Where Were You When the World Shifted?
Legislative Advocacy in a Time of Momentous Change1
by Robert L. Oakley2
Director of the Law Library and Professor of Law
Prepared for Presentation at the Annual Meeting of the
Association of College and Research Libraries
in Washington, D.C.
June 24, 1998
Good evening. I am honored to speak to you tonight about legislative advocacy. As I thought about this talk, I decided to give it the title: "Where Were You When the World Shifted? -- Legislative Advocacy in a Time of Momentous Change." That title catches the flavor of what I think is going on today. Many of the old assumptions about information and how it is distributed are changing. Many of the paradigms under which libraries have operated for over 100 years are shifting. It can no longer be business as usual for us in libraries, because when the dust settles, libraries will be operating in a very different environment than the one we have known before. This is the time when we need to be involved; this is the time when we are defining what libraries will be for the next generation or more.
I was asked to do two things in this talk - talk about some of the issues and also talk about lobbying. First I was asked to review for you some of the current issues in Congress and elsewhere. From that review, I believe it will be clear to you why I believe that this is such a critical time for us and our users. In doing this review, I will highlight four different national level issues - a proposed revision to the Federal Government Printing laws, several matters relating to copyright, a bill for the protection of databases that are not now protectible under copyright, and a national effort to rewrite the nation's commercial laws to include licensing of information. After discussing those national level issues, I will highlight more briefly some state issues. Then, I was told that some of you are working on some of the issues in your home states and that others of you will be visiting your representatives tomorrow and are wondering what to expect. I will talk briefly - but only briefly - about how to work on legislative issues and what you might encounter in your hill visits tomorrow.
So what are the issues that seem likely to have so much of an impact on how we do business?
Before I dive into the issues themselves, of which there are many, let me give you a mooring to hang on to. Why are so many fundamental changes under discussion right now? I can tell you in one word: Internet. Or two words: Electronic Dissemination. The development of the internet and new means for disseminating information electronically is causing a radical rethinking of publishing and information distribution in America. Publishers are wondering how they will make money in this new environment. They are also worried about how to protect themselves from piracy. Governments at all levels are making more information available over the Internet, but raising new issues of preservation and cost recovery. Libraries, too, are sorting out their role, expecting to take advantage of this new world of information, but wanting to do so in a way that doesn't break the bank.
So, let's tackle the issues. The first one I want to bring to your attention is an effort to reform the Federal Depository Library Program.
Many of your libraries participate in the Federal Depository Library Program. That program has been around for over 100 years and makes the publications of the Federal government available to selected libraries around the country for the use of their community. Even if your library isn't a depository, you probably take advantage of a nearby depository to make those publications available to your students. As you probably know, the Depository Program has been under attack from a variety of sources and faltering for a number of years. The publishing industry doesn't want the government to do anything that might compete with their desire to repackage and sell information to libraries. The Executive Branch of government has resented Congress' imposition of dissemination obligations on them and has raised a separation of powers Consititutional issue. The Judicial branch has had a waiver for the publication of their opinions for many years. Even Congress, whose program it is, has kept the funding for the program level for at least a decade and a half. Clearly, this program is in trouble.
As if that wasn't bad enough, the development of the Web and other systems for electronic dissemination have raised a host of other questions. Will electronic materials be made available to Depository Libraries? If so, how? What if the electronic information requires proprietary software for its use? What if the agency charges for access to their system? Will those charges be passed on to the library or to the user? How will the information be preserved for future generations of researchers?
These issues represent fundamental challenges to the future of the Depository Library Program in the digital age. To deal with these questions, an inter-association working group, including representatives of ALA, AALL, ARL, COSLA, MLA, and SLA, was appointed in January of 1997. That group has worked very closely within their associations and with Congressional staff to fashion a bill that will carry the program into the future. That bill is being introduced by Senators Warners and Ford this week.
The stated goals of this new bill are to enhance public access to government information in all formats from all three branches of government, to strengthen the Federal Depository Program, and to ensure that the public has continuous and permanent access to electronic government information.
To deal with the separation of powers question, the new bill would eliminate the Joint Committee on Printing and transfer the oversight functions performed by that committee either to GPO or to oversight committees in the House and Senate. GPO would be reorganized to have an agency head and two co-equal superintendents: one for publication and production and another for access. Each of these three positions would be Presidentially appointed.
Whereas in the current law, the definition of publication seems like it might exclude electronic services or information on a website, the new bill would broaden the definition to make sure that it includes publications in any form or format and publications from all three branches of government. It includes a system of notification to enable the Superintendent to identify publications to be included in the program, and it provides for strong enforcement mechanisms to ensure agency compliance and minimize the fugitive documents problem. Finally, it includes a requirement of permanent public access to electronic information and requires the Superintendent for Publications Access to establish a committee to make recommendations on the creation of a system to accomplish that objective within two years. In the meantime, agencies are required to maintain their files themselves and provide for permanent access.
This bill is new, but it is an important step in dealing with many of the issues that have surrounded the Depository Library Program in recent years. Unfortunately, it is being introduced late in the current Congress. If it is to have any chance at passing, it will need to generate a lot of support very quickly.
Now let me move on to copyright. I will have to spend a bit of time on this and cover several interconnected issues.
The first copyright issue I want to talk about is term extension. As you know, the copyright system grants a series of rights to copyright owners and then limits those rights, in the public interest, with such things as fair use, some limited excemptions for libraries, and so on.
One of the most basic limits on the rights of creators is the length of the copyright term. It started out in 1789 as a fourteen year, renewable term. Over the years, however, it has gotten longer and longer -- first to a 28 year renewable term, and then up to 75 years, total. The 75 year term still applies to most older works, but for new works, the term is now the life of the author plus 50 years. To me, life plus 50 already goes well beyond what is needed for an incentive to create -- well beyond being a reasonable period to exploit a work -- and well beyond being a limit on the rights of creators. Now it is really just a limit on the ability of the heirs to benefit from the work of their ancestor.
Despite the existence of Copyright terms that extend well beyond the life of the creator, a bill was introduced in the last Congress3 to extend the term of copyright by an additional 20 years. For new works, such a change would result in a term of the life of the author plus 70 years. For many older works not yet in the public domain, the new maximum would be 95 years, and works published in the 1920's and 30's would not come into the public domain for an additional 20 years. In effect, this proposal would create a 20 year moratorium on any new works entering the public domain.
The stated reason behind term extension is "international harmonization." A few European Countries have begun to migrate to the longer term, and it is argued that without a similarly longer term in the United States, our authors will be disadvantaged. Perhaps more important for U.S. political purposes is the fact that the film industry and the music industry are both strong supporters of the extension because without it some valuable properties from the 1920's will soon enter the public domain. Specifically, the Disney Company and the Gershwin estate are both working hard to protect their interests. Many wonderful Gershwin tunes were written in the 20's, and even the venerable Mickey Mouse will lose his copyright protection in a few years if nothing is done. With such powerful industries behind the proposal, it seemed clear at the outset that the bill would ultimately succeed.
From the library perspective, however, the longer term presents a number of problems. In general, the extension could interfere with a library's efforts to serve its clients, even when a work was old and out of print, and when the copying did not interfere with any identifiable market. Moreover, the issue is closely linked to the preservation problem. Because of the uncertainties of copyright, many librarians working to preserve their collections choose to follow the secure path of preserving only those materials that are already in the public domain, i.e., published before 1923. A twenty year moratorium on new works entering the public domain will represent a twenty year setback to the library preservation effort.
With these issues in mind the library community sought an exemption from the extension so long as the library was not doing the copying for commercial purposes and so long as the copying did not interfere with the market for the copyrighted work."4
Extensive discussions were held throughout 1996 on term extension generally, and on the library proposal in particular. Copyright owners were concerned about the open-ended nature of the potential uses in the library, and they also wanted stronger language to protect their markets. By the end of the Congress, compromise language was developed by the Register of Copyrights that would allow libraries to make copies of protected works during that last 20 year period so long as the work was not currently being commerically exploited by the owner and it could not be obtained at a reasonable price.
This approach seemed to be a workable compromise. At the very end of the legislative session, however, the publishers' representative insisted that "normal commercial exploitation" would include works made available through licensing. Such a provision seemed to the library community to make the whole proposal a nullity because anything could then be included on a list of works available by license and negate the whole purpose of the proposal. The discussions foundered at the end of the Congress on this issue. The bill was re-introduced in the 105th Congress, and the Library Community attempted to re-engage the parties on the issue. It proved impossible to re-ignite those discussions, however, so the library community felt reluctantly that it now had to oppose term extension altogether.
Recently, the term extension bill was joined with the WIPO implementation bill that I will talk about in a minute. The WIPO bill passed the Senate and is currently being marked up in the House. Regrettably, it looks like it stands a good chance for passage, and along with it, the extended copyright term will become the law.
Before I talk about the next copyright issue, the WIPO bill, I need to digress for a minute and introduce the topic of encryption. I have long considered encryption to be the copypright owner's trump card because it gives them total control. All those other limits I mentioned a minute ago -- fair use, the library exemptions and others -- they will all be irrelevent with encryption, because all usage will be controlled by the copyright owner..
What is encryption? Essentially it is a technological means of giving the owner control over her work even if the work is no longer in her possession. One of the easiest ways to think about it is to think of it as an electronic envelope. The copyright owner puts the work into the envelope, seals it, and then writes on the outside the conditions for opening and reading what's inside. It might say, for example, if you want to read this article, it will cost you $2.95. No forwarding, printing or downloading is permitted. If you wish to proceed, please enter your VISA or Mastercard number now. If you authorize payment, you will be permitted to read the article; if you don't, the envelope will remain sealed. This kind of system is called "pay-per-view," and it has been the goal of the publishing industry for a long time. The use of encryption technology makes such a system possible and maybe even likely. With such a system in place, ask yourself about the role of the library. Weren't we the great equalizers? Weren't we the ones who provided information to everyone regardless of their wealth or ability to pay? What happens now when you have to pay for every article you look at? Doesn't that change something fundamental about the nature of our society?
With that as background, let me turn now to another copyright issue, the bill that would implement a new copyright treaty from the World Intellectual Property Organzation, otherwise known as WIPO.
In the United States, this legislation, which is now very close to passage, started out in 1995 with a report5 from the Working Group on Intellectual Property, which had been convened to make recommendations about the intellectual property issues involved in developing the Internet. The proposals6 of the Working Group clarified the rights of copyright owners by adding the word "transmission" to the list of exclusive rights of copyright owners. They also endorsed encryption and licensing as a solution to the piracy problem, and, to permit the encryption system to work, the bill proposed to make devices that could circumvent encryption systems illegal.
The library community and many in industry had some major concerns with the proposal, and made those views known on Capitol Hill and elsewhere. The seeming expansion of the rights of copyright owners to include "transmissions" raised many questions as did the reliance on technological solutions. Among other things, the library groups asked that if Copyright owners were getting the extra protection they felt they needed, then at a minimum, there should also be an addition to the fair use section of the statute to ensure that it would apply in the electronic environment and not be limited to the analog technology of the time when it created. Although many people assured us that the vitality of fair use would continue, they were not willing to put that simple proposition in writing, in the statute. And, by the way, they still aren't.
Ultimately, the Working Group proposal did not pass because so many concerns were raised about it. However, the proponents of the legislation took many of the same issues to Geneva where they were able to secure a draft treaty. In something of a victory for the public interest, the Library groups who were in Geneva won a concession that nations could provide for limitations on the exclusive rights otherwise granted to copyright owners. That was a victory, because even though such limitations have been a part of United States law for a long time, the concept had not been recognized before in international treaty.
The treaty does a number of things, but two of them seem important here. Although it did not establish a transmission right, it did establish a "right of communication" which grants:
authors ... the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.7
Plainly, that is intended to encompass the placement of protected materials on the net. Although it sounds like a new right, experts think it can be inferred from our existing rights of reproduction and distribution, so that language is not included in the implementing legislation. Make no mistake, however, since a treaty is the supreme law of the land, when the treaty is adopted, the communication right will very much be a part of U.S. law.
Unfortunately, the Library community and many of its coalition partners have some of the same concerns about this legislation that they had about the earlier one, so I thought I should go through those.
The first concern is a heavy reliance on encryption and the barring of anti-circumvention technology. The treaty supports the use of encryption systems and requires countries to provide legal protection against its circumvention. The WIPO implementation bill proposed by the administration, and currently moving forward in Congress, deals with this issue by outlawing the development of technology that could be used to circumvent the system of encryption, even if the circumvention would be used for a lawful purpose, such as fair use or library preservation. For the reasons I've indicated, many of us have doubts about encryption and believe that the unfettered use of encryption will lead to an imbalance in the system as we have known it to be. But even if you do accept the necessity for encryption, it seems wrong to protect it by outlawing the development of new technologies.
Consider this: when the photocopier was invented, many people thought that it's primary purpose was to defeat copyright. When the VCR was invented, so many people thought that infringing copyright was its primary purpose that a lawsuit was brought against SONY, the company that made it. We cannot know what new reproductive technologies will emerge in the future. But if this bill is passed, the development of such new technologies will come to a halt, and we will never see the next generation of reproductive technology.
The library community and its coalition partners in industry believe that we can comply with the treaty without interfering with the development of new technology by focusing -- as has traditionally been done in copyright -- on the intent of the person using the technology. The treaty does not require a broad prohibition of software and hardware. The same goal can be achieved by holding the person liable who, for purposes of infringement, knowingly circumvents the operation of an encryption system. Such an approach would allow technology to continue to develop and place the blame where it belongs: on the person committing the infringing act.
In addition to this concern about anti-circumvention, the library community has been concerned about a number of things that are not in the proposed legislation, but should be if the Copyright Act is being updated for the digital age.
Fair use. We would like to see the fair use section of the Act amended slightly to ensure that a finding of "fair use" may be made without regard to the means by which a work has been performed, displayed, or distributed. In that way, just as teachers, librarians, researchers, and others may make fair use of copyrighted works in the analog world, they would be assured that they could do the same thing in the digital world.
Library Preservation. The preservation problem has reached critical proportions as brittle books continue to deteriorate on our shelves. This problem will get even worse if the term extension bill is passed. In the late 20th century, librarians should be permitted to use digital techniques, not merely analog techniques, to be able to preserve the materials in their collections.
Distance learning. The current Copyright Act supports distance learning by permitting the distribution of works for such purposes using television. The Copyright Act should be updated to permit the same thing to be done digitally. Failure to make this change could hamper the development of distance learning which has become increasingly important everywhere, but especially in rural areas.
First Sale. First sale allows the owner of a work to lend it, sell it, or otherwise dispose of it. Like distance learning, the first sale doctrine needs to be updated for the digital age. We believe that it is not unreasonable for a person who has a legally obtained digital copy of a work to transmit it to someone else, so long as the original is deleted from the sender's system at substantially the same time.
Ephemeral copies. When a work is transmitted over a network, many temporary or ephemeral copies are made along the way. We believe that for the web to thrive, it should be made clear that such ephemeral copies, in and of themselves, are not infringing copies.
Fair use, library preservation, distance learning, ephemeral copies, first sale. None of these are radical; all they do is attempt to carry forward the existing balance of rights into the digital age. These ideas have been incorporated into a counter proposal to the Adminstration bill that was put forward by Senator Ashcroft and by Representatives Boucher and Campbell. Unfortunately, as reasonable as they seem to us, and although the House bills have attracted a large number of co-sponsors, these issues have not yet been dealt with.
Last month, the WIPO bill passed the Senate 99-0, under suspended rules. The House bill has passed the Judiciary Committee, but was then sent to the Commerce Committee for further review. Many of us believe that our issues are receiving a more sympathetic hearing from the Commerce Committee. Although they were supposed to mark the bill up today, they've now received an estension and will mark it up sometime next month. If you talk with your representatives, you should urge them to oppose this legislation until the issues I mentioned, anti-circumvention, fair use, and the others are dealt with.
Ok. We've already covered quite a bit - reform of Title 44, Encryption, and Copyright. Now I need to turn to something similar to copyright, but different in some important ways -- database protection.
The database issue is different because, strictly speaking, even though it is about protecting information, it is not about copyright. It arises as an issue because some proprietors believe that the Copyright Act does not protect them in the way that they would like to be protected.
The story begins in 1991 when the Supreme Court decided the Feist case.8 That case held that the White pages of the phone book were not copyrightable because they lacked sufficient originality. Noting that originality is the bedrock principle of copyright, the Court in Feist explicitly overruled a line of cases that had allowed copyright protection based on the so-called "sweat of the brow" rationale, where the basis for protection had been hard work and investment, not originality. The Court said that to obtain copyright protection some modicum of originality must be found, if only in the selection, coordination, or arrangement of the material. Mere investment or hard work was not enough.
The case dealt only with the white pages, but the holding was broad enough to call into question the copyrightability of many databases, especially those created automatically or from materials in the public domain, unless there is some demonstrative selection, coordination, or arrangement of the material in question.
About a year after Feist , the Commission of the European Union presented a proposal to the Council for a Directive on the protection of databases outside the traditional systems of copyright. Over the next few years, that proposal progressed through two readings, and eventually it was finalized as a Directive and transmitted to the member states for implementation.
Two months later, in May of 1995, a substantially similar proposal was introduced into our Congress as H.R. 3531 by Representative Moorhead. It was supported by the Information Industries Association, but aroused concern among many other groups -- including many in the industry -- who were concerned about the breadth of the bill and its potential to significantly undo the copyright balance in the United States. Let me highlight four key provisions of this bill for you. First, it would have overruled Feist , permitting protection based on investment rather than originality. Second, the definition of database was so broad that it could have included essentially anything, even literary works. Third, it would even have protected collections of public domain government information. Fourth, protection for the database would last indefinitely, as long as the database continued to be updated or otherwise modified. In addition, the proposal made no provision for fair use or other similar uses of the data. This bill split the information industry and caused alarm in the library community and among scientific and medical researchers who felt that their reliance on free public domain data was threatened, and it was never passed.
Recognizing the flaws in this approach, the proponents of database protection returned with a different approach in the current Congress. Instead of trying to protect data under copyright, the current bill would protect it against misappropriation, or taking the data in a way that interferes with the compiler's market. At first, this approach seemed more promising.
Nonetheless, there remain a number of issues. Most importantly, there is nothing in the record that suggests that additional protection is needed for the protection of databases. No studies have been done, and from all that anyone can see, the database industry is thriving, with companies like Thomson and Reed Elsevier purchasing database companies for record-setting prices. As a result, there is no indication of a need to protect investment, rather than creativity. Moreover, the information industry itself remains split on the desirability of this proposal, with the legal publishers being the chief proponents and other major companies like Dun and Bradstreet opposing it.
In addition, some of the key definitions are troublesome. For example the definition of information is very broad, as it was in the earlier bill. The bill defines "information" as:
facts, data, works of authorship, or any other intangible material capable of being collected and organized in a systematic way.
That sounds to me as though it is broad enough to include pretty much anything that is copyrightable as well as facts and data that are not. As a result, this bill could supplant copyright in many cases. It prohibits someone from "extracting, or using in commerce, all or a substantial part of a collection of information gathered, organized, or maintained by another person through the investment of substantial monetary or other resources, so as to harm that other person's actual or potential market"
Again here, the criterion for protection is investment, not creativity. Moreover there is no definition of harm, nor is there any explanation of the meaning of the phrase "potential market." How is that to be determined? If a library downloads an item, couldn't it be argued that that interferes with the market?
No governmental entity at any level can protect its information under this bill, nor can a private contractor under an exclusive arrangement with the government, so one might think that government information cannot be protected. However, a smart company that simply goes out and collects the information before it disappears from the government source can, through this legislation, gain a monopoly over government information that would be in the public domain under copyright.
Responding to criticism of the original bill that there was no "fair use" kind of provision, the drafters did include a section that permits the use of an "insubstantial" part of the database, but without defining "insubstantial". They also included a provision for not for profit educational, scientific or research uses. But again, if the market includes pay-per-view transactions, then any use could be argued to interfere with the potential market, so these exceptions do not really help the library and education community.
The database bill remains troublesome. It sweeps much too broadly, threatens the principle of free public access to government information, and does not include meaningful exceptions for the library and education community. Unfortunately, it passed the House earlier this spring. So far, it has not been dealt with in the Senate, but we have heard a rumor that they may join it with the WIPO bill after the WIPO bill clears the House and pass it without a hearing or serious committee review. If you meet with your Senators tomorrow, you should probably express your concern to them about the WIPO bill in general and the database bill in particular.
Finally, the last issue I want to highlight for your consideration is the issue of licensing.
If encryption was one trump card for information providers, the issue of licensing is another complimentary one. Remember the description of encryption as an envelope with a lot of terms and conditions written on it. Well, maybe not all the terms are there on the outside of the envelope, but some of them are inside, after you open the envelope, or in another envelope clipped to the first. How many of you have installed software or downloaded something from the web where there was a license agreement to read and a button to click saying "I agree" or "I accept?" Leave your hands up, please. For those of you that have done that, leave your hand up if you always actually read what you're agreeing to. The licensing proposals moving forward now validates those agreements, even though they are rarely read and they've been very controversial.
These license agreements are commonly known as shrink wrap licenses, because they often accompany software, and frequently you can only read them after you open the package and find the shrink-wrapped envelope with the software inside. Or maybe you don't even see it until you're in the middle of the install program. In the new parlance, these licenses are now called "mass-market licenses," to include clickable licenses as part of the software or on the web.
When licenses such as these have been reviewed by courts, they have frequently been held to be invalid, because they were not negotiated between the parties, and they cannot reflect a meeting of the minds of the parties, because there was often no opportunity and even more often no inclination to read it until there's a problem.
One court -- the U.S. Court of Appeals for the Seventh Circuit -- did find such a license valid in a case called Pro-CD v. Zeidenberg.9 Now, following the lead of that court, a prominent legal group is drafting an amendment to the Uniform Commercial Code that would also validate such contracts.
The Uniform Commercial Code has been adopted in all 50 states and the District of Columbia as the basic law governing commercial transactions. Until now, it only covered contracts for the sales of goods -- like cars, or produce, or a load of steel. Several years ago, however, some people began to feel that since this was the information age, our basic commercial law should be updated to include licenses for information as well as contracts for the sales of goods. UCC Article 2 is the existing section, and the proposed new section on licensing would be Article 2B.
The drafting process has been underway for several years, with a panel of experts doing the drafting, subject to the review of two different national organizations. If those two groups approve the draft, then it will be sent to the 50 state legislatures for their enactment into state law.
The drafting meetings have been dominated by representatives of the information industry, representatives of the software industry, and so on. Few consumer groups have been represented there, and those that have tried to make an impact have run into a brick wall. (I speak from experience.) Because of the lack of consumer input, Consumers' Union has called for the project to be delayed until more of their issues can be dealt with, and Ralph Nader recently criticized the effort, saying that consumers are (excuse my French) "about to get screwed."
Central to the concern of libraries and other consumer groups is the validation of mass market licenses. The reason this is important from a copyright perspective is because by means of a mass market license, a licensor can get you to waive any or all of the rights you might have had under the Copyright Act. That includes fair use, first sale, or any other right you might wish to make use of. All that, without your even being aware of what you've done. You may also agree to other conditions or waivers of warranties that you would be unaware of. The library community agrees that for the internet to develop as a commercial medium, there needs to be some way -- such as through a click-agreement -- for individuals to manifest assent to a contract. But we do not agree that people should give up important rights without even knowing that they are doing so, let alone having had the opportunity to negotiate over it. At a minimum, the library community believes that when a consumer is asked to give up any of their rights under the Copyright Act, that fact should be brought to their attention and they should have to manifest assent to that specific provision.
Like the database bill, the definition of information in the draft U.C.C. is broad enough to include everything: facts, databases, literary works, everything. So now you can see why this bill is a second trump card against the consumer. First everything is locked up by means of an encryption system which it is a criminal offense to defeat even for a legitimate fair use purpose, and then to see what's inside the sealed envelope, you may be asked to waive your rights.
Now I think you can see why I think this is such a critical time for libraries. All the ground rules are changing, and libraries and their users are likely to face a very different environment -- probably pay per view -- when all is said and done. Look how it all comes together. Copyright owners want a longer terms of protection, to extend even longer beyond their own lifetime than the law already provides. They want to protect things that are not protectible under copyright, things that are completely lacking in originality. They want to use encryption technology to guarantee that they are in total control and do not even have to permit fair uses without payment, and they want to use non-negotiated licenses to ensure your agreement with whatever terms they choose to impose. Taken altogether, the picture for the public interest is not a pretty one.
In addition to these national level issues, there are a host of similar issues unfolding in every state. I wanted to mention a few.
Access to government information. The World Wide Web has encouraged state and local governments to make more information more widely available. That is good, and we have applauded it. No doubt they are doing this because it is an easier, cheaper, and more effective way than print for them to make their information available to their constituents.
On the other hand, the web is still new. And some governments say we can't do that new thing because we don't have the staff and it will cost us money. Let's provide it on a cost-recovery basis. Or, let's give an exclusive contract to an electronic publisher and let them worry about it. Or, let's use this as a way to generate additional revenues to run other government operations. This issue is one that comes up over and over again, in the states and even at the local level. We librarians need to be very watchful and urge our state legislatures and city councils, wherever possible, to provide a mechanism for free public access to public information.
Network development. States are approaching the building and construction of the network in a variety of ways. Some are funding it with state money. Some are enlisting support from partners in industry. Some are getting Federal grants. We need to be sure that we are pressing for schools and all types of libraries to get connected to the network, to get the equipment needed to make the network available to students and library users, to keep the costs of access reasonable, and also to provide support and instruction for teachers and librarians who will, in turn, teach students and members of the public how to use these new resources.
Network Costs. Most of us are not very familiar with the regulatory activities of our state Public Service Commission. But that commission generally has oversight over phone rates and related internet access charges, such as rates for higher speed lines. There is wide variation in these rates throughout the country, ranging from very reasonable -- about the price of an additional phone line -- to prohibitively expensive -- hundreds of dollars a month. Some public interest groups have tried to play a watchdog role on these rates, but it is hard for them to monitor and have an impact in all 50 states. Librarians could and should play a role here to ensure that the rates are reasonable for schools, school children, and others using the Internet for access to information.
Intellectual Freedom. The issue of intellectual freedom on the network is very much unresolved. The laws banning certain content from the network were decisively struck down as overbroad and an infringement of our First Amendment rights, but new efforts seem to surface all the time anyway. In addition, there are now demands for schools and libraries to install filtering software to prevent their users from reaching many of those same offending sites. Regrettably, the filtering software seems to have many of the same flaws as the legislation. It tends to be overbroad and filter out many perfectly legitimate sites along with the sites that some have deemed offensive. This issue is a difficult one for libraries, and how we respond to it will be important in defining our role in our communities in the years ahead.
Let me shift briefly now to lobbying.
Some of you may wish to follow up on some of these local issues when you return home. And others of you are going to visit Congressmen or Senators tomorrow. What should you expect?
First, how do you begin to get involved in these issues back at home? Unless you are going to be doing this full-time, the first thing you need to do is to develop a network of contacts that will keep you informed about developments and let you know what you can do. Contact your state library association to see if they are monitoring the relevant issues. See if there are other consumer-oriented groups following the issues that interest you and get on their mailing lists.
Once you find a few issues to get involved with, you need to understand the issues and be prepared to explain your view to the policy makers involved. You can and should write letters, make telephone calls, and send faxes explaining your concern. Don't be content to just say "I don't like it." If you don't like it, you need to explain why you don't like it. What will be the impact of the proposal on you or your clients? Even better is when you can develop an alternative proposal that meets some of the objectives of the original idea, but meets your objectives too.
If you are representing an organization, you will probably want to request a meeting at some point with the legislative or executive branch staff involved. That's not hard at all. All you have to do is call them up, explain who you are and why you are interested in the issue and request a meeting. Although not every individual can get a meeting with a policy maker or staff member, if you are representing a constituency with a particular point of view, you will almost certainly be given the opportunity to make that view known. In addition, if you are a constituent of a particular legislator, you may wish to request time with the representative themselves. Their time is highly limited, however, so it's wise to use such privilege carefully and focus most of your attention on the staff.
So, let's say you've got an appointment with a staff person or a legislator. What should you expect? And that brings us to your activities tomorrow. The truth is this is nothing you should be at all nervous about. They're just people. And they want to hear from you. If you're meeting with staff, you'll probably get more time than with the Representative. Most staff will give you an hour or more if you've really got something to say. The legislators themselves will usually limit the conversation to under an hour and often just half an hour because of the constraints on their time. Unless you are meeting with Barney Frank, they will not be intimidating. They will be friendly. Remember, they want to hear what you have to say.
The main thing I can tell you about that meeting is to be prepared. (But don't write out a speech.) Your time there will be relatively brief, and when you walk in you should have in mind three or four very specific points that you want to make. If you want, you can write the main points on a notecard -- but keep it to one notecard, so you don't read from them and so you don't spend your time shuffling cards.
Undoubtedly, the meeting will begin with introductions (if you have business cards, take them along for the ritual exchange). Then there will be a little chit-chat -- where are you from, what you do, stuff like that. Then, fairly quickly, the Representative will be interested in why you came to see her. At that point, you can begin your discussion. You should make your points briefly, but illustrate them with real life examples of why it's important to you. (You might tell them about a client who has breast cancer, for example, who won't be able to find the material she needs on the world wide web, if you have to install filtering software on your library's computers.) Keep your points simple, but tell them some stories that take the point out of the abstract and make them think about its real meaning. At this point, you can probably expect some questions as they try to understand the impact of the proposal on libraries. That's good, because it means they're engaged. After you've made your points and answered their questions, the meeting will probably wrap up fairly quickly. You will thank them for their time, and it will all be over with.
For some people, the first time they do this kind of thing, it can seem a little intimidating. But if you know why you're going in in the first place and have prepared ahead of time, so that you have a short list of points to make, you will find it kind of fun to talk about issues that matter so much to our future.
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I hope you can see now that this is, indeed, a time of momentous change for libraries. The issues -- ranging from title 44 and copyright to intellectual freedom on the internet are very important to the kind of information world we will live in in the future. I urge you to become involved at some level and to make your views known. Otherwise, someone will ask you years from now -- Where were you
when the world shifted?
- Copyright Robert L. Oakley, 1998.
- Robert Oakley is Director of the Law Library and Professor of Law at the Georgetown University Law Center in Washington, D.C.
- H.R. 989, 104th Congress.
- Proposed "Library Exemption" to H.R. 989, September 19, 1995.
- Intellectual Property and the National Information Infrastructure, the Report of the Working Group on Intellectual Property Rights, Washington, D.C., Information Infrastructure Task Force, September 1995. See preliminary analysis of the white paper by James M. Sabina in the 1995 Bowker Annual at 248.
- H.R. 2441 and S. 1284.
- WIPO Copyright Treaty, Adopted by the Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, Geneva, December 20, 1996.
- Feist v. Rural Telephone Co., Inc.