The Shared Legal Capability
Report on Accomplishments
1995 - 1998
The Shared Legal Capability is a cooperative effort by the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association to retain outside counsel expertise in intellectual property issues, and to maintain and exert a joint library community position whenever possible on key intellectual property policy issues. The SLC has enabled its library association members to achieve accomplishments in the intellectual property policy arena that would not have been possible for any one group individually. SLC accomplishments from 1995 through 1998 include:
WIPO Treaty Provisions
The SLC groups worked with the Digital Future Coalition during the December 1996 World Intellectual Property Organization conference called to revise the Berne Convention for the digital age. The SLC and DFC successfully participated in the creation and adoption of agreements that explicitly recognized the need to protect copyright owners, encourage information distributors, and assure public access to information. These efforts achieved modifications in original proposals so that the treaties did not require changes in the careful balance of U.S. law, and so that the overbroad database protection treaty proposal was not taken up.
Substantive Legislative Progress
Ashcroft & Boucher/Campbell Bills. Together developed pro-active bills (the Ashcroft and Boucher/Campbell bills) to address library/user needs, and achieved broad user community support. Got these bills introduced, cosponsored by a bipartisan group of legislators, and in play. These bills positively affected later developments.
Joint Testimony. In the current climate it was and is difficult to achieve a seat at congressional hearing tables on intellectual property issues. The SLC, by agreeing to present library community views jointly, and to agree to provide witnesses acceptable to committee leadership, was able to have its views heard on several occasions.
Negotiating Table Representation. Through working together, achieved seat at negotiating tables. In all cases this included legal counsel Arnie Lutzker (whom no one group could have supported alone); often this also included one or more representatives of the library organizations. Further developments would not have been possible without this step.
Digital Millennium Copyright Act. This Act, signed into law in October 1998 updates copyright law for the digital age and prepares U.S. law for adoption of the WIPO treaties. Among the provisions on which SLC effort was evident are the following:
Library Preservation Update. Achieved library and proprietor agreement, and later inclusion in DMCA, to update library preservation portion of Sec. 108 to expressly permit authorized institutions to make up to three preservation copies of an eligible copyrighted work; electronically loan those copies to other qualifying institutions; and permit preservation, including by digital means, when the existing format in which the work has been stored becomes obsolete.
Distance Education. When a negotiated agreement could not be reached, influenced terms of study included by legislators in the DMCA. The Copyright Office is to conduct a study within six months on how to promote distance education through digital technologies. Parties to be consulted include nonprofit libraries and archives. This issue would not have been on the table at all without SLC leadership.
Fair Use & Anti-Circumvention. A true negotiated agreement could not be reached in this area. However, with enormous effort and against great odds, and partly through broadening the area of House activity from the Judiciary Committee to include the Commerce Committee, a "fail-safe" provision was developed and enacted in the DMCA. While not ideal, it defers the effective date of the prohibition against bypassing a technological protection measure (in effect a new access right granted proprietors) for two years. During that time, and every three years thereafter, a rulemaking proceeding will take place to determine whether the anti-circumvention prohibition will adversely affect information users' (both individuals and institutions) ability to make non-infringing uses of particular classes of copyrighted materials.
Liability Limitations. The limitations on online service provider liability in the DMCA include some protections that apply to nonprofit libraries and educational institutions, even though nonprofits were excluded from this particular negotiating table in the final stages. However, at an earlier stage, Arnie Lutzker participated as an accredited representative to congressionally sponsored all-industry negotiations over the appropriate scope of OSP liability. For nonprofit libraries, archives, and educational institutions, the courts may remit attorney fees and statutory damages for violations of anti-circumvention and copyright management information provisions if the violator was not aware and had no reason to believe that its acts constituted infringement. Further, there is no criminal exposure (fines or prison terms) for libraries, etc.
Database Protection Bill Withdrawn. The overbroad Collections of Information Antipiracy Act, after passing the House twice in 1998 and after almost two months of negotiations, was pulled from the DMCA in the final days of the session. While it was the number one priority of certain online publishers, the SLC and DFC arguments concerning the negative effects on fair use, research, and scholarly and scientific activities caused the issue to be deferred until the 106th Congress.
Copyright Term Extension Exemption. The Copyright Term Extension Act, a separate piece of legislation, includes an exception permitting libraries, archives, and nonprofit educational institutions, under certain circumstances, to treat a copyrighted work in its last (new) 20 years of protection as if it were in the public domain for noncommercial purposes. The SLC and other interested parties with Copyright Office participation negotiated this exemption over the course of a couple of years, and while not perfect, would not exist at all without joint library group action.
NET Act. The No Electronic Theft Act was signed into law in December 1997. The SLC and other interested parties were able to achieve modifications to this new criminal Internet copyright infringement legislation to preclude library and educational institution prosecution based solely upon their operation of a computer network.
The SLC and other interested parties actively participated in industry/government negotiations over the scope of a new proposed Article 2B of the Uniform Code, a model state law provision with profound implications for the future of access to information. In December 1998 it was learned that the American Law Institute will not be taking up UCC2B in 1999 due to continuing concerns.
Principles for Licensing Electronic Resources
The SLC associations initiated and participated in a joint working group that produced "Principles for Licensing Electronic Resources" in final draft form in July 1997 for use by libraries. The effort was funded by the Special Libraries Association.
West v. Hyperlaw Amicus Brief
In 1997, the SLC commissioned and shaped an amicus brief filed in the U.S. Court of Appeals for the Second Circuit opposing a claim of copyright in publicly funded judicial decisions by West Publishing based primarily upon West's addition of minimal and non-original information to such agencies. While funded as a separate project, the SLC arrangement provided a framework for discussion and agreement on a course of action.
DFC. The SLC in itself constitutes a coalition. Together the SLC groups played a leadership role in the development of the Digital Future Coalition, a much broader coalition of 42 groups -- nonprofit educational, scholarly, library and consumer groups, together with major commercial trade associations in the consumer electronics, telecommunications, computer, and network access industries. The DFC is committed to striking an appropriate balance in law and public policy between protecting intellectual property and affording public access to it.
Education Groups. SLC groups worked particularly hard to coordinate efforts with the education community. At some negotiating tables, representatives of higher education and el/sec education were also represented. At times, Arnie Lutzker was deputized to represent certain higher education interests as well as the SLC.
SLC members consulted and worked together throughout the multi-year process of the Conference on Fair Use facilitated by the Patent and Trademark Office. All or some of the SLC organizations were able at various points in this process to provide joint letters or issue joint statements .
Raising Visibility of Issues
Various SLC associations engaged media consultants and used in-house public relations staff to successfully expand the profile on intellectual property issues through specialized and general media articles, interviews, op ed pieces, and letters to the editor. These efforts worked to the benefit of each SLC member influencing policy makers, press, and the international community toward our mutual goals.
Effectiveness of Grassroots Campaigns
The ability of each SLC organization to send a jointly developed action message to their field resulted in strong grassroots response from the library community, especially in key congressional states and districts. Evidence that these appeals worked ranges from blind copies of letters, faxes, and e-mail messages to congressional offices, to comments from congressional staff that they were hearing from constituents. And when there were occasional comments that Rep. XYZ hadn't heard recently about issue ABC, it was possible to turn that around quickly. Constituent support for organizational positions is essential; joint efforts increased the effectiveness of grassroots campaigns.
Beginnings of Implementation Work
DMCA and Term Extension Regulations. Parts of the DMCA and the Copyright Term Extension Act took effect immediately, and Copyright Office notices, interim regulations, or requests for information began to be issued in November 1998. SLC members quickly realized a new phase of needed involvement was just beginning. The SLC met jointly with Copyright Office officials. Strategy sessions and advice and analyses from Arnie Lutzker followed before the end of the year.
Interim Regs on OSP Liability Limitations. These Copyright Office interim regulations require entities to designate an agent to receive statutory notices from copyright owners about infringements, raising a series of important questions for libraries. Sharing these questions, and commissioning an analysis from Arnie Lutzker, enabled SLC organizations to better advise their members.
Distance Education Study Notices. The Copyright Office issued notices in November and December in connection with its study on distance education and digital technologies. Again, SLC strategy sessions and advice from Arnie Lutzker enabled SLC organizations to better involve their members.
Fair Use and Anti-Circumvention Rulemaking. In preparation for the upcoming rulemaking procedure to examine the implications of technological protections on the exercise of fair use rights, the SLC met to discuss what research and analysis would be necessary. The result was a joint commitment toward a research project to be funded partially by SLC member organizations and, it is hoped, partly by outside funding. The ALA Office for Information Technology Policy is leading this joint effort.