Washington Brief - September 2003

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By Mary Alice Baish 

Dateline: July 24, 2003

The Public Domain Enhancement Act
Rep. Zoe Lofgren (D-CA-16) introduced the Public Domain Enhancement Act (H.R. 2601) on June 25, 2003. The 1998 Copyright Term Extension Act (CTEA), upheld in May by the U.S. Supreme Court, added an additional 20 years of copyright protection not just for new works but retrospectively as well. It severely curtails the ability of libraries and archives to preserve older works even though they may have no commercial viability. In fact, a 1998 report by the Congressional Research Service found that only 2% of works that would benefit from the additional 20 years of protection have any continuing commercial value.

H.R. 2601 provides a simple mechanism by which older and often endangered materials that will not be exploited commercially during the additional 20 years of protection provided by the CTEA would enter the public domain after 50 years unless the copyright owner files an electronic form with the Copyright Office and pays a $1 maintenance fee. If the payment is not received, the copyright would expire and the work would enter the public domain. In addition, the Copyright Office would be required to make the forms available to the public so that there would be one single directory of titles that remain under the additional 20 years of protection. This would simplify what today is a time-consuming, costly and often unsuccessful task for libraries and archives to track down copyright holders of these older materials.

AALL issued an action alert for additional cosponsors the day Rep. Lofgren introduced this important legislation, and we urge you to contact your representative requesting their support. (See: http://www.aallnet.org/aallwash/aa06252003.html) In addition, Larry Lessig, professor of law at Stanford Law School and a key supporter of this Act, has established an online petition to Congress, "Reclaim the Public Domain," that currently has more than 17,000 signatures. Please take a look at the petition and consider signing onto it. (See: http://www.petitiononline.com/eldred/petition.html)

The Freedom to Read Protection Act
Rep. Bernie Sanders (I-VT-At Large) introduced the Freedom to Read Protection Act (H.R. 1157) in March to exempt libraries from the Sec. 215 provision of the USA Patriot Act (P.L. 107-56). Sec. 215 expands the scope of materials that the FBI and other law enforcement agencies can access with a warrant from the Foreign Intelligence Surveillance Act (FISA) court, without having to show probable cause, to include library materials. These materials could include library circulation records, Internet usage records, floppy disks, data tapes and computer hard drives. Sec. 215 also prevents a librarian, under penalty of law, from informing patrons that the library is under investigation or that a patron's records have been searched. H.R. 1157 amends this provision to exempt bookstores and libraries from these FISA orders. It ensures that libraries and bookstores are subjected to the system of court-ordered warrants that existed prior to enactment of the USA Patriot Act. It's very encouraging that there are currently 130 bipartisan cosponsors for the Sanders bill. In May, AALL joined more than thirty organizations in a joint statement in strong support of the Freedom to Read Protection Act. (See: http://www.aallnet.org/aallwash/st05152003.html)

In addition, Rep. Sanders, along with Representatives C.L. Otter (R-ID-1) and John Conyers, Jr. (D-MI-14), ranking member of the House Judiciary Committee, offered a version of H.R. 1157 as an amendment to the Commerce, Justice, State, and Judiciary Appropriations bill of 2004 on the House floor this week. The amendment would have barred the FBI from searching bookstore and library records under the USA Patriot Act. Unfortunately, they ran into a procedural roadblock and the amendment was not considered. However, the House did vote 309-118 to amend the Justice Department appropriations bill to bar the FBI from using funds to secretly search the homes of suspects and only inform them later that a warrant had been issued to do so. This is the first time that either house has voted to limit the power given to the Justice Department by the USA Patriot Act.

2003 UCITA Scorecard
We have had another successful year in opposing UCITA, the Uniform Computer Information Transactions Act. First, we learned just before the February 2003 meeting of the ABA in Seattle that proponents of UCITA were seeking an endorsement from the House of Delegates for a resolution in support of UCITA. We hurriedly put out an alert on law-lib for your help in contacting your state delegates, and once again the national law library community responded to an urgent plea for help and the resolution was withdrawn in light of overwhelming opposition. Subsequently, UCITA was introduced in only two states this year, Oklahoma and Nevada. AALL members Sandra Marz and Roberta Studwell led library efforts to stop it in Nevada, and were so successful that a planned hearing on UCITA was actually canceled. In addition, we succeeded in getting a UCITA "bombshelter" bill enacted in Vermont and are working to support similar legislation in Delaware and Massachusetts. By enacting a UCITA "bombshelter" bill, a state can protect its residents and businesses from the choice of law and choice of forum provisions of UCITA, which has been enacted only in Virginia and Maryland.

The Electronic Government Services Act
AALL once again led state efforts to oppose the Electronic Government Services Act in Ohio thanks to our alert Ohio members who closely monitor state legislative activity. This is model legislation promoted by a group called ALEC (the American Legislative Exchange Council) that would prohibit state agencies from expending funds for the dissemination of electronic information or services if two commercial entities were providing the same information or service. On April 21st, we were alerted to its introduction as part of the state budget bill, and we quickly rallied national and state public access organizations. Within two days, we had op-ed pieces in two Ohio newspapers opposing it. Ohio constituents also got a promise from the Governor to veto it in case it moved through the legislature. This model law has been quietly introduced in nine states (CT, MA, MI, MS, OH, RI, SC, TN and VA) since 2001, and law librarians have been vigilant in watching for it and alerting us to its introduction. AALL strongly opposes the Electronic Government Services Act because it flies in the face of federal, state and local efforts to provide the public with timely access to electronic information by and about their government, as well as new E-Government services. We will undoubtedly see this model law reappear in a number of states next year.

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


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