ALAWON v7, n 125 - COPYRIGHT BILLS PASS CONGRESS (fwd)

From: Shelly Warwick <swarwick[_at_]sprynet.com>
Date: Thu, 15 Oct 1998 11:58:15 -0400

Message forwarded by Shelly Warwick <swarwick[_at_]sprynet.com>

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ALAWON                                       Volume 7, Number 125
ISSN 1069-7799                                   October 13, 1998

     American Library Association Washington Office Newsline

In this issue: (217 lines)

[1] WIPO COPYRIGHT TREATY AND TERM EXTENSION BILLS CLEAR

     CONGRESS; DANGEROUS DATABASE BILL DERAILED BUT BOUND TO
     RETURN IN 1999

[2] DIGITAL MILLENNIUM COPYRIGHT ACT GUIDE [3] COPYRIGHT TERM EXTENSION ACT GUIDE

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[1] WIPO COPYRIGHT TREATY AND TERM EXTENSION BILLS CLEAR

     CONGRESS; DANGEROUS DATABASE BILL DERAILED BUT BOUND TO
     RETURN IN 1999

By separate voice votes taken on October 12 and 7 respectively, both chambers of Congress have approved the conference report (105-796) on the Digital Millennium Copyright Act (H.R. 2281) and on identical versions of the Copyright Term Extension Act (S. 505). President Clinton has indicated that he will sign the bills.

Those actions bring to a close more than three years of intensive work by ALA, library supporters and other groups to shape the national and international debate over how best to update the nation's copyright laws for the digital age. Significantly, the H.R. 2281 conference committee deliberately elected not to include in its report the Collections of Information Antipiracy Act (S. 2291/H.R. 2652), a proposal to provide sweeping new legal protection for collections of information, including those not presently protected by copyright.

While the legislative debate about how to implement the new WIPO copyright treaties and whether to add 20 years to the term of copyright protection may be over, both bills as finally adopted present ongoing opportunities and pitfalls for libraries, archives and educational institutions. Moreover, fierce legislative debate over database protection is expected to resume in earnest shortly after the new 106th Congress convenes in late January 1999.

Here is a brief guide to what Congress has done in the Digital Millennium Copyright Act and the Copyright Term Extension Act ... and left libraries to do in the future:

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[2] DIGITAL MILLENNIUM COPYRIGHT ACT GUIDE PURPOSE: Update the current Copyright Act for the digital environment and conform U.S. law to the requirements of new World Intellectual Property Organization (WIPO) treaties negotiated in Geneva in December 1996.

FUTURE LIBRARY ROLE: As detailed below, assuring that all kinds of copyrighted works remain available for fair use (and other lawful uses). The adoption of the Digital Millennium Copyright Act could depend in large part upon the success of librarians and library supporters in collecting and organizing evidence of the law's adverse or potentially adverse effects. In addition, librarians will have the opportunity to assist the Register of Copyrights in making recommendations to Congress early in 1999 as to whether (and, if so, how) the Copyright Act should be updated to better facilitate distance education.

KEY PROVISIONS: ALA, together with other major national library associations and its partners in the Digital Future Coalition, has struggled to maintain the traditional balance in copyright law between protecting information and affording access to it by: 1) helping Congress to craft entirely new law with this balance in mind; and 2) updating information users' existing rights and privileges to take changed technologies and practices into account. These efforts necessarily implicated many parts of the Digital Millennium Copyright Act identified with separate headings below:

TITLE I: NEW PROHIBITIONS ON CIRCUMVENTION OF PROTECTION TECHNOLOGIES

• Prohibits the "circumvention" of any effective "technological protection measure" (e.g., a password or form of encryption) used by a copyright holder to restrict access to its material;
• Prohibits the manufacture of any device, or the offering of any service, primarily designed to defeat an effective "technological protection measure;"
• Defers the effective date of these prohibitions for two years and 18 months, respectively;
• During those two years, and then every three years thereafter, requires the Librarian of Congress (through the office of the Register of Copyrights), to conduct a formal "on the record" rulemaking proceeding to determine whether the "anti-circumvention" prohibition will "adversely affect" information users' (both individuals and institutions) "ability to make noninfringing uses" of "a particular class of copyrighted works" (NOTE: the term "class" was deliberately left undefined, but is intended to be fairly narrow, e.g., history texts, digital maps, or personal finance software);
• Requires that the Librarian issue a three-year waiver from the anti-circumvention prohibition with respect to any class of work to which the new law has adversely affected (or is likely to affect) access for fair use and other noninfringing uses;
• Exempts nonprofit libraries, archives and educational institutions from criminal penalties and allows for nullification of any civil fine when such an institution can demonstrate that it had no reason to be aware that its actions violated the new law;
• Expressly states that many valuable activities based on the Fair Use Doctrine (including reverse engineering, security testing, privacy protection and encryption research) will not constitute illegal "anticircumvention;"
• Makes no change to the Fair Use Doctrine, or to other information user privileges and rights;

TITLE II: LIMITATIONS ON ONLINE SERVICE PROVIDER LIABILITY

• Exempts any "online service provider" or carrier of digital information (including libraries) from copyright liability based solely on the content of a transmission made by a user of the provider's or carrier's system (e.g., the user of a library computer system);
• Establishes a mechanism for avoiding copyright infringement liability based upon the storage of infringing information on an online service provider's own computer system, or upon the use of "information location tools" and hyperlinks, if the provider acts "expeditiously to remove or disable access to" infringing material identified in a formal notice by the copyright holder.

TITLE IV: INCLUDES DIGITAL PRESERVATION AND DISTANCE EDUCATION

     
     DIGITAL PRESERVATION



     *    Updates the current preservation provision of the

          Copyright Act (Sec. 108) to:
          -- expressly permit authorized institutions to make up
          to three, digital preservation copies of an eligible
          copyrighted work;
          -- electronically "loan" those copies to other
          qualifying institutions;
          -- permit preservation, including by digital means,
          when the existing format in which the work has been
          stored becomes obsolete.

     DISTANCE EDUCATION



     *    Charges the Register of Copyrights with reporting to

          Congress within six months of the bill's effective date
          on "how to promote distance education through digital
          technologies";


     *    Encourages the Register to formulate such

          recommendations as statutory proposals


     *    Specifies eight factors to be considered by the

          Register, including: "the extent to which the
          availability of licenses for the use of copyrighted
          works in distance education through interactive digital
          networks should be considered in assessing eligibility
          for any distance education exemption...." 
_________________________________________________________________

[3] COPYRIGHT TERM EXTENSION ACT GUIDE PURPOSE: To extend by 20 years the length of protection afforded to works created by both individuals and corporate copyright holders.

FUTURE LIBRARY ROLE: By taking full advantage of the limited but important exemption described below, libraries, archives and nonprofit educational institutions can minimize the practical impact of this unfortunate legislation.

KEY PROVISIONS:

• Extends the term of copyright from "life +50 years" to "life +70 years" for individual authors and to 95 years from 75 years for corporate "creators";
• Applies both prospectively and to all works still under copyright on the bill's effective date;
• Includes an exception permitting libraries, archives and nonprofit educational institutions to treat a copyrighted work in its last (new) 20 years of protection as if it were in the public domain for noncommercial purposes, provided that: 1) a good faith investigation has determined that the work is "not subject to normal commercial exploitation," and 2) such use of the work stops if the copyright owner provides notice to the contrary (even if the work had never before been exploited).

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Received on Thu Oct 15 1998 - 16:03:25 GMT