ARCHIVED: Legislative and Regulatory Update - September 1998

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Dateline: July 30, 1998

Mary Alice Baish
Assistant Washington Affairs Representative
Edward B. WIlliams Law Library
111 G Street, N.W.
Washington, DC 20001-1417
202/662-9200 * FAX:202/662-9202
email: baish@law.georgetown.edu

Oakley Testifies in Support of Title 44 Bill

Bob Oakley joined two other representatives from the library community--former ALA president Barbara Ford and Dan O'Mahony, chair of the Inter-Associations Working Group on Government Information Policy (IAWG)--at yesterday's hearing before the Senate Rules and Administration Committee on S. 2288, the Wendell H. Ford Government Publications Office Reform Act of 1998. All three strongly supported the need to enact this bill to reorganize the Government Printing Office and to strengthen the Federal Depository Library Program (FDLP) this year. S. 2288 was introduced on July 10th and many of our members began their lobbying efforts during the Annual Meeting in Anaheim, as the GRC had come prepared with pre-stamped postcards. More than two hundred were mailed from Anaheim, urging members of Congress to cosponsor this important legislation.

In addition to the first panel of library community witnesses, the second panel included Ben Cooper (Printing Industries of America), Dan Duncan (Information Industry Association), and Patrice McDermott (OMB Watch). This panel also supported S. 2288 although they raised some issues that they believed need some clarification. The third panel consisted of Public Printer Michael DiMario, George Lord (Council of GPO Unions) and Bill Boarman (Communications Workers of America). Tenuous last-minute negotiations among congressional staff, GPO and the unions prompted Chairman John Warner to introduce this last panel by remarking that all of the preceding witnesses had spoken in support of the bill, and he hoped that the third panel would build on that good foundation. To the hushed audience and startled witnesses, he then individually asked each of them whether they supported S. 2288. Each replied affirmatively. In their statements, however, they did raise several issues of ongoing concern but expressed confidence that further negotiations with Senate staff would resolve them.

A fourth panel that was to include representatives from the Office of Management and Budget (OMB) and the Department of Justice failed to provide the Committee with their testimony until the eve of the hearing. That strained the "grace period" extended to them by the Committee and so the decision was made not to let them testify at the hearing. Their prepared statements, however, will be included in the record. The testimony of all the witnesses were posted immediately on the Committee's homepage at: www.senate.gov/~rules.

The enactment of S. 2288 this year is critically important. With the end of the 105th Congress, we lose our two strongest champions on the Hill, Sen. Warner who will move on to chair the Armed Services Committee and Sen. Ford who is retiring. Without this much-needed reform bill, many of us believe that the future of the Government Printing Office is bleak because agencies will increasingly procure publications outside of the GPO and more and more tangible documents will escape the FDLP. We have long complained that there are no "teeth" in Title 44, and S. 2288 has strong provisions for agency compliance and enforcement. And without the bill's provisions regarding permanent public access to online publications, important titles will continue to disappear from agency Web sites. Among those who oppose the bill are companies whose financial interests could be at stake, such as Xerox, since a provision in the bill would put an end to most agency in-house printing.

ACTION NEEDED: An IAWG letter is being sent to all members of the Senate asking them to co-sponsor S.2288, and we are posting an AALL e-mail action alert urging members to call their representatives, fax a short letter, or set up meetings at district offices during the August recess. Despite strong support of the bill from the library community and others, opposition to S.2288 is mounting and it will take a major grassroots effort by all the library associations to get this bill enacted. Please respond TODAY to our alert (aa073198.asp). For more information, including a detailed analysis of S. 2288, visit the IAWG Web site at: www.lib.berkeley.edu/IAWG.

Copyright Update

The bills to implement the World Intellectual Property Organization's treaties (H.R. 2281/S. 2037) and to grant sweeping new protections to compilations of facts (H.R. 2652/S. 2291) continue to plague the library community and our Digital Future Coalition (DFC) partners. H.R. 2652, the Collections of Information Antipiracy Act, was passed in the House in May on a voice vote, and the Senate version was introduced this month by Sen.Rod Grams (R-MN). It now appears that a Senate hearing on this bill will be held on September 9th to air fully the many controversial provisions of this bill.

Regarding H.R. 2281, thanks to the efforts of House Commerce Committee members Rep. Scott Klug (R-WI) and Rep. Rick Boucher (D-VA) following an excellent subcommittee hearing on June 5th at which Bob testified on behalf of the library community (testimony.asp), a compromise amendment on fair use was approved by the full committee. The compromise eliminates the statutory ban on the circumvention of a "technical protection measure" even if carried out for lawful purposes, such as fair use. It also directs the Secretary of Commerce to adopt such a regulation but only after a formal rulemaking proceeding to determine whether users would be adversely affected by its implementation. The initial rulemaking would then be reviewed every two years. With the House August recess just a week away and pressure to get the bill to the floor for a vote, there remains great controversy over which of the two bills will in fact be sent to the floor: H.R. 2281 as reported out of the House Judiciary Committee (which we strongly oppose) or as reported out of the House Commerce Committee (which is a compromise that we can live with).

UCC2B Update

With the Title 44 bill and these copyright issues keeping us more than busy, it's nice that we can report some progress regarding the drafting of the UCC2B. At the annual meeting of the National Conference of Commissioners on Uniform State Laws (NCCUSL) in Cleveland on July 26th, Commissioner Harvey Perlman successfully sponsored a "Sense of the House" motion that would permit a court to refuse to enforce a shrink-wrap license term that is contrary to public policies relating to innovation, competition, and freedom of expression. The motion would address some of our concerns with Article 2B by allowing a court to void a shrink-wrap or click-on license term which would prevent a library from making an archival copy or keep a patron from making fair use of a copyrighted digital work. The motion now goes to the UCC2B drafting committee for implementation.