ARCHIVED: Legislative and Regulatory Update - July 1996

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July 1996

Mary Alice Baish
Assistant Washington Affairs Representative
Georgetown University Law Library
111 G Street, N.W.
Washington, DC 20001
202/662-9200 *FAX:202/662-9202
Internet: baish@law.georgetown.edu

The following summarizes the issues that Bob Oakley and I will be presenting at the Legislative and Regulatory Update on July 22nd in Indianapolis.

Copyright: The NII and Term Extension

Bob Oakley, representing the Digital Future Coalition, testified before the Senate Judiciary Committee on May 7, 1996 on S. 1284/H.R. 2441, the "NII Copyright Protection Act of 1995." The testimony stressed that the balance between the protection of intellectual property and "robust" access to information by users, including libraries and educational institutions, must be preserved in the electronic environment. The testimony offered legislative language to amend the bill that would:

Provide clear guidelines for libraries, schools, educators and businesses as to when they willand will notbe liable for infringing the Copyright Act as they maximize the use of Internet technology;

Clarify the scope of the authors' right in electronic transmissions with the users' ability to access copyrighted information;

For preservation purposes, add an important new subsection allowing libraries the right of reproduction to three copies of a published or unpublished work;

Reaffirm the First Sale Doctrine to allow a legally acquired digital copy to be passed on electronically as long as the original is not also retained;

Promote the benefits of distance education by permitting certain exemptions to the distribution of digital information;

Extend civil and criminal liability only to those who intentionally defeat copyright management information systems, and not to libraries and schools.

Congress is also considering extending the term of copyright by an additional 20 years from the current term (the life of the author plus 50 years). This would keep materials out of the public domain and make it more difficult for libraries to preserve their collections. New Senate language crafted by Register of Copyright Marybeth Peters is somewhat more favorable to libraries and their preservation needs than the bill as originally introduced. The copyright term extension bill on the House side has been incorporated into HR 2441. However, the Judiciary's Courts and Intellectual Property Subcommittee has postponed the markup on this bill several times since midMay leading some to speculate that the bill may not pass this year.

The Government Printing Office

The Study

GPO issued its final report to Congress on the yearlong Study to Identify Measures for a Successful Transition to a More Electronic Federal Depository Library Program on May 31, 1996. The Washington Office coordinated the final joint library response to the study, including specific comments on a dozen of the individual task group reports. These comments were first drafted by COMA members, including AALL's Dorie Bertram, Susan Dow, Carol Moody and Susan Tulis. In the cover letter, we emphasized that the transition should be flexible and evolving, and that it should incorporate a formal and continuing process of technology scanning and evaluation. The letter also reiterated our belief that a technical study should be carried out to determine the most costeffective and feasible alternatives for the transition. This study would provide necessary data on technological issues, such as hardware, software and standardization, as well as on the current capabilities of agencies and libraries.

Senate Rules Hearings

The hearing scheduled for May 22nd was postponed at the very last minute due to a full schedule of Senate floor budget votes. The Senate Rules and Administration Committee, chaired by Sen. John Warner (RVA), is now holding two hearings on "Public Access to Government Information in the 21st Century" on June 1819th. Interestingly, Sen. Warner sent a letter to all Virginia depository libraries in late April asking for specific comments on the GPO study, and how the transition would affect their users. A special thanks to all the Virginia law library directors who responded. Their letters emphasize the special concerns of law depository libraries throughout the country, including those in academic and court libraries. Well done!

The first day of hearings will feature Superintendent of Documents Wayne Kelley, ALA President Betty Turock, former Depository Library Council chair Dan O'Mahony, and a user. The second day of hearings will include a hightech "futurists" panel, including witnesses to discuss why the future is so difficult to predict, and the demographics of users. We assisted Senate Rules staff in inviting University of Pittsburgh Professor Dennis Galletta to join this panel. Galletta's research at the Katz Graduate School of Business centers on the enduser, and his Washington Post oped piece back in February was attentiongetting. In it, he made four key points: that the Internet is slow; that information is often hard to deal with; that connections are unreliable; and that it's very difficult to filter through the vast amount of information. Galletta remains very optimistic about the future of the Internet, noting that these technological problems will be addressed in time. The final two panels will consist of representatives from government agencies (the Office of Management and Budget, the National Technical Information Service, the Department of Commerce, and the Defense Technical Information Center), and representatives from the private sector including publishers and online service providers.

New (or Renewed?) Threats to GPO

The final two panels to appear before the Senate Rules Committee pose threats of varying degrees to GPO. OMB and NTIS are challenging GPO's traditional role of procuring and publishing executive branch information, and the private sector is renewing its voucher system. At the House Oversight hearing on GPO last August, OMB's Sally Katzen proposed that agencies be allowed to contract out their printing, and that GPO could compete along with the private sector. We have just learned of a very serious development in this regard that threatens the future of GPO. A May 31st letter from the Department of Justice's Office of Legal Counsel to the General Counsel of the General Services Administration analyzes the constitutional involvement of the GPO in executive branch printing and duplicating. It states that "We find that the GPO is subject to congressional control, and conclude that the GPO's extensive control over executive branch printing is unconstitutional under the doctrine of separation of power." This is a powerful assault on the centralized procurement and printing functions of the GPO, which OMB has long regarded as monopolistic. It is also a battle to be played out between Congress and the executive branch, particularly as House and Senate committees review the results of the GPO study and ponder changes to Title 44.

NTIS and representatives from the private sector will also appear before Senate Rules. NTIS has proposed allowing depository libraries unlimited online access to their electronic information service, and they will initiate a pilot project this summer. A selfsupporting agency dependent on revenues from its sales programs, NTIS is asking the participating libraries not to make the electronic files available outside the library. On the one hand, this will bring valuable scientific and technical information (STI) into depository libraries for the first time, and at no cost; on the other hand, it requires participating libraries to restrict usage of the electronic files. Most depository librarians welcome the availability of STI into their libraries despite the usage restriction. These NTIS materials would not technically be part of the FDLP. Another, though far less dangerous, threat to GPO comes from the Information Industry Association. The IIA is promoting a voucher system through which depository libraries would receive federal funds to purchase government information from the private sector. The hearing on the 19th has become very important as the Senate Rules Committee meets to consider these various proposals.

GPO/LC FY '97 Appropriations

No word yet from the House regarding the GPO and LC budget requests. The Senate Legislative Subcommittee hearings have been scheduled for June 21st (GPO) and June 25th (LC). The Joint Committee on the Library held an important hearing on May 7th at which the firm of BoozAllen presented its financial management report on the Library of Congress. Word of its findings were prematurely leaked to the press, particularly its recommendation that LC relinquish its mission as our de facto national library. Librarian of Congress James Billington presented a wellreceived defense of the Library's national and global mission that will hopefully translate into adequate funding for FY 1997. Our strong support for LC's mission has been incorporated into our joint library statement for the Senate subcommittee hearing on June 25th.

New Reports on Cryptography and Preservation. Two interesting reports, one dealing with the government's cryptography policy and the other with the critical issue of preserving digital information, have recently been released. The National Research Council's congressionallymandated study entitled

Cryptography's Role in Securing the Information Society traces the government's use of encryption to protect classified and other sensitive information. The report also analyzes the postCold War development of the NII that necessitates finding technological means to assure privacy and security. The report's six recommendations provide a framework for a national cryptography policy that balances national security and law enforcement interests with the rights of citizens. The full report, along with a 35page summary, is at http://www2.nas.edu/cstbweb/. Also of interest is the newly published final report of the Commission on Preservation and Access and the Research Libraries Group entitled Preserving Digital Information: Report of the Task Force on Archiving of Digital Information. The Task Force, charged eighteen months ago with investigating how to ensure permanent access and preservation of digital information, proposes a national archival system. This would consist of a network of participating archival repositories that must meet certain certification standards, and a failsafe mechanism to ensure that valuable digital information is not lost. This report is especially critical and timely as the government moves towards more electronic access of agency information, without putting into place needed assurances of longterm access and preservation. The print report is available for $15 prepaid from The Commission on Preservation and Access, 1400 16th St., N.W., Suite 740, Washington, D.C. 200362217 (202/9393400). It's also available on the Internet at http://www.rlg.org.

Annual Meeting Reminder

Last month, I highlighted in this column several programs in Indianapolis in which Bob and I are participating. As a quick reminder, we hope that many of you will be able to join us and members of the Government Relations Committee at the annual update on Monday, July 22nd. We are still awaiting the decision in the Communications Decency Act lawsuit, and Judith Krug of ALA's Office for Intellectual Freedom will join us to provide a timely update. Whatever the outcome, this decision will have a profound effect on the future development of the Internet. For those of you unable to attend, the Center for Democracy and Technology will be posting the decision electronically at http://www.cdt.org/ciec as soon as it is released. Also, I would like to add that Jay Friedland will be joining Judith Krug at Tuesday afternoon's program on "The First Amendment Confronts the Internet." Jay is vicepresident of marketing for SurfWatch and he will demonstrate how parents can use this blocking software to screen materials that they deem offensive for their children. It promises to be a very interesting demonstration and a timely discussion.

1996, American Association of Law Libraries