****Begin File******************Begin File*******************Begin File**** *************************************************************************** ISSN 1069-7799 ALAWON ALA Washington Office Newsline An electronic publication of the American Library Association Washington Office Volume 4, Number 17 Part 1 of 2 March 2, 1995 In this issue: (153 lines) ALA SUMMARIZES DISAGREEMENTS WITH "GREEN PAPER" ON COPYRIGHT NEH CHAIRMAN TESTIFIES BEFORE SENATE SUBCOMMITTEE NEH GRANT APPLICATION DOCUMENT NOW AVAILABLE *************************************************************************** ALA SUMMARIZES DISAGREEMENTS WITH "GREEN PAPER" ON COPYRIGHT ALA and several other library and education groups have expressed concern about press and other reports that the recommendations in the final version of the "Green Paper" by the Administration's Working Group on Intellectual Property Rights will not be significantly different from the preliminary version released in July 1994. A February 14 letter from the groups to Sally Katzen, Administrator of the Office of Management and Budget's Office of Information and Regulatory Affairs, and to Bruce Lehman, Commissioner of Patents and Trademarks, summarized significant points of disagreement with the analysis in the Green Paper, not only by library and education organizations, but by distinguished copyright experts and private sector entities. Lehman chairs the working group, one of several under an information policy committee headed by Katzen. An attachment to the letter summarized comments submitted by a variety of parties on three key issues--fair use, electronic transmission rights, and the first sale doctrine. The letter indicates the working group failed to analyze the implications of its proposed recommendations on fair use, and did not acknowledge the importance of fair use to research, education, and the creation of new knowledge. The letter mentions that other commenters expressing concerns related to fair use included the Administration's NII Advisory Council, the U.S. Copyright Office, McGraw-Hill, Inc., and the Alliance to Promote Software Innovation. Concerning an electronic transmission right, library groups argued that the Green Paper went too far in extending the exclusive rights of copyright holders and paid only superficial attention to the needs of users of electronic information. A variety of other commenters took issue with one or more recommendations in the Green Paper on this issue. The U.S. Copyright Office questioned whether all transient copies would infringe the reproduction right; Jessica Litman, Professor of Law at Wayne State University, said the recommendations would change the reproduction right into an unprecedented exclusive reading right. Other commenters mentioned in the letter include the Home Recording Rights Coalition; IBM; Pamela Samuelson, Professor of Law at the University of Pittsburgh; the NII Advisory Council; ASCAP; BMI; Bell Atlantic; PBS; and joint comments by America Online, Inc., CompuServe, Inc., Delphi Internet Services Corp., GE Information Services Inc., LEXIS, Prodigy Services Co., and Ziff Communications Co. The library groups opposed the Green Paper's proposed abolition of the first sale doctrine for electronic information because it would effectively give copyright owners monopoly control of the secondary market. The letter mentioned other commenters who had problems with the Working Group's position, including Bell Atlantic, the Association of American Universities, the Information Industry Association, Time Warner, the U.S. Copyright Office, NPR, and the joint Online Service Providers. The letter requested a meeting with Katzen and Lehman, urged the Working Group to give full consideration to all the arguments that have been presented, and to reflect these arguments in revised recommendations in the final report. Groups signing the letter included the American Association of Law Libraries, the American Library Association, the Association of Academic Health Sciences Library Directors, the Association of American Universities, the Association of College and Research Libraries, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. In order to provide full text of the letter and related attachments ALAWON will be issued in two parts today. This report on the "Green Paper" in Part 1 will be followed by a Part 2 for those readers who are interested in the complete version of the letter and attachments. *************************************************************************** NEH CHAIRMAN TESTIFIES BEFORE SENATE SUBCOMMITTEE Sheldon Hackney, Chairman of the National Endowment for the Humanities, testified today, March 2, before the Education, Arts and Humanities Subcommittee of the Labor and Human Resources Committee in support of the reauthorization of the National Endowment for the Humanities. In his statement, and in the discussion following, several points were made on subjects in which libraries also share an interest, especially relating to NEH literacy programs. Senator Jeffords (R-VT) emphasized the importance of these efforts in meeting the literacy goals set in Goals 2000. Hackney stated that one of his greatest concerns for NEH is the need to make more humanities materials and programs available through the information infrastructure. He sees this as helping to fulfill the agency's function of providing access to the humanities to the largest possible audience. ACTION NEEDED: Please contact your U.S. Senators and emphasize your support for the reauthorization of NEH. While reaching all senators and representatives on this issue is important, right now those most critical to contact are members of the Education, Arts and Humanities Subcommittee of the Senate Labor and Human Resources Committee. An important resolution adopted by the ALA Council at its Mid-Winter meeting urged Congress to reauthorize and continue to fund the National Endowment for the Humanities. That resolution has now been forwarded to Congress. *************************************************************************** NEH GRANT APPLICATION DOCUMENT NOW AVAILABLE The Overview of Endowment Programs 1995 from the National Endowment for the Humanities is now available. This document provides information about grants available through the NEH and application information. For a copy contact NEH Overview, Rm. 402, 1100 Pennsylvania Ave., NW, Washington, DC 20506. When you mention that you are a reader of the ALA Washington Office Newsletter or ALAWON your copy of Overview will be free. NEH also has announced a new Bulletin Board System accessible be modem at 202/606-8688. For more information e-mail NEHOPA@GWUVM.GWU.EDU (Bitnet.) *************************************************************************** *************************************************************************** ALAWON (ISSN 1069-7799) is an irregular publication of the American Library Association Washington Office, 110 Maryland Avenue, N.E., Washington, DC 20002-5675. Internet: alawash@alawash.org; Phone: 202-547-4440; Fax: 202-547-7363. Contributing to this issue: Carol C. Henderson and Claudette W. Tennant; Editor: Lynne E. Bradley (leb@alawash.org). ALAWON is available free of charge and is available only in electronic form. To subscribe, send the message "subscribe ala-wo [your name]" to listserv@uicvm (Bitnet) or listserv@uicvm.uic.edu (Internet). Back issues and other documents are available from the list server. To find out what's available, send the message "send ala-wo filelist" to the listserv. The ALA-WO filelist contains the list of files with the exact filename and filetype. To get a particular file, issue the command "send filename filetype" to the listserv. Do not include the quotes in your commands. All materials in the newsletter subject to copyright by the American Library Association may be reprinted or redistributed for noncommercial purposes with appropriate credits. For other reprinting or redistribution, address requests to the ALA Washington Office (alawash@alawash.org). *************************************************************************** ***End of file******************End of file******************End of file*** ****Begin File******************Begin File*******************Begin File**** *************************************************************************** ISSN 1069-7799 ALAWON ALA Washington Office Newsline An electronic publication of the American Library Association Washington Office Volume 4, Number 17 Part 2 of 2 March 2, 1995 In this issue: (507 lines) ALA SUMMARIZES DISAGREEMENTS WITH "GREEN PAPER" ON COPYRIGHT - FULL TEXT OF LETTER AND RELATED MATERIALS *************************************************************************** ALA SUMMARIZES DISAGREEMENTS WITH "GREEN PAPER" ON COPYRIGHT FULL TEXT OF LETTER AND RELATED MATERIALS (Continuation of report from ALAWON, Vol. 4, No. 17, Part 1.) BACKGROUND: The Green Paper was issued on July 7, 1994 as _Intellectual Property and the National Information Infrastructure: A Preliminart Draft of the Report of the Working Group on Intellectual Property Rights_. (For information about the report, contact NII, USPTO, Box 4, WAshington, DC 20231-0001, or call 703-305-9300.) More than 1000 pages of comments were filed on the draft report. ALA and other library groups testified at public hearings, filed comments, submitted reply comments, and have participated in fair use conferences facilitated by the PTO. The full text of the letter from the library groups follows: February 14, 1995 Ms. Sally Katzen Administrator Office of Information and Regulatory Affairs Office of Management and Budget Old Executive Office Building 17th and Pennsylvania Avenue, N.W. Washington, D.C. 20503 Mr. Bruce A. Lehman Commissioner of Patents and Trademarks Patent and Trademark Office Crystal Park Arlington, VA 22202 Dear Administrator Katzen and Commissioner Lehman: We are writing to express our continuing concern about press and other reports that the recommendations in the final version of the "Green Paper" by the Working Group on Intellectual Property Rights will not be significantly different from the preliminary version released in July 1994. A December 27 Wall Street Journal article stated: "Mr. Lehman said the final report in March or later will be similar to the draft, which drew more comments than expected." The same article said that Mr. Lehman viewed various critiques of the Green Paper as "misunderstandings." More recently, at a January 4 meeting of the Working Group's deliberations on fair use, Terri Southwick, a member of the Working Group confirmed the Journal's account by saying the Working Group did not envision any need for significant changes to the final report. These statements are troubling to our organizations, which have a long history of involvement in the development of equitable national copyright policies. From the outset, the American Library Association, the Association of Research Libraries, the American Association of Law Libraries, the Association of College and Research Libraries, the Medical Library Association, the Association of Academic Health Sciences Library Directors, the Special Libraries Association, and the Association of American Universities have commended the efforts of the Working Group to address the complex intellectual property challenges posed by new digital technologies. Yet we and others believe that the initial version of the Green Paper missed the mark on a number of key points and requires revision. Allow us to take this opportunity to summarize what we believe to be significant points of disagreement that various parties have expressed to the analysis in the initial version of the Green Paper. The memorandum that follows summarizes the concerns of a number of library and education groups and also refers to statements submitted in this proceeding by distinguished copyright experts and private sector entities. We would very much appreciate an opportunity to meet with you to clarify whether or not these statements by members of the Working Group continue to reflect the Working Group's deliberations and to address our continuing concerns with the proposed recommendations. It is our hope that the final version of the Green Paper will take these serious concerns by a diverse array of public and private sector enterprises into consideration thus leading to needed changes in the proposed draft recommendations. Sincerely, Robert L. Oakely Washington Affairs Representative, AALL Arthur Curley, President, ALA Karen Brewer President, AAHSLD John C. Vaughn Executive Officer and Director of Education Policy, AAU Susan K. Martin President, ACRL Duane E. Webster, Executive Director, ARL Carla Funk Executive Director, MLA David R. Bender Executive Dirctor, SLA Attachment THREE KEY CONCERNS OF LIBRARIES AND OTHER PUBLIC AND PRIVATE SECTOR ORGANIZATIONS IN RELATION TO THE "GREEN PAPER" General This memorandum summarizes three key concerns of library, educational, and corporate organizations, as well as those of selected distinguished experts, regarding the preliminary draft of the report --Intellectual Property and the National Information Infrastructure-- (the "Green Paper"), prepared by the Working Group on Intellectual Property Rights, under the direction of Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks. The statements outlined here were taken from prepared comments submitted to the Working Group. This memo focuses on fair use, electronic transmission rights, and the first sale doctrine. In each of these areas, the concerns of the library groups--the American Library Association, the Association of Research Libraries, the American Association of Law Libraries, the Association of College and Research Libraries, the Medical Library Association, the Association of Academic Health Sciences Library Directors, and the Special Libraries Association; collectively referred to as The Libraries and the Association of American Universities (AAU) -- are presented first. These positions are followed by the comments of other parties, including the Clinton Administration's NII Advisory Council. The comments from other parties either match the concerns of the Libraries and AAU or raise similar concerns with the recommendations presented in the Green Paper. I. Fair Use The Libraries and AAU noted that by postponing its consideration of fair use, as well as of copyright exceptions for libraries and classroom instruction, the Working Group prevented complete analysis and public dialogue on legislative changes needed to achieve universal, equitable access to the new types of information that will be available over the NII. Nor does the draft report analyze the implications of the proposed recommendations on fair use nor indeed, the importance of fair use to research, education, and the creation of new knowledge. This failure to evaluate the impact of the new recommendations and the importance of fair use is a severe shortcoming of the draft report. The Working Group through the Green Paper is setting policy without the determination by Congress that the balance between copyright holders and users of copyrighted material should be adjusted. Many of the interested groups, including some proprietors, believe that fair use is working satisfactorily and that there is no need to revise the law. If there is need for a change in fair use, the Working Group should provide a better opportunity for discussion among all the interested parties. The Libraries and AAU have long argued the centrality of fair use in copyright policy making. In its recent Statement of Principles on Intellectual Property, the Association of Research Libraries stated: "Fair use and other relevant provisions are the essential means by which teachers teach, students learn, and researchers advance knowledge...These provisions apply to all formats and are essential to modern library and information services." After the Green Paper was released, subcommittees were formed to discuss and consider the development of new fair use guidelines in a variety of settings. Library organizations and many others have contributed a great deal of valuable research and commentary to the work of these subcommittees. We understand that the final version of the Green Paper will include some of the subcommittees deliberations. But we believe that the final report will need to go far beyond those discussions and provide a thorough and complete analysis of the impact of the proposed recommendations on fair use and the importance of retaining a balanced system of access to information. This position was also taken by the NII Advisory Council, which in its December 1994 Response to the Green Paper, stated its "concern that the application of fair use in the NII environment be adequately explored in the Working Group's final report." The U.S. Copyright Office expressed concern that the Working Group seemed to think that fair use in the electronic environment is reserved for the "have nots." It recommended that more effort be made to see that the interests of "authors, publishers, scholars, librarians, information technology service providers, and public and government policy makers" are all represented. We share the concern of the U. S. Copyright Office. Not only does the Green Paper fail to acknowledge the balance established by the law between users and holders, but it attempts to set new policy by suggesting that fair use is reserved for the "have nots." We believe that such a scheme is unworkable. Who will qualify as a "have not" whose use of copyrighted materials is permissible: school children; the unemployed; or, those whose income places them below the poverty line? The significance of fair use was also emphasized by some of the private-sector comments. McGraw-Hill, Inc., noting that its journalists "make extensive fair use of copyrighted materials in their daily news gathering efforts," stated that fair use will be important to the development of the NII. The Alliance to Promote Software Innovation stated: "It is our view that the NII does not alter the public policy considerations which led to the creation of these [fair use] rules. We encourage you to expand the scope of your analysis to cover a broader range of fair use considerations." II. Transmission Right * Calls for Greater Balance of the Competing Interests The Libraries and AAU argued that the initial Green Paper went too far in extending the exclusive rights of copyright holders and paid only superficial attention to the needs of users of electronic information. As Laura Gasaway, Professor of Law and Director of the Law Library at the University of North Carolina at Chapel Hill, said in her comments: "Whatever changes are made must take into account not only the copyright owner's rights and interests but those of the general public, educational users, scholars and researchers." * Historic Impact of Proposed Statutory Changes Jessica Litman, Professor of Law at Wayne State University, and other legal experts have argued that the positions taken in the initial Green Paper would change the reproduction right into something more encompassing than has ever existed. "U.S. copyright law," Litman wrote, "has always given copyright owners some form of exclusive reproduction right. It has never before now given them an exclusive reading right, and it is hard to make a plausible argument that Congress would have enacted a law giving copyright owners control of reading." * Transmissions as Copies The Green Paper states that it is technologically impossible to distribute a work over the NII without making a copy. However, the U.S. Copyright Office states that "in the future it may be possible to distribute live performances and other transmissions without making a copy... The Working Group should consider whether all transient copies would infringe the reproduction right and whether they should be covered by an expanded distribution right." The Home Recording Rights Coalition (whose members include retailers and manufacturers of audio and video recording products as well as consumers) argued that "the proposal for a new [transmission] right seems superfluous in light of courts' acceptance of such a right under current law. Such a provision could be interpreted so as to reclassify acts of distribution as reproductions, effectively rescinding existing consumer rights under the fair use and first sale doctrines." IBM noted that the Green Paper's inclination to designate a given transmission as either a copy or a performance may be too inflexible, while Pamela Samuelson, Professor of Law at the University of Pittsburgh, stated: "Adoption of the digital transmission right would, in effect, repeal the public performance and display rights of copyright and replace them with exclusive rights to control all performances and displays of copyrighted works distributed in digital form...[T]he Report does not make a persuasive argument on behalf of this vast expansion of the rights of copyright owners." * Primary Purpose Test The NII Advisory Council criticized the Green Paper's attempt to designate a transmission either as a distribution of a copy or a performance and rejected the paper's "primary purpose or effect" test for distinguishing between transmission of reproductions and performance. ASCAP disputed the practicality of the primary purpose test, arguing that the Green Paper's statement that only one of these rights should be recognized is seriously flawed. BMI also criticized the proposed test, arguing that it would not serve creators' ability to subdivide and license the right to their works profitably, nor benefit the public. The U.S. Copyright Office commented that this test would be difficult to administer since it would require determining the intent of the sender and, in addition, would lead to much litigation. * Unintended Effects of Proposed Changes, including definitional change The U.S. Copyright Office, for example, stated: "Modifying the concepts of publication and transmission is not minor; the proposed amendment would have broad ramifications throughout the copyright law--e.g., applicability of the digital audio technology system, fair use and library reproduction under Sec. 108." The Public Broadcasting Service said that since the proposed amendment to the definition of "publication" would apply to some but not all transmissions, this would "lead to confusion, uncertainty, and litigation." * Coverage of Online Services Comments submitted jointly by America Online, Inc. CompuServe, Inc., Delphi Internet Services Corp., GE Information Services Inc., LEXIS, Prodigy Services Co., and Ziff Communications Co. criticized the Green Paper for failing to address the issue of whether online service providers are responsible for copyright violations by users of their services. A partial list of their recommendations included: the Working Group must reach a proper balance among the rights and interests of creators, consumers, and service providers; it should recommend no legislative change that would result in stifling the growth of online services; it should examine whether and when service providers should be held liable for copyright infringement; and the liability standard under the U.S. Copyright Act should be amended to be consistent with the existing standards for contributory liability. Bell Atlantic also criticized the failure of the Green Paper to address criteria for network liability. Specifically, it argued that concepts of vicarious and contributory infringement should be subject to a requirement of willful or knowing conduct. III. First Sale * Objection to Proposed Change The Libraries and AAU strongly opposed the abolition of the first sale doctrine for electronic information. As the American Library Association stated: "Elimination of the first sale doctrine would effectively give copyright owners control of the secondary market, and thus empower them with far too great a monopoly. The effect would be to reduce competition and advance inequities in access--with results antithetical to the intent of copyright and the working group's stated intentions." Others also had problems with the Working Group's position. Bell Atlantic maintained that elimination of the first sale doctrine for electronic transmission would be bad for business: "Eliminating the first sale doctrine in cases of transmissions would mean that any further disposition of the products listed in the above examples would constitute an infringement. The disposition of such products purchased in a store, however, would continue to be a permitted right under the first sale doctrine. This nonsensical outcome indicates that the test should not focus on whether the owner retains the original work but whether the work received via transmission was intended for subsequent use (a purchase) or licensed for a limited use only. The recommendation to eliminate the first sale doctrine runs counter to the notion of letting the market govern itself." The Association of American Universities said it is easy to imagine circumstances in which the person who possesses a copy passes it on to another and does not retain a copy; in such cases, the right of first sale should apply. The Information Industry Association urged the Working Group to consider how the term "dispose" in the Copyright Act could be interpreted to cover cases in which the first owner of a digital works relinquishes physical control over, or access to his or her copy. Time Warner stated that it may not be necessary to amend the law in this area: "Either by relying on the reproduction right or with the clarification of the distribution right to include copies sent by transmission, current law for first sale would appear adaptable to the electronic environment." * Inconsistent Consequences The U.S. Copyright Office said that under the proposed modification, "transfer of the material object would be permitted, while transfer over the infrastructure would be prohibited. From a practical point of view, whether a disc is mailed or a copy is sent over the information infrastructure should not make any difference in the way the transfer is treated under copyright law." National Public Radio advised that, "by broadening the term 'transmit' and using that term to describe a new type of distribution right, the Working Group's proposal could generate confusion in an already complex area of the law and potentially create new liability for existing broadcast uses of copyrighted works." The Online Service Providers said: "The Working Group should not propose new rights for copyright owners without considering whether such rights would have an adverse effect on providers' operations and would delay or economically burden users' access to technology." The technologies underlying online transmission networks include wireless distribution channels, cable television, personal computers, satellite channels and other emerging interactive systems. Conclusion This memo has attempted to summarize the views on several key issues of many parties both public and private that believe that the initial Green Paper, while notable for trying to tackle difficult and complex issues, did not present a complete and balanced presentation of the issues regarding copyright and electronic networks. Library community, industry representatives, and copyright experts were among those calling for significant modifications to the Green paper draft recommendations. The Working Group on Intellectual Property is engaged in an historic task of recommending changes to the nation's copyright laws to reflect the dramatic changes in technology we are experiencing. These changes are complicated, and they affect intellectual property in varied and unexpected ways. Therefore, we urge the Working Group to give full consideration to all the arguments that have been presented and to reflect these arguments in revised recommendations included in the final report. __________________________________________ THE AMERICAN ASSOCIATION OF LAW LIBRARIES - AALL is a nonprofit educational organization with over 5,000 members dedicated to serving the legal information needs of legislators and other public officials, law professors and students, attorneys, and members of the general public. THE AMERICAN LIBRARY ASSOCIATION is a non-profit educational organization of 55,000 librarians, library educators, information specialists, library trustees, and friends of libraries representing public, school, academic, state, and specialized libraries dedicated to the improvement of library and information services. A new five-year initiative, ALA Goal 2000, aims to have ALA and librarianship be as closely associated with the public's right to a free and open information society -- intellectual participation -- as it is with the idea of intellectual freedom. THE ASSOCIATION OF ACADEMIC HEALTH SCIENCES LIBRARY DIRECTORS is composed of the directors of 142 accredited U.S. and Canadian medical schools belonging to the Association of American Medical Colleges. AAHSLD's goals are to promote excellence in academic health sciences libraries and to ensure that the next generation of health practitioners is trained in information-seeking skills that enhance the quality of health care. THE ASSOCIATION OF AMERICAN UNIVERSITIES was founded in 1900 by a group of fourteen universities offering the Ph.D. degree. The AAU currently consists of fifty-six American universities and two Canadian universities. Approximately half are public institutions and half are private. The Association serves its members in two major ways. First, it assists them in developing national policy positions on issues that relate to academic research and graduate and professional education. Second, it provides them with a forum for discussing a broad range of other institutional issues, such as undergraduate education. THE ASSOCIATION OF COLLEGE AND RESEARCH LIBRARIES is a division of the American Library Association with more than 10,000 organizational and personal members. The mission of ACRL is to foster the profession of academic and research librarianship and to enhance the ability of academic and research libraries to serve effectively the library and information needs of current and potential library users THE ASSOCIATION OF RESEARCH LIBRARIES is a not-for-profit organization representing 119 research libraries in the United States and Canada. Its mission is to identify and influence forces affecting the future of research libraries in the process of scholarly communication. ARL programs and services promote equitable access to and effective use of recorded knowledge in support of teaching, research, scholarship, and community service. THE MEDICAL LIBRARY ASSOCIATION is a professional organization of more than 5,000 individuals and institutions in the health sciences information field. MLA members serve society by developing new programs for health sciences information professionals and health information delivery systems, fostering educational and research programs for health sciences information professionals, and encouraging and enhanced public awareness of health care issues. Through its programs and publications, MLA encourages professional development in research, education, and patient care. THE SPECIAL LIBRARIES ASSOCIATION is an international professional association serving more than 14,000 members of the information profession, including special librarians, information managers, broker, and consultants. The Association has 56 regional/state chapters in the U.S., Canada, Europe, and the Arabian Gulf States and 28 divisions representing subject interests or specializations. Special libraries/information centers can be found in organizations with specialized or focused information needs, such as corporations, law firms, news organizations, government agencies, associations, colleges, museums, and hospitals. *************************************************************************** *************************************************************************** ALAWON (ISSN 1069-7799) is an irregular publication of the American Library Association Washington Office, 110 Maryland Avenue, N.E., Washington, DC 20002-5675. Internet: alawash@alawash.org; Phone: 202-547-4440; Fax: 202-547-7363. Contributing to this issue: Carol C. Henderson; Editor: Lynne E. Bradley (leb@alawash.org). ALAWON is available free of charge and is available only in electronic form. To subscribe, send the message "subscribe ala-wo [your name]" to listserv@uicvm (Bitnet) or listserv@uicvm.uic.edu (Internet). Back issues and other documents are available from the list server. To find out what's available, send the message "send ala-wo filelist" to the listserv. The ALA-WO filelist contains the list of files with the exact filename and filetype. To get a particular file, issue the command "send filename filetype" to the listserv. Do not include the quotes in your commands. All materials in the newsletter subject to copyright by the American Library Association may be reprinted or redistributed for noncommercial purposes with appropriate credits. For other reprinting or redistribution, address requests to the ALA Washington Office (alawash@alawash.org). *************************************************************************** ***End of file******************End of file******************End of file***