[DMCA-Activists] ALA Newsline: Status of Legislative Issues

[Seth Johnson]

-------- Original Message --------
Subject: [ALA-WO:777] INFO: Wrap-up: Status of Library
Legislative Issues
Date: Wed, 27 Nov 2002 12:05:41 -0500
From: "ALAWASH E-MAIL" <address@hidden>
To: ALA Washington Office Newsline <address@hidden>

ALAWON: American Library Association Washington Office
Newsline
Volume 11, Number 97
November 27, 2002

In This Issue: 
Wrap-Up: Status of Library Legislative Issues 

The November election will finally end after the Louisiana
run-off scheduled for mid-December, where Senator Mary
Landrieu faces Suzanne Haik Terrell, and a Republican
majority will occur in both House and Senate in the 108th
Congress.  The Senate passed the Homeland Security
legislation that the House had previously passed
(H.R.5005/H.R. 5710), and the President signed the
legislation on November 25.  

Another Continuing Resolution will carry spending for
government at FY2002 levels until January 11, and the
beginning of the new Congress.  Some resolution of the
appropriations stalemate may occur during December so that
the funding bills can be rolled into an omnibus
appropriations bill and passed in January, before the new
budget is suggested by the President for FY2004, and/or
another Continuing Resolution may be passed when Congress
returns on January 11. 

Appropriations: It is expected that some compromise will be
reached during December or early January that will enable
Congress to finalize the remaining eleven appropriations
bills for FY2003.  Several of the bills have reached the
point of conference, but the Labor, HHS Education
appropriations bill has only been reported out for the
Senate appropriations subcommittee.  Differences between the
Senate numbers and the President's budget were large,
however, government spending will have been allocated at the
FY2002 level for four months, therefore saving some funds. 
Funding will be needed for the new Homeland Security agency
as well, so an omnibus appropriations bill may be the route
that Congress chooses to take.

Museum and Library Services Act of 2002: The Museum and
Library Services Act of 2002 of which the Library Services
and Technology Act is a part, was not passed during the
107th Congress.  Thanks to all for the efforts in 2002 to
bring this legislation to completion.  In the House, there
were 94 bi-partisan sponsors.  The bill passed unanimously
in the House Subcommittee and full Education and the
Workforce Committee.  However, it was never voted on by the
full House.  In the Senate, the legislation had 21
bi-partisan sponsors but was never voted on by the full
Senate Health, Education, Labor and Pensions Committee. 

Efforts will begin again in January to obtain sponsors, bill
introduction and early passage.  It is hoped that the Museum
and Library Services Act can be dealt with quickly at the
beginning of the 108th Congress, since both House and Senate
Committees will have a large number of pieces of legislation
to consider-reauthorization of welfare, Individuals with
Disabilities and the Higher Education Act reauthorization.  
OERI Reauthorization: P.L. 107-279, H.R. 3801--The
reauthorization and reorganization of OERI was signed by the
President on November 5.  The legislation creates an
Institute of Education Sciences that replaces and
reconstitutes the Office of Educational Resources and
Information.  It establishes within the Institute a National
Center for Education Research that would carry out research
on successful state and local education reform activities,
including increasing student achievement; impacts and uses
of technology in education; and improved methods of
mathematics and science teaching for use in elementary and
secondary classrooms, including in low-performing schools. 
There will be at least eight national research and
development centers.  Also included in the Institute would
be a National Center for Education Statistics.  A National
Center for Education Evaluation and Regional Assistance
would also be established in the Institute-ERIC
Clearinghouses and regional educational laboratories would
be under this department as would the National Library of
Education.  Title III of the legislation authorizes the
National Assessment of Educational Progress.                                    
                                        
COPYRIGHT IN 2002-03

 . . . in the 108th U.S. Congress

When the 108th Congress opens in January 2003, copyright
issues of vital importance to libraries will be high on the
agenda.  

Database Proponents of database protection legislation will
continue their efforts to introduce a bill, not only in the
House of Representatives, where intensive negotiating
sessions have taken place over the past year and a half, but
in the Senate as well.  ALA insists that any database
protection bill must allow "fair use" of databases
comparable to that under copyright law and must permit
re-use of facts and government-produced data contained in a
database.

Copyright Protection Legislation Proponents of legislation
to permit copyright owners to control access to and
downstream use of their products are aggressively pushing
for help from Congress. We have been following several bills
in the 107th Congress that would undermine the careful
balances of the copyright law and we fully expect the bills
to be re-introduced in the new Congress

"The Berman-Coble Bill"- Introduced in July 2002, H.R. 5211
would permit a copyright owner to use a variety of
technological remedies to "prevent infringement" of
copyrighted works, including using "self-help" to block
alleged illegal file-sharing on peer-to-peer computer
networks.  

S. 2395, the Anti-counterfeiting Amendments of 2002 -  The
bill, introduced in April by Senator Biden (D-DE), creates
liability for trafficking in illicit authentication
features-a hologram, watermark, certification, symbol, code
or other means of designating that the product to which the
authentication feature is affixed is authentic - and could
pose major problems for anyone exercising fair use.  

"The Broadcast Flag Bill" - The Consumer Broadband and
Digital Television and Promotion Act (S. 2048), introduced
by Sen. Hollings (D-SC), requires digital content, consumer
electronics and information technology industries to, in
effect, place a broadcast flag - a type of digital rights
management - in all "digital media devices" to prevent
piracy.  Although the Senate bill garnered broad opposition,
the House has moved forward with drafting a similar bill.  

Fair Use Bills

On the positive side, in October Reps. Boucher (D-VA) and
Doolittle (R-CA) introduced the "Digital Media Consumers'
Rights Act" (DMCRA), H.R. 5544, a bill that proposes three
key changes to sections of the flawed Digital Millennium
Copyright Act (DMCA) of 1998. This bill reaffirms fair use
in the digital environment. Although the bill primarily
focuses on the concerns of consumers, it is an important
first step in recognizing the rights of copyright users. 
Libraries strongly support this bill.

Also in October, Rep. Lofgren (D-CA) introduced H.R. 5522,
the "Digital Choice and Freedom Act of 2002," signaling to
Congress that copyright law must be recalibrated to restore
consumer and public rights.  Libraries will be working with
Rep. Lofgren and other members of Congress to achieve this
goal.  

 . . . in the courts

On the litigation front, we may not see another case going
to the Supreme Court in 2003.  (ALA filed a "friend of the
court" brief for the second year in a row, this time in the
Eldred copyright term extension case.)  Nevertheless, there
are a number of cases brewing in the lower courts that deal
directly or indirectly with copyright matters, including
digital rights management (technological locks) under the
Digital Millennium Copyright Act and the validity of
"shrink-wrap" licenses that attempt to override copyright
law.  

. . . in the states

UCITA - the Uniform Computer Information Transactions Act -
is a proposed state contract law which would permit an
end-run around federal copyright law in mass-market
licensing agreements.  Such licenses are used by virtually
all consumers and are the mainstay of most library and
business operations.  UCITA has not passed anywhere since
2000 (when it passed in Maryland and Virginia), in large
part thanks to library advocacy, thus there is considerable
pressure on the proponents of UCITA to have some legislative
success. We expect that 2003 will be a decisive year for
UCITA.

. . . in the Copyright Office

The U.S. Copyright Office is embarking on a rulemaking,
under the Digital Millennium Copyright Act of 1998 (DMCA),
to determine potential exemptions to the Section 1201
prohibition on circumvention of technological measures that
control access to copyrighted works.  Violators of the
anti-circumvention provision are subject to civil and
criminal penalties.  At the same time, however, the law
provides that there can be exemptions from the prohibition
for users of "classes of works" who would be "adversely
affected by virtue of such prohibition in their ability to
make non-infringing uses" of those works.  These exemptions
were to be designated in a Rule issued by the Copyright
Office initially by October 28, 2000, and then every three
years thereafter.

The Rule issued by the Librarian of Congress in 2000 set out
only two "classes of works" subject to the exemption from
the prohibition on circumvention:   

1. Compilations consisting of lists of Web sites blocked by
filtering software applications; and 

2. Literary works, including computer programs and
databases, protected by access control mechanisms that fail
to permit access because of malfunction, damage or
obsolescence. 

A forthcoming issue of ALAWON will cover government
information and access issues.

******
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ALA Washington Office, 1301 Pennsylvania Ave., N.W., Suite
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