ARCHIVED: Legislative and Regulatory Update - December 1998

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Dateline: October 16, 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  

Today, members of the 105th Congress will likely pass the omnibus appropriations bill that President Clinton is expected to sign shortly, paving the way for adjournment and the November elections. While it's difficult to assess the full ramifications of some of the information policy legislation passed by this Congress during its hectic, waning days, we'd prefer to view the glass half full rather than half empty, knowing that just about all of these issues will reemerge come January either as new legislative proposals or formal rulemaking proceedings.

Database Protection

Strong grassroots pressure, aided by last-minute letters to Sen. Hatch from the Department of Justice and the Federal Trade Commission raising constitutional and anti-trust concerns, combined to convince the Conference Committee to strike H.R. 2652, the Collections of Information Antipiracy Act, from the WIPO treaty implementation bill. A few major publishers are among those who have attempted now for the past two Congresses to grant new protections over the compilation of facts that they package and sell as value-added products. While these new protections are not extended to federal government information if published by the government, H.R. 2652 would offer new protections to "agents or licensees" that gather, organize or maintain a government collection of information. Conferees unanimously expressed support for the concepts of a database protection bill, and vowed to bring it back early next year.

WIPO Treaty Implementation

Passage of the WIPO treaty implementation bill was a given this year, so it's no surprise that the Senate and House quickly resolved their differences on H.R. 2281, the Digital Millennium Copyright Act (DMCA). President Clinton, in a statement issued October 12, 1998, noted that when the Senate ratifies the treaties "America can continue to lead the world in the Information Age." Clinton also stated that the DMCA "will extend intellectual protection into the digital age while preserving fair use and limiting infringement liability for providers of basic communication services."

The outcome of the fair use provisions exemplify the glass half full/half empty analogy. The DMCA mandates that during the first two years following enactment, and thereafter every three years, the Register of Copyrights will conduct a formal rulemaking proceeding to determine whether the provisions prohibiting the circumvention of "technological protection measures" will "adversely affect" the ability of users to make noninfringing uses of copyrighted materials. The Register of Copyrights will also have to report back to Congress within six months of the DMCA's effective date on how to promote distance education through digital technologies. The final version of the bill also explicitly states that reverse engineering, security testing, privacy protection and encryption research will not constitute illegal anti-circumvention. We will have to be vigilant during the rulemaking process in ensuring that fair use is maintained in the digital world.

Copyright Term Extension

Disney, determined to protect copyright ownership over Mickey Mouse and friends into perpetuity, won the battle on extending the term of copyright for an additional 20 years. The half full glass here is the exemption for libraries, archives and nonprofit educational institutions from the extended term for noncommercial purposes, provided that the work is "not subject to normal commercial exploitation" and that if the copyright owner objects, use of the work would stop. This was another battlefield between copyright owners and those who believe that the purpose of copyright is to maintain the balance between owners and users "To promote the Progress of Science and useful Arts."

Legislative Branch Appropriations

H.R. 4112, the Legislative Branch Appropriations Act for FY 1999, will be remembered by some as the legislation that eliminated the Joint Committee on Printing (JCP), or at least de-funded its operations as of January 1, 1999, to make it a "virtual" committee as is the Joint Committee on the Library. There will still be a skeletal staff divided between the House Oversight Committee and the Senate Committee on Rules and Administration, but lacking the enactment of S. 2288 which provided for the orderly transfer of JCP functions to these committees and to the Public Printer, it remains unclear how the JCP will operate. The JCP chairmanship reverts to the House in 1999 and will again go to Rep. Bill Thomas (R-CA-21 ), who when he took over the reins as JCP chair in 1995, raised the ire of the Senate members when he unilaterally attempted to eliminate the committee.

The legislation authorizes $29.2 million for the Federal Depository Library Program, but caps travel funds at $150,000. As a result, when the Depository Library Council meets in San Diego next week, one of the items we will consider is the Public Printer's request to shorten the meeting time and to switch the fall meeting to DC because of anticipated cost savings. The spring meeting would then rotate around the country. This change would become effective in spring 2000.

Title 44 Reform

During a panel presentation to the ONLINE WORLD 1998 conference on October 12, 1998 on efforts of the 105th Congress to reform Title 44, I noted that S. 2288 was introduced in mid-July after a year and a half of intense negotiation to develop a bipartisan, bicameral consensus bill to reform a law that for well over a hundred years has determined how the government publishes and disseminates its information. (online.asp) With so many interested stakeholders--including GPO, the unions and the printers; Congress, the Administration, and the courts; the information industry, the information technology industry, the library community and public interest groups--we can not even pretend that S. 2288 is a consensus bill. Opposition to it, especially during the past six weeks, has been intense.

Unable to convene a quorum despite two attempts earlier in the month, twelve members of the Senate Committee on Rules and Administration met on the evening of September 28, 1998 and by voice vote approved the Chairman's Mark to S. 2288. Sen. Kay Bailey Hutchison (R-TX) voiced dissent, objecting to the centralized procurement through GPO and what her staff refers to as the "sweetheart" union provisions. Other congressional opposition comes from a coalition led by Rep. Pete Sessions (R-TX-5) that now includes over 100 members of the House. They too oppose the centralized procurement provisions, claiming that government procurement under the Clinger-Cohen Act and the National Performance Review are mandates towards decentralization. The committee report on S. 2288 will be filed any day now. We submitted draft report language for the chapter 19 provisions regarding Judicial Branch dissemination and compliance, and are therefore very anxious to see the final report.

The failure to get broader support for this important legislation, especially in light of the full grassroots program, can be attributed to the tremendous opposition mounted in both the Senate and House by Xerox Corporation and other information technology groups. While these companies were given the opportunity to express their concerns at the September 16th hearing and were invited by Sen. Warner to work with the committee staff, they chose instead to mount a disingenuous misinformation campaign that effectively killed the bill this year. We have already begun to regroup and assess what we need to do between now and the beginning of the 106th Congress so that we don't lose the momentum or the substantial progress we have made this year. Stay tuned!

Wrapping up the 105th Congress...

It goes without saying that our work here in Washington to promote AALL's mission and policies would not be nearly as effective if we didn't have our wonderful members to rely on. The response to our urgent action alerts this year has been overwhelming. Thanks to each of you who has become involved in our wonderful grassroots program--you have truly made a difference!