutions have received support for their preservation efforts. In the first cooperative project, finished in 1987, 30,000 volumes were copied. In the second project, about 15,000 more volumes were copied. Two projects under way now will result in an additional 52,000 volumes being filmed. Beginning in May 1990 a program for the preservation of some archival collections will begin.

The RLG projects are all film oriented. For each work filmed three copies are made. One is the master and is deposited in a vault, to be used only in the event that no other copy is available. The second is a duplicate of the first and is kept at the library for purposes of making additional copies. The third is a use copy and is available in the library for general research and use.

For RLG-coordinated projects, RLG has developed some copyright guidelines but, in the end, it is up to each individual institution to decide what it is going to do. The RLG guidelines advise libraries that they should not copy publications published after 1915 unless they have first ascertained that the material is either in the public domain or they have acquired permission to make the copy. In addition, libraries are advised not to copy for other libraries or individuals unless (1) the material is in the public domain, or (2) the other library indicates that it has complied with the requirements of the Act (either investigated or obtained permission), or (3) the copy is for an individual and compliance under the interlibrary loan provisions of the Act is indicated appropriately.

In practice, in individual libraries, copying under the preservation program is merged internally with other copying projects, and libraries usually rely on guidance (or the lack thereof) from their own counsel. In most cases, for interlibrary borrowing for a user, the standard 108 certification is required. If copying is requested from one library to another for preservation or collection purposes, the copying is likely to be made "copyright permitting".

C. National Library of Medicine

The National Library of Medicine (NLM) began a major preservation project in 1986. Although it hopes to convert materials to electronic form eventually, it has begun its work by converting deteriorated materials to film. It made that decision both for reasons of economics and because more is known about film as a preservation medium.

Since NLM began its project, it has copied 23,000 volumes. According to NLM's National Preservation Plan,182 it expects to copy 35,000 pages and 100,000 volumes in a very short period of time. NLM expects to make copies of these films available to other libraries which need them for preservation purposes. Whether or not they will make them available to libraries that never had the title before will turn, in some measure, on the copyright implications of such a decision.

The National Library of Medicine reports that the vast majority of materials copied so far are in the public domain because they were published before 1914. Those which are not in the public domain have been copied under the preservation provisions of section 108(c), as discussed supra. Before filming, NLM tries to determine whether someone else has already filmed the work. If such a film already exists and it meets NLM technical specifications, NLM will not copy it again but will instead purchase it from that source. Since U.S. micropublishers have already filmed a high proportion of U.S. titles, NLM has found that most actual filming is for foreign imprints. With regard to locating an unused copy, as provided in Section 108(c), the National Library of Medicine believes that that is a viable option only if the work has been reprinted or has remained in print, since an old original is likely to be in essentially the same brittle condition as the one already in the library. Accordingly, if the work is not currently in print, NLM does not seek a copy in the second-hand trade but proceeds directly to filming.

In contemplation of converting preserved materials to electronic form, NLM convened a working group on compensation for intellectual property rights in the context of full-text storage and retrieval of scientific and technical information. Their Final Report was issued on September 3, 1983 and contained the following statement of principle:

With specific reference to the National Library of Medicine and considering the archival preservation of deteriorating or damaged out-of-print materials in the context of scientific and technical information, the conversion of them to machine processible form (such as, specifically, optical disc storage in either image form or digital form) should by agreement be regarded as permissible provided the use of such forms was limited to image display on the premises of the library. Any other use-- copying, transmitting to locations other than the premises of the library, or processing for purposes other than direct display--would be subject to copyright protection.183

This statement of principle followed some correspondence requesting the American Medical Publishers Association to agree to permit the National Library of Medicine to "transform into 'electronic' format out-of-print deteriorating volumes without seeking to determine if another paper copy is available."184 In that letter NLM stipulated that they understood the concern about possible subsequent uses of material stored electronically and that they would "treat the electronic copy as the book and...[would] use it only in exactly the same way the volume might now be used until such time as subsequent arrangements may clarify the conditions of retrieval and possible dissemination."185 In a subsequent letter, James Gallagher of the Williams and Wilkins Co. agreed to take up the issue with the Board of the Medical Publishers Association. The Association agreed to these principles at its meeting in the first week of February 1983.186

The legal authority of such an agreement is limited since the Association has no authority to bind its members. However, it does demonstrate good faith on the part of the library and it suggests that the publisher-members of the Board have considered the issues and shown a willingness to work with the library in the preservation effort. It also puts the Association on record as supporting this type of program.

Based on their experience, the National Library of Medicine is optimistic that publishers will work with the library community to solve the preservation problem. As a result, they believe a negotiated solution similar to the one they worked out with AMPA could also be worked out in a broader context.

D. University Microfilms

University Microfilms (UMI)is a private company that has been in the business of converting print materials to microfilm for many years. Not only does UMI film for its own commercial purposes, it also films on a contract basis with individual libraries, and it is currently engaged in such work on behalf of a number of libraries that have received preservation grants.

UMI is careful to operate within the confines of the copyright law, and always obtains the permission of the copyright holder before filming.187 Joe Fitzsimmons, the president of the company, described their rights and permissions files as the "essence of their business"188 since they contain contracts with over 10,000 publishers. This part of the enterprise is done with such care that for their dissertation program they actually have separate contracts with each individual author.

Because of the importance of rights and permissions to their business, UMI has developed a large and sophisticated staff to handle such matters. The staff seeks permission to copy not only for the basic microfilm operation, but also for their article reprint service and for online and CD-ROM document delivery. The staff devoted to this activity includes one vice president, two managers, three publisher representatives, four clerical staff, and ten people in the database management department.

According to Fitzsimmons in a presentation made at the Library of Congress in the spring of 1989, the royalty payment schemes are individually negotiated with each copyright owner, and the publishers' desires drive the compensation package.

Often, UMI responds to librarian requests to add a new publication. They then negotiate an agreement with the publisher that satisfies the library needs and provides the publisher with a new source of revenue at no additional cost. Typically, the resulting contracts are non-exclusive, and the royalties are based on net sales revenue for the title. Records of sales are maintained in an elaborate sales history file. Licenses for electronic distribution are similar, but they specifically give UMI a non-exclusive worldwide license to reproduce, distribute, and transmit the title in question. Again, the royalty is negotiated individually and based on net revenues.

The elaborate program developed by UMI is necessary because it operates in the commercial environment. The transaction costs are high, however, and to the extent that the brittle books program expands from narrow preservation work to the sale and distribution of protected works, it would be well advised to seek to minimize the transaction costs by the types of statutory changes noted infra or by working through a collective such as the Copyright Clearance Center.

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