Washington Brief - December 2000

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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

Final Rule on Anticircumvention Disappoints Library Community

Librarian of Congress James Billington today issued the final rule in the rulemaking proceeding related to the Section 1201(a)(1) anticircumvention provision of the Digital Millennium Copyright Act (DMCA). The purpose of the rulemaking was to determine whether current technologies that control access to copyrighted works diminish the ability of individuals to use works in lawful, non-infringing ways. In order to get an exemption for a particular class of works, proponents needed to prove that such technologies have or will have "a distinct, verifiable, and measurable adverse impact on noninfringing uses of works in that class of works." The library community had urged a meaningful exemption to preserve fair use and to allow a library or archive to carry out preservation activities permitted under copyright law. Dr. Billington agreed to exemptions for only two classes of works, as recommended by the Copyright Office:  

  1. Compilations consisting of lists of websites blocked by filtering software applications; and
  2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence.  
In his statement announcing the final rule, Dr. Billington noted that the proceeding raised several concerns. First, that rapidly changing technologies probably make waiting three years for the next rulemaking, as mandated by the DMCA, too long, and he will ask Congress to consider shortening that time frame. Second, he will ask Congress to consider developing more appropriate criteria for assessing the harm that could be done to "American creativity" by the statute, and the burdens on the scholarly, academic and library communities to demonstrate and measure the required impact on users. And third, that the Register of Copyrights and the public need more precise guidance regarding the definition of "class of works" as well as the standard of proof required for exemption.

AALL joined our partners in the Shared Legal Capability (ALA, ARL, MLA and SLA) in promptly issuing a press release expressing our disappointment with the ruling. Noting that we have worked hard to ensure that the longstanding principle of fair use will continue in the digital age, we expressed deep concern that the ruling poses serious new barriers that will restrict access to information by the public. (http://www.aallnet.org/aallwash/pr10272000.asp)

Fall Federal Depository Library Conference

The FY 2001 budget crisis and the October 6th draft Superintendent of Documents (SOD) Policy Statement regarding which titles will continue to be distributed to depository libraries in dual formats ensured a record attendance at this week's joint Fall Depository Library Council & Federal Depository Library Conference. Among the 600 participants were more than sixty law librarians representing academic, state, court, county and federal agency law libraries. While there was an aura of doom and gloom during the first day of the conference, the programs and discussions allowed a full airing of concerns regarding the impact of the $2 million cut in the FY 2001 appropriations for the depository library program.

Among the pressing issues of concern analyzed by members of the Depository Library Council (DLC) was the draft SOD Policy Statement that articulates under what conditions a tangible product will be distributed to depository libraries when an online version is accessible. The SOD also includes a list of "essential titles" that, when published in paper format, will be distributed to depositories in print (http://www.access.gpo.gov/su_docs/fdlp/draftsod.html). These titles include, among others the FR, CFR, Statutes at Large, Treaties and Other International Acts, United States Code and United States Reports. GPO requested that this list of 22 titles be expanded, and has set a deadline of November 10th to notify them of additional core titles. Please contact new DLC member Charlene Cain or myself as soon as possible if you would like to recommend additional titles for this core list.

Also among Council's seven recommendations was one building on last spring's recommendation that GPO not end distribution of the microfiche Congressional bills--which they have in fact done. The new recommendation regarding the "Official Status of Online Bills" states, in part, that "Council recommends that GPO work with the Clerk of the House and the Secretary of the Senate to certify the official status of Congressional bills available through GPO Access" and that GPO report back to Council at the April meeting in San Antonio.

Law librarians participated in two very fine programs during the conference. There was high interest in and appreciation for Paul Arrigo's presentation on the Washburn University School of Law project that provides a full-text searchable database of U.S. government periodicals available through the Internet ( In addition, A. Hays Butler presented a program on "Reconsidering Depository Status" that was based on the successful program he coordinated during our July Annual Meeting in Philadelphia. In addition, several members of the GRC and the GD-SIS met with me over dinner one evening to develop an advocacy program to educate members of Congress on the important role that law libraries play as members of the federal depository library community. You'll see evidence of our strategy session when we engage you in this important education and advocacy effort following the November election. Lastly, twenty of us enjoyed our traditional Tuesday evening "Law Librarians' Dinner" that provided a delightful opportunity for networking and relaxation!

NCLIS Draft Reports Available for Public Comment

The U.S. National Commission on Libraries and Information Science has just released reports by the four panels that have been working since late summer on the Comprehensive Assessment of the Federal Government's Public Information Dissemination Policies and Practices. NCLIS is seeking comments on the reports prior to their scheduled November 15th meeting during which the report will be presented to and discussed by members of the Commission. The reports are available online for public comment: Panel One Final Report - Reforming the NTIS Business Model for the Information Age (http://www.nclis.gov/govt/assess/panel1.html); Panel Two Final Report - Internal Federal Agency Information Needs (http://www.nclis.gov/govt/assess/panel2.html; Panel Three Final Report - External User Needs (http://www.nclis.gov/govt/assess/panel3.html); and Panel Four Final Report - Public-Private Sector Partnerships (http://www.nclis.gov/govt/assess/panel4.html).

As a member of Panel Four, I assisted in drafting the final report that delineates the roles played by the government, the private sector and libraries in the dissemination of government information. One of its key recommendations is to ensure that the Federal government continues to have primary responsibility for the entire life cycle of electronic government information, including the dissemination and permanent public access to government information, without restrictions, to the American public. The NCLIS final report will be presented to the President and Congress in December.