ALAWON: American Library Association Washington Office Newsline Volume 8, Number 29 March 23, 1999 In this issue: [1] ALA, Library Associations Testify on Database Protection Bill [2] Government Witnesses Testify on H.R. 354 [3] ALA, Others Endorse Position Statement on H.R. 354 [1] ALA, Library Associations Testify on Database Protection Bill James Neal, dean of university libraries at Johns Hopkins University and member of the ALA Executive Board, testified March 18 on H.R. 354, the Collections of Information Antipiracy Act. H.R. 354 is a revised version of legislation to provide additional protection for commercial databases. Neal -- testifying on behalf of ALA, the American Association of Law Libraries, the Association of Research Libraries, the Medical Library Association and the Special Libraries Association -- said he appreciated new provisions in this year's bill that sought to address some of the concerns raised during the debate last year on H.R. 2652. He concluded, however, that if the legislation is enacted in its current form it would fundamentally change the research enterprise and how researchers use information and at what cost. "The approach taken in H.R. 354 could lead to a licensing framework where facts, government information, and other information could not be used without permission and with additional costs for each use," Neal said. "The ability to tightly control uses of information, including downstream transformative uses would be at odds with a culture of building upon prior research and could undermine the basic mechanisms of scientific and educational data exchange." Neal indicated that a more narrowly tailored bill focused on outlawing the parasitical copying of commercial databases would have widespread support in the library, education, and commercial sectors. He said the library associations would be pleased to work with the Subcommittee to achieve such legislation. Neal's testimony is available at http//www.ala.org/washoff/statements.html. H.R. 354 was introduced by Rep. Howard Coble (R-NC), chair of the House Judiciary Subcommittee on Courts and Intellectual Property, which held the March 18 hearing. A draft of a more narrowly tailored bill was inserted in the Congressional Record for discussion purposes by Sen. Orrin Hatch (R-UT), chair of the Senate Judiciary Committee. (See ALAWON v8, n10, January 28, 1999 at http://www.ala.org/washoff/alawon/alwn8010.html. Sen. Hatch's discussion draft is available at http://thomas.loc.gov/cgi- bin/query/z?r106:S19JA9-93:) Neal was part of a large panel that included several supporters of H.R. 354 in its current form -- Terry McDermott of the National Association of Realtors, Marilyn Winokur on behalf of Micromedex and the Coalition Against Database Piracy, and Lynn Henderson of Doane Agricultural Services Corporation. Daniel Duncan of the Software and Information Industry Association supported the bill but felt the changes from last year included some problematic concessions. Michael Kirk of the American Intellectual Property Law Association supported the bill but provided several suggestions for clarifications. Other panelists included Charles Phelps, provost of the University of Rochester, who testified for the Association of American Universities, the American Council on Education, and the National Association of State Universities and Land-Grant Colleges. Phelps said that the associations supported legislation targeted to address unfair competition and database piracy, identified several critical standards that such legislation should meet, and concluded that H.R. 354 failed to meet these standards. Joshua Lederberg, president-emeritus of Rockefeller University and Nobel Prize winning geneticist, testified on behalf of the National Academy of Sciences, the National Academy of Engineering, the Institute of Medicine, and the American Association for the Advancement of Science. He indicated that the current bill is unacceptable, and his testimony described the need to maintain the traditional public domain for factual data, explained why the U.S. should not be compelled to follow a flawed European model for database protection, and discussed legislative alternatives to H.R. 354. [2] Government Witnesses Testify on H.R. 354 Two government witnesses opened the House hearing on March 18 on H.R. 354, the Collections of Information Antipiracy Act. Register of Copyrights Marybeth Peters said the U.S. Copyright Office is convinced that there is a need for new federal legislation to supplement existing law and provide adequate incentives for investments in databases. H.R. 354 addresses many of the concerns Peters raised in the last Congress. She stressed that, "the sensitivity and importance of this subject matter demands great care in crafting a statutory balance. Several issues still warrant further analysis, among them the question of possible perpetual protection of regularly updated databases, and the appropriate mix of elements to be considered in establishing the new, fair use-type exemption." U.S. Department of Commerce General Counsel Andrew Pincus said the Administration supports legal protection against commercial misappropriation of collections of information and believes digital technology increases opportunities for such abuses. "At the same time," he said, "the Administration's concerns with the provisions of H.R. 354 are similar to those we expressed with respect to H.R. 2652, including the concern that the Constitution imposes significant constraints upon Congress's power to enact legislation of this sort." Pincus listed a set of principles any such legislation should address, including that databases generated with government funding generally should not be placed under exclusive control of private parties, and that exceptions analogous to "fair use" principles of copyright law should be provided. In particular, he stated, "any effects of non-commercial research should be de minimus." In a long analysis, Pincus detailed many problems with the bill in its current form. The Administration supported a major change from last year -- limiting the term of protection to 15 years -- while expressing concern about the potential for perpetual protection of dynamic databases and the propensity for sole-source markets for data. On the other major change from H.R. 2652, Pincus recommended several revisions to the "reasonable uses" provision added to H.R. 354 -- to be more analogous to "fair use" in the copyright law, and to focus on distribution rather than use. Discussion by Courts and Intellectual Property Subcommittee members present, including new ranking minority member Howard Berman (D-CA), indicated that the Subcommittee recognized that some issues remain to be addressed as the bill evolves. [3] ALA, Others Endorse Position Statement on H.R. 354 ALA endorsed a position statement on H.R. 354, the Collections of Information Antipiracy Act, that was distributed at the House Judiciary Subcommittee on Courts and Intellectual Property hearing on the bill on March 18. The statement was endorsed by a total of 117 (and growing) library and education associations, other nonprofit organizations, educational institutions, corporations, and trade associations. The position states: "The basic information policy of this country -- a policy that has existed since the writing of the Constitution -- has served us extremely well. The policy is that the building blocks of all information -- facts, as distinct from the copyrightable manner in which they are expressed -- cannot be owned. The particular legislative approach that has been considered by the House Judiciary Committee in the past three Congresses would mark a fundamental change in our nation's information policy. The problems raised by this change to commerce and competition were recognized by the Department of Justice, the Department of Commerce, and the Federal Trade Commission last year in separate letters to Congress identifying their concerns with H.R. 2652 considered by the 105th Congress. H.R. 354, the Collections of Information Antipiracy Act, is modeled on last year's bill and does not resolve these concerns. We support Federal legislation that will not harm legitimate research activities and small businesses, but will -- -- prevent unfair competition in the form of parasitic copying; -- preserve the fair use of information; -- promote the progress of science, education and research; -- protect value-added publishers and their customers; and -- provide safeguards against monopolistic pricing. We look forward to working closely with all Members of Congress to craft well-reasoned, targeted and balanced legislation that will punish database pirates without jeopardizing the thriving commerce in information long at the core of America's economic, scientific and intellectual life." James Neal, witness for the library associations, asked that the position statement be included in the hearing record. The statement was also attached to the testimony submitted for the record by the Computer & Communications Industry Association, the Information Technology Association of America, and the Online Bankers Association. ****** ALAWON (ISSN 1069-7799) is a free, irregular publication of the American Library Association Washington Office. All materials subject to copyright by the American Library Association may be reprinted or redistributed for noncommercial purposes with appropriate credits. To subscribe to ALAWON, send the message: subscribe ala-wo [your_firstname] [your_lastname] to listproc@ala.org or go to http://www.ala.org/washoff/alawon. To unsubscribe to ALAWON, send the message: unsubscribe ala-wo to listproc@ala.org or go to http://www.ala.org/washoff/alawon. ALAWON archives at http://www.ala.org/washoff/alawon. 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