ARCHIVED: Testimony Regarding Implementation of the December 1996 WIPO Copyright and Phonograms Treaties

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TESTIMONY REGARDING IMPLEMENTATION OF
THE DECEMBER 1996 WIPO
COPYRIGHT AND PHONOGRAMS TREATIES

UNITED STATES HOUSE OF REPRESENTATIVES
COMMERCE COMMITTEE
SUBCOMMITTEE ON TELECOMMUNICATIONS,
TRADE AND CONSUMER AFFAIRS

PRESENTED ON BEHALF OF THE
AMERICAN ASSOCIATION OF LAW LIBRARIES
AMERICAN LIBRARY ASSOCIATION
ASSOCIATION OF RESEARCH LIBRARIES
MEDICAL LIBRARY ASSOCIATION
SPECIAL LIBRARIES ASSOCIATION

ORAL STATEMENT BY
PROF. ROBERT L. OAKLEY, LIBRARY DIRECTOR
GEORGETOWN UNIVERSITY LAW CENTER
JUNE 5, 1998

Good morning. My name is Robert Oakley. I am the Director of the Law Library and Professor of Law at the Georgetown University Law Center. I also serve as Washington Affairs Representative for the American Association of Law Libraries. I am honored to appear before the Committee today not only behalf of AALL, but for several other major library organizations, and -- in a very real sense -- for the public interest as well.

Good morning. My name is Robert Oakley. I am the Director of the Law Library and Professor of Law at the Georgetown University Law Center. I also serve as Washington Affairs Representative for the American Association of Law Libraries. I am honored to appear before the Committee today not only behalf of AALL, but for several other major library organizations, and -- in a very real sense -- for the public interest as well.

The task before this Subcommittee is compelling and urgent. H.R. 2281 and its companion bill in the Senate are among the most complex and challenging pieces of legislation before this Congress. They attempt to fashion a new law to implement international treaties and to advance cybercommerce. However, in advancing these worthy goals, the anti-circumvention provisions of the bill establish a broad and unqualified new right to control access to information. This new right represents a momentous change in America's policy toward libraries and education, just when we are striving to bring the Internet and its benefits to America's educators. We are looking to this Subcommittee to limit this sweeping new right in the public interest in the same way that Congress counterbalanced every other such right in our Copyright law. As it stands now, H.R. 2281 could convert America's libraries from shared resources for a community into pay-per-view information outlets.

Traditionally, libraries have purchased billions of dollars of works to afford students, small businessmen and women, researchers, and educators no-fee access to works they otherwise could not afford. By access, I mean the right to read and, even more simply, the right to browse published works. Taken another step, it means the right to use works in ways currently allowed by exemptions and limitations in copyright - mainly fair use, first sale, library preservation, and classroom teaching. The ability of students, teachers, and others to use works in these ways fuels the creative engine of America which in turn promotes commerce. As an alternative to H.R. 2281, the Library community supports H.R. 3048 which would also implement the WIPO treaty, but which would address the various concerns we have with the proposal before you today.

The urgent issue now is how to strike the proper balance between protecting digital works from unfettered duplication while permitting library patrons no-fee access to works lawfully acquired. We all understand that unauthorized digital copying can lead to piracy of legitimate publishers. America's libraries depend on the well-being of those publishers. Throughout our history, libraries have been the most voracious lawful acquirers of published works. Each year, our institutions spend over $2 billion supporting the publishing community. No one can accuse America's libraries of not paying their fair share in rewarding copyright creativity. America's libraries have long acquired the right to allow their patrons to enter the library's facilities and to access the works and use them as allowed by copyright laws. Now, this legislation lays the foundation for a pay-per-view system of retrieving digital information. It does this by making circumvention of technological protection measures the punishable act, even for those who have legitimate, non-infringing motives. No exceptions. No qualifications.

The drafters of H.R. 2281 appear to have tried a modest sleight of hand by providing that "nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." [Section 1201(d)] While this seems to say that fair use and other limitations apply, the Register of Copyrights says that they do not. What it means is that after access is allowed, then the traditional defenses may apply. But if access is blocked in the first place, then no one even gets to the point of analyzing fair use. Simply accessing the work is the crime.

To preserve the commerce that flows from the lawful use of copyrighted works, we recommend a two part amendment to Section 1201 of H.R. 2281.

 

  • First, it is essential that the scope of proposed Section 1201(a)(1) be clarified to prohibit "circumvention" only "for the purpose of facilitating or engaging in an act of infringement. In other words the prohibition against infringement should apply to "bad acts," but should not apply to lawful uses, such as fair use.

     

  • Second, to ensure that section 1201(d) actually affords library patrons and others the opportunity to continue to use copyright information in the manner presently authorized by the Copyright Act, we recommend replacing the current language of that subsection with the following:

     

    "All rights, limitations and defenses available under this title, including fair use, shall be applicable to actions arising under this Chapter.

     

Simply stated, these changes would assure the continued vitality of the fair use doctrine as it is relied upon by thousands of Americans in libraries and educational institutions in every state in the nation.

 

* * *

We very much appreciate the efforts of subcommittee member Rep. Rick Boucher to address these and other issues in H.R. 3048, the Digital Era Copyright Enhancement Act, a bill sponsored by Rep. Boucher and Rep. Tom Campbell. This bill has strong support from a total of 50 bipartisan cosponsors, including ten from the Commerce Committee. The library and education communities strongly support H.R. 3048, as does the Digital Future Coalition, of which the library organizations are members. H.R. 3048 deals with such additional issues as distance learning, preservation, and first sale.

Thank you for the opportunity to testify on these important matters. I will be happy to try to answer any questions.

  1. Organizational biographies.
  2. AALL Resolution on the U.S. Congressional Serial Set and the
    Bound Congressional Record
    .
  3. Goals for Revising U.S.C. Title 44 to Enhance Public Access to
    Federal Government Information
    ,
    Developed by the Inter-Association Working Group on
    Government Information Policy, May 1997.
  4. Whoops, there goes another CD-ROM: Storing information on disk and tape is convenient, but how long will it last?, U.S. News & World Report, February 16, 1998.