Review of Legislation Under Consideration
Review of Legislation Under Consideration
1997/98
WIPO Treaties Implementation Act
(H.R. 2281 and S. 1121) was introduced in July 1997. It
was criticized by the
Digital Future Coalition and members of the cultural community as
being overly protective of online material while failing to mention
any of the concerns of the library, educational and cultural
community.
Digital
Copyright Clarification and Technology Act of 1997. On
September 3, 1997, Senator John Ashcroft (R-Missouri) introduced
S.
1146, as a response to the WIPO Treaties Implementation Act.
The Digital Era
Copyright Enhancement Act
(H.R.
3048). Introduced November 13, 1997, by House members Dick
Boucher (D-VA) and Tom Campbell (R-CA), this comprehensive bill
includes language to implement the WIPO Copyright Treaty but, unlike
H.R. 2281/S. 1121, it also includes sections recognizing the
importance of Fair Use, First Sale and Distance Learning. It
authorizes educators to use electronic networks for distance learning
in the same way they now use broadcast and closed-circuit television.
Importantly, the bill addresses the issue of contracts now being
discussed in the reformation of the Universal Commercial Code by
which "shrink-wrap" or "click-through" licenses and contracts could
abrogate or pre-empt rights and provisions guaranteed by federal
law.
While some members of NINCH cannot support specific legislation, others can. Here is a representation of members' views and positions on current copyright legislation. (Last updated: 4/16/98)
American Association of Museums
American Historical Association
Art Libraries Society of North America
Association of Research Libraries
Society of American Archivists
AMERICAN ASSOCIATION OF MUSEUMSLetter to Members of the House Judiciary Committee:
March 31, 1998 Dear Representative { }: As the full House Judiciary Committee tomorrow will consider amending the U.S. Copyright Act to address the challenges posed by the digital environment, the community of American museums wants to draw its concerns to your attention. As creators, publishers, owners and consumers of works protected by copyright, we strongly urge that the current balance between rights and exemptions -- between creators' proprietary interest to reap commercial benefit from their work and society's interest in the unfettered public access to creative works -- be preserved in the emerging electronic landscape. This balance is essential to the work museums do in carrying out their public service missions. The American Association of Museums' (AAM) constituents include our country's aquariums, arboretums/botanical gardens, art museums, children's museums, general museums, historic sites, history museums/historical societies, natural history/anthropology museums, nature centers, planetariums, science museums/technology centers, specialized museums, and zoos. These institutions house an enormous wealth of information for scholarly research and public education -- more than 700 million objects and associated documentation of our cultural, artistic, and scientific heritage. Museums pursuant to their public service missions provide broad access to their collections. In addition, as stewards of America's cultural heritage, museums have an equal responsibility to preserve and protect these collections. New technology affords museums exciting opportunities to increase public availability to the treasures museums hold in the public trust, but it also poses the danger that museum images will be copied in unauthorized ways, in infinite number, and sent around the world at the click of a button. With the growth of the Internet, museums are increasingly pressed to publish catalogues, collections, and digital archives on-line; simultaneously, they are challenged to manage intellectual property, facilitate transactions, and prevent the unauthorized use of images. This often is a difficult task given the current lack of legal guidance. If museums and ultimately the general public are to realize the tremendous educational potential of new technology, the "fair use" doctrine must continue to be an essential component of copyright law. Museums have traditionally relied on "fair use" for a multitude of educational purposes. Especially for museums that collect contemporary works in which they often do not hold the copyright, the vitality of "fair use" will directly affect their ability to carry out their missions, whether it is reproducing these works as illustrations in publications, as slides shown in auditoriums, as digitized images in collections management systems, or in innovative distance learning programming for children and adults alike. Museums also perform significant library and archival functions that require the flexibility that "fair use" provides. Museums' ability to continue to rely on "fair use" in the digital environment is critical if we are to achieve greater public access to the wonderfully rich and diverse body of resources museums preserve and protect. Museums also stand strongly behind the ability of others, most importantly students, scholars, educators, and librarians, to make "fair use" of museums' copyrighted images. As a member of the House Judiciary Committee, you can help museums advance their public service missions by ensuring and clarifying unambiguously that "fair use" extends into the digital environment. While museums are committed to providing ever increasing and meaningful access to America's cultural heritage, providing such access does not come without cost and must be balanced against museums' very real responsibility to care for their collections. Put another way, museums depend on a reliable source of earned income from providing access to their collections through images to support their equally important stewardship responsibility. This responsibility includes protection for digital transmissions of images of works in which the museum owns copyright, has licensed the use from the copyright owner, or has relied on "fair use." In carrying out this endeavor, contractual issues are becoming ever more important for museums, especially as they explore new licensing arrangements to make their collections widely available. Although museums may ultimately rely on contracts and licenses in the digital world, we feel strongly that contracts or licenses including those of the "click-on" or "shrink-wrap" variety should not be allowed to abrogate fundamental legal guarantees such as "fair use." Other developments appear to threaten the future of "fair use." We are concerned that anti-circumvention proposals could vitiate "fair use" in the digital environment. In her testimony last fall before the House Judiciary Subcommittee on Courts and Intellectual Property, Register of Copyrights Mary Beth Peters voiced concerns we share: The Copyright Office agrees that it would be extremely undesirable to end up with a world where fair use interests were not accommodated in an optimal manner. We share the concerns as to how these questions will be answered. If the fair use community's fears were realized, the risk would be high. If access for such purposes becomes unduly restricted, with fees charged for each use, unreasonable costs imposed, and copies not available in non-electronic form, a legislative solution would be called for. Notwithstanding our concern, we were encouraged by the Subcommittee's action during February's mark-up to exempt libraries, archives, and educational institutions, which clearly should be interpreted to include museums, from H.R. 2281's criminal penalties. The emergence of new technology poses significant challenges for museums not the least of which is navigating complex intellectual property issues. The AAM has undertaken a number of activities to increase awareness within the museum community of the importance of intellectual property issues, especially copyright. In addition, we have participated in the Conference on Fair Use (CONFU) as a member of the steering committee and as co-chair of the subgroup charged with negotiating Proposed Educational Fair Use Guidelines for Digital Images. AAM also has been working with other nonprofit organizations to build a consensus within the cultural and educational community on copyright in the digital age. The product of that effort is Basic Principles for Managing Intellectual Property in a Digital Environment. We have asked our board to endorse these principles and we have enclosed a copy for your consideration. In sum, we recommend caution and urge you to ensure that the subtle balance in copyright law remain intact in the digital environment. Please contact me, if you would like to discuss any of these issues. Sincerely, Edward H. Able, Jr.
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AMERICAN HISTORICAL ASSOCIATION
Letters of Support for Boucher-Campbell and Ashcroft Bills"A Rare Opportunity
to Create the Ideal Electronic Environment,"
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ART LIBRARIES SOCIETY OF NORTH AMERICALetters of Support for Boucher-Campbell and Ashcroft Bills
Friday March 20, 1998 Dear David, I'm pleased to report that the ARLIS/NA Executive Board has endorsed the two watershed bills (S.1146, Sen. John Ashcroft's Digital Copyright Clarification and Technology Act; and H.R. 3048, the Digital Era Copyright Enhancement Act introduced by Reps. Rick Boucher (D-VA) and Tom Campbell (R-CA)). ARLIS/NA, along with the majority membership in the Digital Future Coalition, believes that these bills represent a positive approach to updating the Copyright Act to meet the challenges of the digital environment while, at the same time, preserving the critical balance between copyright owners and users in the electronic age. Together, these bills offer a significant and welcome alternative to the current legislation supported by the Administration to implement the new WIPO treaties (e.g. H.R. 2281) which propose an unnecessarily complex range of measures and restraints. ARLIS/NA is encouraging its members -- particularly through the chapters -- to write letters to national legislators in support of these bills. A press release on this subject is being prepared at ARLIS/NA headquarters in Raleigh for distribution later this month. Regards, Roger Lawson Past President, ARLIS/NA
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ASSOCIATION OF RESEARCH LIBRARIESThe Pending Copyright Legislation: What Matters?"The future of intellectual discourse in the coming century has, at this moment, a direct connection to bills pending in Congress. Several pieces of copyright legislation, in the House and in the Senate, will have a profound effect on our professional lives and the mission of our libraries and educational institutions. These proposed updates to the nation's copyright laws for the digital age have immense implications for all of us engaged in education, research, scholarly writing: all of us whose professional lives center on the sharing of ideas in the pursuit of knowledge. "Two of these bills, Senator John Ashcroft's (R-MO) Digital Copyright Clarification and Technology Act (S.1146) in the Senate, and in the House, the Digital Era Copyright Enhancement Act (H.R. 3048) introduced by Reps. Rick Boucher (D-VA) and Tom Campbell (R-CA), represent balanced legislation: both the rights of the creators, owners, and of the users of copyrighted information would be protected in the digital environment as they currently are in print media. The passage of these bills will ensure for us the rich and timely circulation of information, which is, after all, the matrix supporting the scholarly mission. "Justice Sandra Day O'Connor reminds us that "The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work...." Letters of Support for Boucher-Campbell and Ashcroft Bills
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COLLEGE ART ASSOCIATIONFrom CAA NEWS, January, 1998: Digital Copyright Legislation IntroducedIn September and November of last year, two important digital copyright bills, S. 1146 and H.R. 3048, were introduced in the Senate and the House of Representatives. The Digital Future Coalition (DFC), comprising educational groups including CAA, library associations and technology and consumer electronics manufacturers, was instrumental in providing advice to Senator John Ashcroft (R-MO) and Representatives Rick Boucher (D-VA) and Tom Campbell (R-CA), who are the original co-sponsors of these bills. Both bills would implement international copyright agreements concluded in December 1996 in Geneva and attempt to move copyright into the digital age by preserving the traditional balance between copyright owners and users. The legislative proposals include several provisions that are of interest to CAA members:
Two other digital copyright bills, H.R. 2281 and S. 1121, were introduced in the middle of last year. The DFC has opposed these proposals, because they are regarded as overly favorable to the large copyright industries. CAA, with other members of the DFC, will be working throughout this year in Washington and in the districts of Congressional members to ensure that any copyright legislation passed is properly balanced among educators, consumers, and other users and traditional copyright owners. Undoubtedly, the pending digital copyright bills are the most significant pieces of copyright legislation that Congress has considered over the last twenty years. [emphasis added] Jeffrey Cunard, CAA Counsel Letter of Support for H.R. 3048 (Boucher-Cambell)
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SOCIETY OF AMERICAN ARCHIVISTSSAA Letters of Support for Boucher/Campbell and Ashcroft Bills"...In fulfilling their responsibility to identify, secure, preserve and make accessible the documentary heritage of society, archivists are deeply concerned about some of the proposals for implementing the World Intellectual Property Organization treaties. In particular, archivists have been troubled by proposals that would abridge the public and scholarly users' ability to access historical documents under the "fair use" provisions of the copyright act. At the same time, archivists look to continued, if not expanded, support of the concept of fair use in application to our management of collections. Only with a robust support for fair use will archivists be able to take advantage of new electronic technologies to bring the riches we hold to the benefit of the public at large."
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VISUAL RESOURCES ASSOCIATIONVRA Supports Boucher/Campbell Bill 01/20/97The VRA has endorsed the Boucher/Campbell Bill (H.R. 3048, the "Digital Era Copyright Enhancement Act") which was recently introduced by Representatives Rick Boucher and Tom Campbell. This bill presents a balanced approach to issues of digital intellectual property rights and public access to networked information. VRA Expresses Non-Endorsement of WIPO Implementation Act (2/27/97)
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