Washington Brief - March 1999

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Dateline: January 28, 1999

Hearings on Distance Education Through Digital Technologies

Following up on last month's news about the study and report to Congress on distance education that the Copyright Office is directing, James G. Neal, Dean of the Milton S. Eisenhower Library at Johns Hopkins University, presented the joint library community testimony at the first hearing held on January 26th. Dean Neal spoke eloquently of the need for the educational community to engage in distance learning activities using digital technologies, and that there should be no distinction between what is permitted in a classroom setting and access to digital resources in a remotely controlled environment. The testimony focused on four key points:


  1. That the current distance education exemption in copyright law should be updated to facilitate use of the latest technologies and pedagogical practices.
  2. That it is important to balance the interests of users and owners of copyrighted works so that education institutions, including libraries, may fully realize the benefits of information technologies and the networked environment.
  3. That in designing changes to the copyright laws, it will be important to ensure that the statute is sufficiently flexible to incorporate new technologies not yet developed or now thought of as "cutting edge."
  4. That licensing is not a replacement for a statutory balance of rights, and that unless federal copyright policy explicitly provides for a modern distance learning limitation in keeping with educational needs and technological opportunities, users negotiating licenses will find that the current law leaves them more subject to terms and pricing on a "take it or leave it" basis.
Twenty witnesses representing both the educational and proprietary communities testified during the two-day set of hearings held here in Washington. All the witnesses on behalf of the proprietary community made it explicitly clear that they oppose any change to the law, arguing that "If it ain't broke, don't fix it" and raising concerns about the unlawful downstream use of copyrighted materials. You'll find our joint library community testimony at: http://www.aallnet.org/aallwash/tm012699.asp.

Database Protection Bills Already Under Consideration

Given our recognition that the enactment of database protection is the number one priority for many within the publishing community, it was not at all unexpected when Sen. Orrin Hatch (R-UT), chair of the Senate Judiciary Committee, issued a lengthy statement in the Congressional Record on January 19, 1999. Hatch's statement reaffirmed his commitment to enact database legislation promptly this year "with an appropriate balance of interest." Hatch attached to his statement two bills: H.R 354, the Collections of Information Antipiracy Act introduced that day by House Judiciary Committee member Howard Coble (R-NC); and a discussion draft crafted by members of the Digital Future Coalition, the Database Fair Competition and Research Promotion Act of 1999 (145 CR S316).

Although H.R. 354 is a revised version of H.R. 2652, the bill that Coble sponsored in the 105th, it contains some of the same very broad and undefined language that has been problematic in the past. It does include, however, new language that is meant to address our fair use concerns, and it limits protection to 15 years, as opposed to the perpetual protection provisions of H.R. 2652. To add to the database options that members of the 106th Congress will be deliberating, we have learned recently that Sen. John McCain (R-AZ), a member of the Senate Commerce Committee, is preparing to introduce two additional database bills. Stay tuned for updates on this important issue!

Term Extension Act Challenged by Internet Publisher

While intellectual property legislation (like most of our information policy issues!) rarely makes the headline news during the legislative process, often enactment does have consequences that are only later fully understood by affected parties. A prime example is a recent lawsuit filed in the U.S. District Court for the District of Columbia to challenge the Sonny Bono Copyright Term Extension Act of 1998 ( P.L.105-298), Eldritch v. Reno. Eldritch Press is a non-profit organization established in 1995 to republish books whose copyright term has expired (http://eldred.ne.mediaone.net). The new statute retroactively adds twenty years to the term of copyright, preventing works published in 1923 from entering the public domain this year. After learning of this legal barrier to the further development of this award-wining website, Professor Lawrence Lessig and colleagues at the Berkman Center for Internet & Society at Harvard Law School recently filed a lawsuit on behalf of Eldritch Press (http://cyber.law.harvard.edu/eldredvreno).

Filtering Issues Resurface

On January 11, 1999 the Freedom To Read Foundation joined a small yet broad-based coalition led by the Association of American Publishers in filing an amicus brief in support of the ACLU v. Reno lawsuit challenging the Child Online Protection Act (COPA) that was enacted last fall. The three key arguments of the brief (http://www.cdt.org/speech/amicus.html), reminiscent of the successful lawsuit against the Communications Decency Act (CDA), are that:


  • COPA, even with its affirmative defenses, places unconstitutional burdens on mainstream, constitutionally-protected online speech;
  • COPA's supposed statutory narrowing from the CDA does not cure the statute's constitutional infirmities;
  • and that far less restrictive alternatives exist in the form of ever-more-effective user empowerment technology.
In addition, Sen. John McCain (R-AZ) has just reintroduced the Children's Internet Protection Act (S. 97) that, like its counterpart last year, would require filtering and blocking software to be used by any school or library receiving universal service discounts.


Mary Alice Baish
Assistant Washington Affairs Representative
Edward B. WIlliams Law Library
111 G Street, N.W.
Washington, DC 20001-1417
202/662-9200 * FAX:202/662-9202