The 98th Congress expired a couple of weeks ago with a major piece of literary business left unfinished. To be sure, it found the time and energy to authorize a memorial to the immortal Kahlil Gibran, and for that all of us are most grateful. But it failed to take action of any sort on Senate bill 2192, a measure of considerably greater import even than the Gibran commemorative.
This bill, introduced by Charles McC. Mathias of Maryland, died with the 98th Congress but will be reintroduced when the 99th convenes next year. If passed it would create a National Commission on the Public Lending of Books, the responsibility of which would be "to consider whether specific compensation for authors for the lending of their works would promote the economic health of authors and authorship in the United States; and, if so, to make recommendations concerning appropriate payment to authors from funds to be appropriated by Congress or from a national trust fund established for that purpose."
The commission, in other words, would be charged with determining whether to recommend that the United States adopt what is known, in the 10 countries that have established it, as public lending right. This would be a recommendation and nothing more, but even that would be an important step toward devising a system under which authors would receive fairer compensation than they now do for the free public use of their work -- compensation more or less comparable to that now given, by federal law, to composers for radio play of their music.
Public lending right is a tricky and controversial business, as was abundantly evident last week at the convention in Baltimore of the Middle Atlantic Regional Library Foundation, an organization whose members come from Delaware, the District, Maryland, New Jersey and West Virginia. One of its panel discussions was called "Public Lending Rights Policy: Is It Workable in the U.S.?" The question was hardly resolved during an hour and a half of discussion; there was broad if not unanimous agreement on the basic principle that authors should be paid for library use of their books, but almost none on the far stickier question of how to do it.
The specifics of the Mathias bill were discussed by Ralph Oman, chief counsel for the Senate subcommittee on patents, copyrights and trademarks. Describing Mathias as "an advocate for the creative process in the U.S. Senate" -- just about the only senator, apart from Pat Moynihan, of whom that can be said -- he pointed out that the Republican from Maryland had introduced the bill in his capacity as chairman of the Joint Committee on the Library, which oversees the Library of Congress. His motives in so doing, Oman said, were to encourage "the continued creation of works of quality" and "the widest possible dissemination of these works." The commission established under the Mathias bill would have 11 members, a modest budget of $100,000 and a life of two years. As now envisioned by Mathias, he emphasized, public lending right would take from libraries no funds now allocated to them.
A number of interesting and pertinent points were raised by Phyllis Ball, a former staffer at the Association of American Publishers. Among them were these: that private rental libraries have established a precedent in this country of payment for loan privileges; that there similarly is precedent for compensation to authors in existing law governing multiple use of published work through photocopying; that authors indirectly subsidize the library system because their books are used, to all intents and purposes, for next to nothing; that technology and models for the accumulation of borrowing data already exist, most notably in the Copyright Clearance Center; and that, regrettable though it may be, there is no real constituency for public lending right.
None, that is, because the only persons with a vested interest in it are authors. They may be articulate and shrill, but their numbers are few. To say that there is vast public indifference to their situation is laughable understatement; nobody out there cares. Apart from various authors' organizations that have come out, predictably, for public lending right, there has been a great silence on the subject elsewhere; the American Library Association, to mention one example, has yet to take a position on the subject.
That no doubt has much to do with the complicated views widely held on the subject among librarians. Most of those who spoke from the floor at last week's meeting said that in principle they could recognize the legitimacy of the authors' complaint, but that they had great difficulty seeing how public lending right could be put into practice in a country the size of this one. On the most immediate level, they and the panelists agreed that public lending right may be purely wishful thinking at a time when official and popular hostility toward new government programs is so great. They also wondered, though, about the administrative burdens that public lending right would place on them, about whether a workable method for compiling borrowing data could be constructed, about whether the end result might well be the elimination of "free" from the free public library system.
All of these are important and legitimate questions, as also were those raised by the moderator of the discussion, Agnes M. Griffen, director of the Montgomery County library system. Two of them were: "Should the proposed law cover works by all authors, regardless of citizenship, should it be limited to Americans, or should it include Canadians, Mexicans and other Latin Americans?" and "What is the rationale for including only books borrowed from public libraries? Why shouldn't such a law cover school, academic, federal, special, corporate or even church libraries?"
In other words: If a National Commission on the Public Lending of Books is ever established, its members will have one devil of a job to do. The questions with which it will have to wrestle really are complicated, vexing and confusing. As one who ardently supports public lending right both in principle and in fact, I do not envy those who will have to go into the arena and make the hard judgments about what system, if any, could meet and reconcile the conflicting interests of the many parties to the controversy.
Yet the matter must be attended to. It may not be a question of great public urgency, but it certainly is one of simple equity. Nowhere in the Constitution will one find reference to any "right" of citizens to the free use of authors' books, but in Section 8 of Article 1 it is written as clear as day that Congress "shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The extension to authors of the full protection of this clause is long overdue, and only public lending right can do it.