ARCHIVED: Legislative and Regulatory Update - July 18, 1995

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AALL Legislative and Regulatory Update
Pittsburgh, Pennsylvania Annual Meeting

July 18, 1995

Legislative and Regulatory Update by Robert L. Oakley,
AALL Washington Affairs Representative,
Director of the Law Library and
Professor of Law at the Georgetown University Law School

Good morning. I am delighted to be here to participate in the annual legislative update session at AALL. It has been an interesting year, to say the least.

At this time a year ago I noted that many of the policy issues seemed to be shifting focus as the Clinton administration had adopted the National Information Infrastructure as one of its major initiatives. Such a high level of Presidential interest in information related issues seemed to signal a more favorable climate for libraries and for promoting access to information. It seemed to signal a greater interest on the part of the government in making its information available electronically. It seemed to signal an interest in finally trying to grapple with the issue of copyright in the electronic environment.

Well, all this has turned out to be true. The Clinton administration has been more interested in these issues than previous administrations. What we didn't know, of course, was that the November elections would bring an entirely new Congress to power, with radically different ideas and a willingness to make decisions quickly, without substantial deliberation. Like Clinton, the new Congress, too, has seized on the use of electronic methods for the distribution of government information. They have pushed that concept hard, especially for the distribution of Congressional information, and they have also viewed it as a way to reduce the cost of government.

At the same time, Congressional Republicans have been willing to reexamine programs that have been in place for many years. This approach has put pressure on traditional information agencies like the Government Printing Office and the Office of Technology Assessment. Although the OTA was originally threatened with elimination, it is now proposed to be moved to the Library of Congress, reducing L.C.'s budget accordingly. This could result in substantial cutbacks in staff, the closing of reading rooms, and a sharp reduction in interlibrary lending. It is a significant concern.

The willingness of Congress to take such a radical approach to information issues, especially those concerning the dissemination of information, has also challenged us, as librarians, to think about the way in which things have been done in the past and to reconceptualize them for a new age. Mary Alice will speak further about the work we have done in that regard in a few minutes. AALL in general, and Mary Alice in particular, have been leaders in the effort to rethink a framework for the distribution of government information. In the meantime, I want to talk for the balance of my time about three other areas: the Paperwork Reduction Act, Public Domain Citations and Databases, and Copyright.

Paperwork Reduction Act

Every year since we began these Legislative Updates, we have talked about the Paperwork Reduction Act. This year I get to give you what I believe is the final chapter.

As you will recall if you have attended these sessions in the past, the Paperwork Reduction Act expired in 1989. In addition to authorizing the Office of Information and Regulatory Administration in the Office of Management and Budget, the Act also directed OMB to develop a National Information Policy. When they tried to do that during the Reagan years, OMB's draft Circular A130 aggressively promoted the privatization of government information, a position that attracted a firestorm of opposition from the library community.

In subsequent years, the Circular was toned down somewhat, but when the time came to reauthorize the Act, Congress decided to try its hand at outlining some basic policies. The development of these policies was difficult, as the library community sought to maintain its principles of free and open access to government information, while the private sector sought to maximize its ability to profit from the redistribution of government information. The meetings on this legislation were contentious, and on some points, even the library community couldn't agree.

At the end of the last Congress, Senate staff began circulating a compromise bill for comment. The compromise was nowhere near as good as the bill introduced by Senator Glenn in the early days of the 103rd Congress. The earlier bill took a lifecycle approach to government information and actively promoted public access. The compromise left all that out, but it also left out most of the things to which we had objected in earlier versions of the bill. As a result, while the compromise was not really what anybody wanted, it seemed to accomplish something while avoiding the major pitfalls. It passed this spring, a few months after the convening of the 104th Congress.

Before passage, however, there were a couple of minor flare ups. First, the bill contained a provision to limit fees to that needed to cover the cost of dissemination. This limitation was supported by both the industry and the library community, but unfortunately, the bill permitted exceptions to that policy merely on the written request of an agency head. The library community and the industry both feared that the exception would soon be the policy and would lead to a pattern of profittaking by agencies as they sought to make money from the sale of their information. The industry and the library community joined together and protested the new provision. Although the administration really wanted the discretion to waive that provision, eventually it was dropped.

The second hot issue came when a legal publishers sought to have inserted into the bill a provision that would have prevented the government from making its own information available to the public when a contractor prepares the information or otherwise adds value to it. Such a provision would have given private contractors exclusive rights over government information that would defeat underlying purposes of FOIA and the part of the Copyright Act that precludes a copyright on Federal government information. It was also inconsistent with another provision in the same bill that precludes exclusive contracts for the distribution of government information.

AALL joined with many other individuals and interest groups to protest the last minute insertion of this provision into the bill. It was quickly dropped.

The final bill does promote timely and equitable access to government information. It also prohibits agencies from maintaining monopoly distribution arrangements, from imposing restrictions on the reuse of public information, and from collecting royalties for the information. User fees may not exceed the cost of distribution. In the end, we didn't get all that we would have liked, but the basic message is still pro low cost public access.

Citation Reform and Public Domain Databases

Probably the most difficult areas we dealt with this year were the issues of citation reform and public domain databases of legal information. To many, these issues do not seem difficult at all; the first simply recognizes the need to be able to cite to the newest information in the newest formats and creates a mechanism to do so. The second follows directly from AALL's longstanding support of public access to public information. We have always supported those laws that promote free access to government information, including the Freedom of Information Act, the Depository Library Program, and Section 105 of the Copyright Act.

When we moved beyond general statements of principle, however, to the specifics of legal information, we touched a raw nerve in at least a few places. I wrote to Janet Reno and our Executive Board adopted a resolution on the issue.

Following these events, the Supreme Court of Wisconsin considered a proposal this spring to create an electronic public repository of court opinions and to adopt a system of citations to those opinions that was both medium and vendor neutral. I was asked by the President to go to Wisconsin and to testify before the court. In my appearance, I was careful to avoid endorsing their particular proposal since the Board had yet to act on the Report of the Citation Task Force. Instead, I basically restated the Board's resolution favoring public domain databases and medium and vendor(0*0*0*neutral citation systems.

Since the hearing, the Wisconsin Court postponed its final decision on the citation system, but moved forward, nonetheless, by agreeing to experiment with preparing, filing and making available their opinions electronically. The citation question will be revisited in the Court's 1996-97 term.

In the meantime, these issues are now being considered in a number of other states. The Florida Supreme Court has tried to avoid the problem by making pinpoint citations optional. Missouri has agreed to allow paragraph numbers for pinpoint references. Washington state issued an RFP for print and CDROM publication of its opinions which forbids publishers from claiming copyright in the volume and page numbers of the opinions. The South Dakota Bar Association has recommended adoption of the Wisconsin proposal with a mandatory parallel cite to the Northwestern Reporter. I assume that the West Publishing Co. will oppose this proposal on the grounds that they want no mandatory citations, not even to West products. Finally, Representative Barney Frank has introduced a bill forbidding courts and agencies from requiring citation to proprietary products where alternatives exist. AALL has not yet taken a position on the Frank bill.

These developments together with the proliferation of new products in new electronic forms suggest that the issue is not going to go away. Some means is needed to refer to newer forms of information, and until that system is developed and accepted, the debate will continue.


As interesting as these issues have been, perhaps the most important ones that I have worked on this year have been those concerning copyright. Here, I want to touch briefly on three areas: the Texaco case, copyright and the National Information Infrastructure, and Term Extension. Taken together, the changes that are occurring in the copyright law will very much affect what we as librarians are able to do to meet the needs of our users.

As most of you know, the Texaco case was settled this spring, subject to all the parties reaching agreement and obtaining the approval of the court. In the Texaco case, a researcher made copies of articles for his files from journals that had been circulated to him along with other researchers. If I had to guess, I would bet that this same practice is a daily occurrence in the offices of most of our members, especially our law firm members.

The lower court decision turned largely on a new analysis of one of the four factors of fair use. Traditionally, courts had found that "research" was a favored activity and that copying carried out in support of the research was likely to be fair use. In Texaco, however, the Court found that the nature of the research was to support the commercial activities of Texaco. To the court, then, the use was "commercial" and therefore presumptively not a fair use.

On appeal, the Second Circuit deemphasized the commercial aspect of the copying and instead emphasized the fact that the copying was "archival". In other words, the article was not being used in current research; instead it was being used to create a "library" for future reference. This, the Court said, took it out of the favored "research" category and caused it to be looked at as a substitute for the original, something which is not favored.

The Court further said that the copying interfered with the market since the Copyright Clearance Center provided a mechanism for payment which was being bypassed. In the past, we have always thought that you only had to go to the CCC if the copying was beyond fair use. This decision seems to suggest that the CCC is factor to consider when deciding whether the copying is fair use in the first place.

These decisions were troubling to the library community since they seem to change the nature of fair use in some fairly fundamental ways. A coalition of the five major library associations agreed to support an amicus brief for the petition to the Supreme Court. Regrettably, before the petition could be filed, the parties agreed to settle the case. That leaves these unfortunate decisions on the books with very little that we can do about them. In the meantime, the Working Group on Intellectual Property of the Information Infrastructure Task Force has been working to consider the issue of Copyright and the NII. They issued a draft report last summer the socalled Green Paper. To most of the library community, the Green Paper seemed to give greater consideration to the needs of proprietors than to the needs of information users. For example, the report called for the expansion of the exclusive rights of owners to include a right of transmission without clarifying that the rights of libraries also applied in the electronic environment. The report did not deal with fair use at all, but promised to hold a series of meetings to discuss the issue.

I testified before the Working Group last fall, and I have been attending the fair use meetings along with Lolly Gasaway (AAU) and Sally Wiant (SLA) throughout the year. Regrettably, even on the most innocuous of topics like preservation we have made only very modest progress. The publishers have made it very clear that they want no changes nothing that could be seen as an expansion of the fair use doctrine. And most assuredly, they do not want to concede that we can do anything at all digitally.

In the meantime, the publishers have been developing the trump card an electronic system to protect proprietary works distributed electronically. Such a system would put works into an electronic envelope that could be opened only upon compliance with the terms written on the outside. Such terms are likely to include payment and restrictions on downloading or copying. This kind of technology threatens to eliminate fair use in its entirety in the electronic environment.

Lastly, certain parts of the publishing industry are pushing this year for an extension of the term of copyright from life plus fifty years to life plus seventy. Billed primarily as an international trade issue to protect U.S. authors, this proposal seems to be greased for easy passage. In reality it is being pushed by the music industry and to a lesser degree the movie industry. Regrettably though, this tail is going to wag the whole copyright dog. From our perspective, it means that the vast bulk of works published during the period will not come into the public domain until after they have crumbled into dust onto our shelves.

How should we respond to these changes? I believe that the time has past when we should just sit around and wait for the next lawsuit from the AAP. I think this is especially true because of the transition to digital delivery mechanisms. Those changes are causing some fundamental uncertainties about copyright, and if we are not careful we are very likely to lose everything we have already gained.

So, those are some of the issues we have worked on this year information policy generally, citation reform and public domain databases of legal material, and several different aspects of copyright. For the coming year, I think that all of these will continue to be issues, although I think the intensity level and emphasis will change. For the coming year, I think the horizon will be dominated by two things copyright and reforming the system of public distribution of public documents. And it is about that last topic and a few others that Mary Alice will talk about next.

 1995, Robert L. Oakley