Washington Brief - April 2000

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Dateline: February 18, 2000

Mary Alice Baish
Associate Washington Affairs Representative
Edward B. WIlliams Law Library
111 G Street, N.W.
Washington, DC 20001-1417
202/662-9200 * FAX:202/662-9202
email: baish@law.georgetown.edu

DMCA Aftermath: Joint Library Rulemaking Comments

One of the library community's achievements during the prolonged and heated negotiations over provisions of the Digital Millennium Copyright Act of 1998 (DMCA) was a two-year delay in the effective date of Section 1201(a) that prohibits the circumvention of access control measures put in place by copyright owners to protect their works. The DMCA mandated a formal rulemaking process by the Librarian of Congress, to be repeated every three years, that will determine whether fair use and other exemptions will apply in the electronic environment. A tremendous amount of work and effort by ALA, AALL, ARL, MLA and SLA over the past eight months has resulted in our joint library comments submitted to the Copyright Office on February 17, 2000. Reply comments are due March 20th.

In addition to responding to the 29 questions posed by the Copyright Office in the FR Notice of November 24, 1999, our joint comments urge the Librarian to issue a broad exemption to these restrictions because it would apply only to uses already subject to exemption under fair use and other provisions of copyright law. Without the exemption, the impact of these technological control measures on libraries would: 1) limit the applicability of the first sale doctrine; 2) curtail the ability of libraries to archive and provide long-term access to electronic resources; and 3) impede other non-infringing activities that advance the fundamental public purpose of copyright law. We believe that such an exemption would encourage the content community to create technological measures that are flexible and respectful of the historic balance in copyright law. Our comments are available in both pdf and html formats.

Database Still in Limbo....

We consider it a positive sign that our anti-H.R. 354 coalition, battling the Collections of Information Antipiracy Act, has kept it thus far from moving to the House floor. Negotiations between members and staff of the Judiciary and Commerce Committees, plus the various proponents and opponents, continue. Our most recent anti-H.R. 354 letter has 63 signatories, ranging broadly from the library and non-profit communities to businesses, phone companies and even Yahoo!Inc (http://www.aallnet.org/aallwash/lt02082000.asp). We continue to seek additional support for H.R. 1858, the Commerce Committee legislation that includes AALL's exclusion for primary legal materials.

Virginia--The First State to Enact UCITA?

The answer will very likely soon be yes. The Virginia UCITA legislation (SB 372 and HB 561) has raced through the General Assembly, been passed unanimously in both the House and Senate by the crossover deadline of February 15th, and there is no doubt in anyone's mind that Gov. Jim Gilmore will sign it. I made statements on behalf of AALL and VALL on February 13th at the meetings of the Senate Courts of Justice Committee and its subcommittee. I basically:  

  • briefly outlined all the opposition to UCITA, ranging from the FTC and the American Law Institute to the library, consumer and business communities of Virginia;  
  • noted that during the NCCUSL drafting process, the library community did raise many issues that were largely ignored;  
  • highlighted our concerns with provisions regarding preemption and fair use; preservation; and the transfer and lending of information products;  
  • and noted that while we recognize that the legislature is very likely to pass UCITA within the next few weeks, we strongly believe that a comprehensive review of the provisions of UCITA by representatives from all the stakeholder groups must result in the adoption of serious and substantive amendments to ally our grave concerns with this "not-ready-for- prime-time" legislation.
  • The latter point reflects the two compromise amendments to the Virginia bill that are favorable to our side: first, that the effective date will be delayed until July 1, 2001; and second, that the Joint Commission on Technology and Science "shall appoint a technical advisory committee to study the impact of this act on Virginia businesses, libraries and consumers."

Maryland appears to be taking a slightly slower approach, and while the February 3rd joint hearing in Annapolis included testimony from UCITA proponents AOL and Microsoft, the members paid close attention to the statements from our side. AALL was very well represented by Skip Lockwood, coordinator of our 4cite coalition; by Jim Neal, Director of the library system at Johns Hopkins University; and by AALL member Harvey Morrell, who also spoke on behalf of LLAM. In addition, the assistant attorney general for consumer affairs spoke quite negatively about UCITA's effects on Maryland consumers. For updated news, visit the 4cite (For a Competitive Information and Technology Economy) web site at: http://www.4cite.org/.

The Future of NTIS...

The National Commission on Libraries and Information Science (NCLIS) has conducted two day-long meetings in the past month to discuss the future of the National Technical Information Service (NTIS) with as many stakeholders as possible. At the February 4th meeting, a representative from the Department of Commerce (DOC) defended their proposal to shut down NTIS and move its clearinghouse functions to the Library of Congress by the end of FY 2000. President Clinton's recent budget includes a request of $4 million for that purpose. Congressional staff members in attendance complained that the DOC was merely transferring costs from the executive to the legislative branch. Officials from NTIS and the DOC agreed that it would cost $5 million annually to maintain the clearinghouse functions and increase public access, no matter where the clearinghouse operations were physically located.

Winston Tabb from the Library of Congress noted that they were taken utterly by surprise with last August's announcement, and he was politically noncommittal about moving the clearinghouse to LC. Superintendent of Documents Fran Buckley spoke about how the clearinghouse could be merged with existing SuDocs services (GPO Access, the GPO Sales Program, and the Federal Depository Library Program). Both Tabb and Buckley pressed the need to look at NTIS within the broader issue of federal government information policy, such as finding tools, permanent public access, the preservation of electronic information, and the lack of effective agency enforcement mechanisms.

Thus far, no real consensus has been reached other than the need to remedy the short-term problem of staff and funding for NTIS by getting appropriations for the remainder of FY 2000 plus $5 million to continue its operations until the end of FY 2001. You'll find a collection of NCLIS documents on the possible closing of NTIS at: http://www.nclis.gov/info/ntis/ntis.html