================================================================= ALAWON Volume 7, Number 85 ISSN 1069-7799 July 20, 1998 American Library Association Washington Office Newsline In this issue: (162 lines) COMMERCE COMMITTEE APPROVES COPYRIGHT BILL WITH FAIR USE COMPROMISE _________________________________________________________________ COMMERCE COMMITTEE APPROVES COPYRIGHT BILL WITH FAIR USE COMPROMISE The House Commerce Committee approved H.R. 2281, its version of the Digital Millennium Copyright Act of 1998, on July 17. The Committee's meeting had been postponed several times while last minute negotiations continued among various copyright proprietor interests, library and higher education representatives, and committee staff on the issue of how to retain fair use and other privileges for users of electronic information wrapped in technological protection measures such as encryption. Chairman Thomas Bliley (R-VA) described the resulting "fair use" agreement as one that "gives consumers a reliable and regular process that ensures they will have fair use' access to information and copyrighted works -- without stifling growth in electronic commerce." Rep. Bliley's opening remarks at the markup session went on to say: Above all other issues, it is this issue of fair use' that concerned me the most. I have faith that the digital revolution holds enormous promise for consumers and the economy. It is changing, and will continue to change, the way in which we learn...work...invest...and even heal ourselves. And that change, I believe will be for the greater good But I also recognize that, in many ways, the digital environment is the great unknown. It is the newest of new paradigms.' Digital technology has the potential -- and let me emphasize the word potential' -- to lock up information and works that are otherwise widely available to consumers today. The fact that this problem is only speculative' or hypothetical' does not convince me that we should do nothing. Quite the opposite, it raises the possibility that it will inhibit growth in electronic commerce. The agreement we have today gives consumers a reliable and regular process that ensures they will have fair use' access to information and copyrighted works -- without stifling growth in electronic commerce. I appreciate all of the parties participation in these negotiations, and look forward to moving forward on this important piece of legislation. The amendment, offered by Rep. Scott Klug (R-WI) -- a champion of fair use in the Commerce Committee along with long-time advocate Rep. Rick Boucher (D-VA) -- would: * Eliminate the single most objectionable part of H.R. 2281 which would have created a statutory ban on the "circumvention" of a "technological protection measure," even if such circumvention were undertaken to permit fair (or other lawful) use of the underlying material; * Substitute in its place a provision directing the Secretary of Commerce, no later than two years after the legislation goes into effect, to adopt a regulation prohibiting such circumvention, BUT only after conducting a formal rulemaking proceeding to determine "whether users of copyrighted works have been, or are likely to be . . . adversely affected by the implementation of technological protection measures that effectively control access to copyrighted works." * Require the Secretary, in the course of this initial rulemaking, to examine a number of factors, including the availability for use of copyrighted works; their availability for archival, preservation and educational purposes; the impact of technological protection measures on traditional fair uses such as scholarship and research; the effect of circumvention on the market for or value of copyrighted works; and such other factors as may be deemed appropriate by the Secretary; * Require the Secretary, if adverse effect is shown to have occurred or to be "likely" with regard to any particular class of copyrighted material (e.g., software, or journal articles), to exempt works in that class from the prohibition on circumvention in order to facilitate their lawful use for the following two years; and * Require the Secretary to conduct such a rulemaking, and issue or renew all justified waivers, every two years after the initial rulemaking. In summary, the Committee constructed a permanent regulatory structure intended to protect "digitally wrapped" copyrighted works while assuring that the use of such "wrapping" technology does not preclude lawful use of such works. ALA participated in the negotiations on this provision, and agreed not to oppose this version throughout the remainder of the legislative process on the bill. The ALA position was set with the understanding that the proprietor community actively supported the compromise. Should other legislation that ALA opposes (such as the House-passed database protection measure or copyright term extension) be combined with this bill, ALA would oppose such a combined package. Other provisions of interest in the Commerce Committee's bill are the inclusion of several provisions from the Senate-passed bill: some relief from online service provider liability; a study regarding the impact of such liability on educational institutions; a study on how to promote distance education through digital technologies while retaining appropriate balance; and the provisions which enable the use of digital technologies for library preservation. The bill also includes a House provision exempting libraries and educational institutions from criminal liability from violations of circumvention prohibitions; and new provisions exempting encryption research (a form of fair use) from circumvention prohibitions, allowing reverse engineering for purposes of interoperability; and allowing the circumvention necessary to protect personal privacy. Overall, the bill is designed to implement the World Intellectual Property Organization copyright treaties and to update U.S. copyright law and related provisions. The House Judiciary Committee had earlier approved a different version of H.R. 2281. The versions must now be reconciled before the bill can be scheduled for a House floor vote, which could occur before Congress recesses for a month in early August. Stay tuned for the next step in this fluid and complex process. _________________________________________________________________ ALAWON is a free, irregular publication of the American Library Association Washington Office. To subscribe, send the message: subscribe ala-wo [your_firstname] [your_lastname] to listproc @ala.org. To unsubscribe, send the message: unsubscribe ala-wo to listproc@ala.org. ALAWON archives at http://www.ala.org/ washoff/alawon. Visit our Web site at http://www.alawash.org. ALA Washington Office 202.628.8410 (V) 1301 Pennsylvania Ave., NW, #403 202.628.8419 (F) Washington, DC 20004-1701 800.941.8478 (V) Lynne E. Bradley, Editor Deirdre Herman, Managing Editor Contributors: Carol C. Henderson Adam Eisgrau All materials subject to copyright by the American Library Association may be reprinted or redistributed for noncommercial purposes with appropriate credits. =================================================================