ARCHIVED: Legislative and Regulatory Update - July 17, 2000

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Legislative and Regulatory Update
Monday, July 17, 2000
Philadelphia, PA

by Mary Alice Baish
AALL Associate Washington Affairs Representative

Good morning. It is always a pleasure to be with you each year for the Legislative and Regulatory Update, and in between these annual gatherings, I hope that you find the monthly Spectrum articles useful in keeping up with our activities. These articles are all posted to our website at the same time they are submitted to Peter Beck, so if you are closely following an issue, be sure to visit our website for more timely updates. Another way of keeping informed throughout the year is to subscribe to the AALL-Advocacy listserv which was created in September to share more frequent and timely updates on important issues with you and to urge your participation in our advocacy program.

More on that later, because first I'd like to express my thanks to Rita Reusch for her efforts in planning this program now two years in a row, and for bringing us such excellent guest speakers. Last year Jonathan Band guided us through the many intricacies of the Uniform Computer Information Transactions Act, or UCITA. Many activists in the anti-UCITA campaign prefer to call it U-CHEATA, but you'll hear more about that too in a few minutes. I'd also like to thank Marybeth for participating in our program this morning and for sharing her knowledge and expertise of the very complex intellectual property issues that are before the Copyright Office. I'm especially pleased that we were able to have such a thoughtful exchange with you, Marybeth, during the Q&A period, and that you've had the opportunity to hear directly from our members who deal with the complex issues surrounding digital information on a daily basis.

As we approach the waning days of the 106th Congress, I'm going to cover briefly four legislative issues this morning and then talk about the significant progress we have made together this year with our AALL grassroots program. The key legislative issues are:

 

  • The FY 2001 funding threats to the Federal Depository Library Program.

     

  • The future of the National Technical Information Service.

     

  • Database legislation.

     

  • And the Uniform Computer Information Transactions Act .

We've already heard this morning about the effects of rapidly changing technologies on federal copyright policy. This same technology has been driving the equally important policy issues regarding access to government information. Those of you in depository library's have witnessed the transition from print to electronic since GPO Access was established by federal legislation in 1993. Since 1995-96, Congress - and specifically, the House - has increasingly signaled plans to eliminate all print publications from the Federal Depository Library Program and to rely solely on the Internet for public access to all government information. I represented AALL in the 1996 study on the transition to a more electronic FDLP. At the time, we developed a set of guiding principles because, along with the shift in formats, we believe it very important to recognize that some core responsibilities of depository libraries in the print world - such as ensuring permanent public access, preservation and authenticity - become new responsibilities of government in the electronic world.

That leads me into an update about the FY 2001 appropriations process. In early May, the House Appropriations Committee reported out H.R. 4516, cutting FY 2001 funding across all legislative branch agencies by $94 million dollars and causing a huge outrage among House members, particularly concerning the substantial cuts to the Capitol Police. FY 2001 funding for GPO was cut by 25%, including a draconian 61% decrease for the FDLP--from the FY 2000 level of just under $30 million dollars to $11.6 million. The Committee noted that since the costs of providing public access through the Internet are substantially lower than the costs of producing and distributing print materials to depository libraries, there would in effect no longer be a print depository program. The distribution of the print version of important titles for the legal community, including the Federal Register, the Congressional Record and the Code of Federal Regulations, would be eliminated. In addition, there would be no funding for the production or distribution to depository libraries of the 2000 version of the official print United States Code.

The Senate reacted swiftly by quickly approving their FY 2001 funding bill, S. 2603, giving the FDLP a slight increase over last year but sending a strong signal to the House that it would not tolerate the substantial cuts to the legislative agencies. When H.R. 4516 eventually passed in the House, the FDLP funding level had been raised to $26 million, but language was retained eliminating the tangible distribution of approximately 15,000 titles to depository libraries that are currently available in both online and tangible formats. The official version of many important titles to our community is the print version, and in addition to the titles already mentioned, depository libraries would no longer receive Supreme Court decisions, congressional publications, or the bound Congressional Record and Serial Set whose distribution has been limited to the regional depository libraries. House and Senate conferees met on July ***

We are very grateful for the tremendous grassroots efforts by you in quickly responding to the action alerts we have posted on this crisis since May. A June 22nd article in Roll Call specifically singles out AALL for playing a role in influencing House members to restore of much of the FDLP funding - see how your strong voices has made a difference. While we all applaud the government's efforts to make more information more broadly available online, we strongly oppose the elimination of the print version of these important core government publications in the depository program because the government has yet to solve the important challenges of ensuring the permanent public access, preservation and authentication of electronic government information.

Another challenge of the electronic environment is the difficultly in finding and locating government information across the more than 20,000 agency web sites. In his first-ever his first-ever webcast address to the Nation on June 24th, President Clinton unveiled plans to greatly expand citizen access to online government information and services by the end of the year through the development of a single web site called "FirstGov." Internet entrepreneur Eric Brewer is creating, at no cost to taxpayers, this free site that will allow citizens to search half a billion documents in less than one-quarter of a second (or so they say), and will be able to handle at least 100 million searches a day. While this initiative doesn't address our concerns about authenticity and permanent public access, if the project is successful and if it is sustainable, it may well signal a big step forward in terms of locating the electronic information our users need. Tom Freebairn, who is working on this project for the General Services Administration, will talk about this new search capability during Wednesday's Hot Topic session.

Second, the future of the National Technical Information Service.

In August 1999, the Department of Commerce announced plans to close NTIS and transfer its collections, functions, services, and assets to the Library of Congress by the end of FY 2000. The National Commission on Libraries and Information Sciences held several public meetings with various stakeholders, including representatives of the Library of Congress, the Government Printing Office and the National Archives. NCLIS issued its report on this proposal in April, finding that the mandated NTIS mission is fundamentally sound and has very high strategic value to the U.S. economy, but the current NTIS business model is flawed and needs to be changed and updated. We were actively engaged in the study first, because we believe that funds should be appropriated so that NTIS materials are available to depository libraries, and second, because our law firm libraries rely on the timely and efficient NTIS sales program.

In our final comments for the study, we expressed concern about one option proposed by NCLIS, the privatization of some NTIS activities and while there is a clear role for the private sector in developing value-added products and services, all inherently governmental functions now carried out by NTIS must remain within the government. In addition, we recommended that the future of NTIS should be part of a broader debate on government information policy issues that affect public access, including permanent public access and preservation. Lastly, we stated that the lack of compliance by agencies with Title 44 provisions requiring the distribution and access of publications to depository libraries has been problematic for many years and must be addressed in the context of the current policy decisions regarding NTIS.

The financial situation at NTIS has stabilized, with profits of $600,000 in FY 1999 and projected to be over $1 million in FY 2000. However, they have had no funding for infrastructure investments and have lost over 100 staff positions in the past year. The General Accounting Office just released a study on the agency, questioning whether or not NTIS should continue to serve as a disseminator of federal information, and if so, whether or not it should be required to do so on a self-sustaining basis. NCLIS has just announced a second NTIS study, to be completed by December 15th, to provide recommendations on the agency's future, evaluating whether there should be a central repository of scientific and technical information, or whether dissemination should be the responsibility of individual agencies. It will also encompass reforms needed in the government's overall public information dissemination policies.

The third issue I'd like to address very briefly is database legislation.

Just as a bit of background, Congress has attempted to pass database protection legislation since 1996. In the early days of the 106th Congress, Rep. Coble introduced the Collections of Information Antipiracy Act, H.R. 354, that overturns the Feist decision and grants new protections to facts and data outside of copyright law. The library, academic and research communities oppose H.R. 354 and support the bill approved by the Commerce Committee, H.R. 1858, that presents a more balanced proposal for database protection. It does not overturn the Feist decision, thereby affirming a basic tenet of U.S. information policy that facts are in the public domain. It allows for transformative uses of data without the chilling potential of infringement liability. Importantly, academic users and others would benefit from H.R. 1858's permissible uses, patterned after traditional copyright "fair use" provisions. In addition, H.R. 1858 includes AALL's language specifically excluding primary legal materials created at all levels of government from the legislation. We are firmly committed to ensuring that government information, including primary legal materials, created by taxpayer dollars for taxpayer use should be available in the public domain.

Along with other members of the Digital Future Coalition, we have worked hard to educate members of Congress in both the House and Senate about the differences between these two pieces of legislation. As of this week, at least, there has been no House floor action on database and the Senate Judiciary Committee has yet to consider the legislation. Congress adjourns early this year, on October 6th, and action is unlikely, thought we're being very vigilant. While we'd like to think that, after almost six years of attempting database legislation, we could do a countdown to "three strikes and you're out," more realistically this is an ongoing issue that will reappear. Nonetheless, the education and advocacy work we have done on its merits will carry over into the new Congress.

The fourth legislative issue is the Uniform Computer Information Transactions Act

UCITA which has been a unique challenge because we're now in the realm of influencing state, not federal, legislation. Last November, AALL was a founding member, along with the other national library associations, of a new broad-based coalition called 4CITE - For a Competitive Information and Technology Economy.

Most of us are quite familiar with the background of UCITA. It began as a joint initiative by the National Conference of Commissioners on Uniform State Laws and the American Law Institute to draft Article 2B of the Uniform Commercial Code to determine the rules governing commercial transactions involving computer software. It proved to be a very controversial process, given the fact that the ALI withdrew from the drafting process in May 1999 because of objections to "substance, process, and product."

The Federal Trade Commission, the National Consumer Law Center, and the Attorneys General of 26 states opposed the draft UCC 2B; nonetheless, NCCUSL moved forward on its own and promulgated it last summer as UCITA. The proponents of the legislation say that it is needed for electronic commerce and to protect software and information databases from theft. Our response is that the federal Digital Millennium Copyright Act and the No Electronic Theft Act include provisions that make the piracy of digital information a criminal offense.

UCITA has significant policy implications because of its very broad scope. It covers computer software, online databases, electronic books and journals and Internet services. In our view, it does not adequately protect consumers and it dramatically shifts the balance of existing contract and copyright law in favor of software vendors and database producers. Experienced practitioners disagree about how to interpret UCITA and how it would actually work in practice. While we probably all agree that at some point in the future there should be uniform rules of the road to govern computer information transactions, we continue to believe that the approach taken in UCITA is deeply flawed.

So what are the most significant negative impacts of UCITA on libraries?

First, UCITA validates shrink wrap and clickable licenses. Today, many software and information products are sold either in a shrink wrap package or a click-on license through the Internet. Non-negotiated contracts - what we commonly refer to as "mass-market" contracts--would be enforced under UCITA even though the courts are somewhat divided on their validity. So, a user may agree to contract terms that restrict legitimate uses of the product under federal copyright law by the mere act of opening a software package and downloading it, or clicking on the "I Agree" button.

The preemption of copyright law is one of our most serious concerns. The Association of the Bar of the City of New York issued its Report of the Committee on Copyright and Literary Property of the Association of the Bar of the City of New York in July 1999 that fully examined UCITA's preemption provision. After noting that the Committee believes "that UCITA significantly diminishes national uniformity by establishing state copyright licensing rules that overlap and sometimes conflict with federal copyright law," it concludes that,

 

Copyright law also seeks "[t]o promote the Progress of Science and useful Arts" through a system of limited protection for original works of authorship that maintains a balance between what is protected and what is reserved for the public domain and the creation of future works. The Committee believes that UCITA may upset this balance by validating mass market shrinkwrap and click licenses which prohibit fair use and other conduct permitted by copyright law.

Second, UCITA's includes provisions on electronic self-help--meaning that your software or database can be shut down remotely without court approval or any liability for the harm it might cause. A licensor could exercise self-help during the term of the license even for an unknowing minor infraction - and electronic self-help would apply to applications software and electronic databases across the entire spectrum of a library's operations.

Third, UCITA validates the use of transfer restrictions in the mass market, conflicting with the long established first sale doctrine. This could effectively deny libraries the right to transfer legally acquired materials through interlibrary loan, or to enhance their collections through gifts and exchanges. While UCITA requires that such a provision must be conspicuous in a mass-market license, there is no equivalent requirement for standard form contracts that libraries typically use.

In sum, the provisions of UCITA would leave libraries with little bargaining power and few rights that currently exist under federal copyright law. We have a huge stake in this issue because our libraries are among the largest consumers of software and fee-based electronic databases and services. UCITA will impact our ability to carry out our mission by restricting the use of software and digital information. And it will increase the costs of libraries to acquire, lend and preserve electronic information.

So far, Virginia and Maryland are the only states that have enacted UCITA - in both cases, UCITA had the strong support of the governors and the legislative leadership. Its proponents expended a great deal of time and effort in getting UCITA enacted in these states - and the library community and our 4CITE coalition partners actively opposed it. I'd like to personally recognize Sally Wiant, Jim Heller, Lyn Warmath and all VALL members for their good work in Virginia, and Harvey Morrell and LLAM members for their food efforts in Maryland.

As for its progress in other states, UCITA was either tabled or not introduced this year in California, Delaware, Hawaii, Illinois, Maine and Oklahoma. Efforts to begin legislative review for possible introduction next year are underway in Florida, Louisiana and Arkansas. However, we have worked with our sister library associations to draft a series of amendments to UCITA, ranging from a full library exclusion from UCITA to preserving library rights under copyright law in non-negotiated license agreements.

The current situation we face in trying to protect the interests of libraries state-by-state from the broad scope of UCITA was envisioned last year when the Washington Affairs Office and the Government Relations Committee developed our AALL-Advocacy listserv and put out a call for UCITA coordinators in all fifty states, DC and Puerto Rico. Our members have been monitoring for UCITA activity in their state and in many cases, have sounded the first alarm of pre-legislative activity. This has contributed to our ability to organize 4CITE working groups in key states and we can all be very proud of the role that our members have played in these state efforts.

This close collaboration with our members illustrates the last point I'd like to make this morning - that our efforts in Washington to influence legislation will not be successful without an effective grassroots advocacy program. During the past year, on every single issue - from FDLP funding, to efforts to close NTIS, to database legislation and UCITA - it is your individual contacts with your congressional or state representatives that have made the difference. I'm here to tell you this morning that each of you is absolutely essential to our ability to influence legislation. As we confront the challenges of technology at the public policy level, protecting public access and balance in copyright law, we need your help to educate your representatives on these very complex issues that are not easily understood. We ask you to share your specialized knowledge and expertise with them to help influence our legislative agenda.

Saturday morning, the Government Relations Committee held its second annual advocacy training workshop. Over 70 AALL and chapter members attended, and our goals were to recruit new participants in our advocacy program; to educate them on the issues; and to give them the confidence and organizational skills so that they become chapter leaders on the policy and advocacy fronts. Speaking both for the Washington Affairs Office and the GRC, we hope this training will become an annual tradition because we would like to engage each of you more fully in our advocacy efforts. Earlier I mentioned the AALL-Advocacy listserv - please, when you're in the Exhibit Hall, stop by the GC Table and sign up. We need your support of our legislative agenda, we need your expertise, and we need your voice. Thank you very much.