_________________________________________________________________ ALAWON Volume 7, Number 137 ISSN 1069-7799 November 3, 1998 American Library Association Washington Office Newsline In this issue: (158 lines) [1] PRESIDENT SIGNS COPYRIGHT BILLS [2] WORK REQUIRED ON FAIR USE, DISTANCE EDUCATION PROVISIONS _________________________________________________________________ [1] PRESIDENT SIGNS COPYRIGHT BILLS As reported in the October 13 ALAWON (v7, n125), the Digital Millennium Copyright Act (H.R. 2281), which intends to implement the WIPO copyright treaties, was among the few bills to be passed in the late days of the 105th Congress. After three intensive years of work by ALA, the national library community, and their three dozen partners in the Digital Future Coalition, final House action on October 12 paved the way for Senate ratification of the WIPO treaties on October 21, just prior to Congress' adjournment. On October 28, with the President's approval, H.R. 2281 became P.L. 105-304. On October 27 the President also signed The Copyright Term Extension Act (S. 505)as P.L. 105-278. _________________________________________________________________ [2] WORK REQUIRED ON FAIR USE, DISTANCE EDUCATION PROVISIONS However, while the passage and signature of the Digital Millennium Copyright Act (P.L. 105-304) closes an important chapter in the evolution of copyright law for the digital age, the language of the bill itself opens several new ones. A brief summary of the work yet to do (by librarians, educators, consumer advocates and others) with respect to several important provisions follows: FAIR USE AND OTHER LIMITS ON COPYRIGHTS Effective two years from now, the DMCA will make it unlawful to "circumvent" any "technological protection measure" (such as a password or more sophisticated encryption) used by the owner of a copyrighted work to restrict access to it. Congress also made clear, however, that they did not wish to see such technological measures employed in a manner that interfered with fair use of the protected material, or with other uses that do not infringe the owner's copyright. Accordingly, Section 103(a) of the DMCA also established a new formal rulemaking procedure designed to allow any person or institution to make the case that protection systems either had interfered, or were likely to do so, with such legal uses or with lawful access to a "particular class" of copyrighted materials. If that case can be made, the DMCA empowers the Librarian of Congress -- on the advice of the Register of Copyrights and the head of the National Telecommunications and Information Administration (NTIA)-- to issue a waiver from the bill's basic prohibition on "circumvention" for all materials in the identified class. The waiver would cover all materials in the class, not just uses by the person or institution who sought the waiver. The first such rulemaking proceeding will be conducted during the next two years while the effect of the new prohibition is deferred, and then every three years thereafter. No information has yet been provided by the Librarian of Congress or Register of Copyrights as to how or when comments will be sought. Clearly, the collection of data regarding the experience of individual librarians and institutions with the use of protection technologies by copyright owners will be a critical building block of any successful waiver request. ALA will be working closely over the next few months with other national library associations and many others in the public sector to devise and publicize a system of collecting and analyzing such information on an ongoing basis. The statutory language for TITLE I--WIPO TREATIES IMPLEMENTATION, SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT MANAGEMENT INFORMATION is posted at http://thomas.loc.gov/cgi-bin/query/z?c105:h.r.2281.enr: DISTANCE EDUCATION Despite the efforts of educators, librarians and others in the DFC, the DMCA does not update for the digital age those parts of the current copyright law designed specifically to facilitate distance education (17 U.S. Code, Sections 110 and 112). The new law does, however, require the Register of Copyrights to furnish Congress with recommendations for how to do so by approximately May 1, 1999. The Register is further directed by the bill to consult with "representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives," but does not specify any particular procedure that the Register must follow in doing so. It is not clear at this writing whether the Register will issue a formal public notice soliciting comments on this issue, whether draft recommendations will first be drafted and circulated, or whether input on this issue will be invited ad hoc or in some other manner. In the interim, ALA strongly urges all affected institutions and their counsel immediately to measure the ways in which they currently use copyrighted material for instructional purposes against the present text of 17 U.S.C. 110 and 112. The degree to which the current Copyright Act fails to expressly authorize such uses may form the basis of comments submitted to the Register in the relatively near future. The statutory language for TITLE IV, SEC. 403. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION is posted at http://thomas.loc.gov/cgi-bin/query/z?c105:h.r.2281.enr: ELECTRONIC COMMERCE The DMCA further requires the Register of Copyrights and the head of the NTIA (in Section 104) to study the effects of the new law on "the development of electronic commerce and associated technology," and on the relationship between existing and emergent technology and the operations of sections 109 and 117" of the current Copyright Act. These sections, respectively, codify the "first sale doctrine" (on which library lending heavily depends) and permit limited kinds of computer program copying. The results of the study (including any recommendations for changes to the statute) must be presented to Congress in approximately two years. Once again, the statute does not provide detailed instructions as to how and when public comment on these issues will be sought, but ALAWON will provide more information as it becomes available. In light of the significance of the first sale doctrine to core library functions -- and the doctrine's current limitation to non electronic material -- the outcome of this study could dramatically influence the nature of library services in the next century. The statutory language for CHAPTER 12-COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS, SEC. 104. EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON ELECTRONIC COMMERCE AND TECHNOLOGICAL DEVELOPMENT is posted at http://thomas.loc.gov/cgi-bin/query/z?c105:h.r.2281.enr: _________________________________________________________________ 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, go to http://www.ala.org/washoff/ subscribe.html or 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: Adam Eisgrau All materials subject to copyright by the American Library Association may be reprinted or redistributed for noncommercial purposes with appropriate credits. _________________________________________________________________