Washington Brief - May 2000

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Dateline: March 30, 2000

Maryland-a Bitter Battle over UCITA
With many lessons learned during the UCITA legislative process in Virginia, we have become better organized both with our library issues and as part of our coalition, For a Competitive Information and Technology Economy (www.4cite.org), in our battle against the Maryland UCITA bills, HB19 and SB 142. We have participated in many public meetings of the House Economic Matters Committee and the Senate Finance Committee; we have provided testimony expressing the needs of the library community; we have tried to negotiate in good faith with the proponents who represent NCCUSL, Microsoft, American Online, and the mega-publishers; and we have had many meetings with state legislators to explain library concerns. When HB 19 passed the House of Delegates on March 28th by a vote of 83-50, we were not at all surprised; rather, we felt that our efforts had paid off and it gave us hope. It has been very clear to us all along that the real battle would be in the Senate, and we'll be working hard until the legislative session ends on April 10th to either get our library amendment included in the Senate version of the bill or delay enactment by holding a summer study. Why do we need our library amendment? UCITA includes very unclear language about how it relates to federal preemption. Section 105 (a) states only that "A provision of this title which is preempted by federal law is unenforceable to the extent of the preemption." Section 105 (b) refers to how a court should view a contract that violates "fundamental public policy" but we have been unsuccessful in adding legislative language to clarify that fair use is in fact a fundamental public policy. Other provisions of UCITA directly conflict with provisions of the Copyright Act. Our amendment is crucial to ensuring that the limitations and exceptions to copyright law are preserved under UCITA so that libraries and educational institutions have the ability to continue their historic functions in the digital age. The amendment reads as follows:

"When the licensee in a non-negotiated license under this Act is a library, archive or educational institution, a term which has the impact of restricting the provisions of 17 U.S.C. Sections 102(b), 107, 108, 109, 110, 112, 121, 512 and 1201 (a)(1)(C) and (d)-(k) shall not become part of the license."

What are the roadblocks to getting this amendment added to the Maryland UCITA bill, which if enacted in its current form will become a model for other states to follow? Our greatest challenges are the following:

 

First, the proponents are very well-organized, they have greater access to legislators than we do, and they have distorted the needs of libraries in the digital age by portraying us to legislators as conduits for theft, if not online pirates; Second, consider how challenging it is to explain the complexities of federal copyright law and state contract law to legislators, the majority of whom are non-lawyers and perhaps have never used the Internet; And third, as we move from state-to-state, we have to scramble to find new partners, both individuals and organizations, who will join our opposition.

So, is the battle over UCITA worth our efforts? ABSOLUTELY! Read Sally Wiant's article on page *** to learn more about UCITA in Virginia and how the effective date has been delayed until July 1, 2001. And we are not giving up the battle in Maryland, where the tireless efforts of Harvey Morrell, University of Baltimore Law Library, have helped us enormously and where our LLAM members have made a huge difference.

The truth is that we in the library and educational communities are in the middle of a huge, well-planned strategic campaign. The same interests who envision a pay-per-view, pay-per-use future are fighting us over UCITA, over database legislation, over the DMCA rulemaking process (see last month's column), and over our efforts to draft digital distance learning legislation-they are spreading us thin in the hope that they can divide and conquer. If you haven't been engaged in AALL's advocacy efforts yet, now is the time to join us!

Database Legislation Heating Up (Again) !
Over 7000 realtors from all across the nation will be here in Washington on May 17th for their Legislative Day to urge support for H.R. 354, the Collections of Information Antipiracy Act that is strongly opposed by AALL and 63 other organizations. That may be enough to encourage House leadership to try once again to move the bill to the House floor, although it's a battle between the realtors, backed by many of the mega-publishers, and libraries, the scientific community, and the Internet industry. We've been involved with our allies in House visits to seek additional support for H.R. 1858, the Commerce Committee legislation that includes AALL's exclusion for primary legal materials. So far, Majority Leader Armey has been unsuccessful in striking a compromise between the two bills and there's little chance that will happen. Also in our favor is the fact that the Senate has never taken up database legislation and would be unlikely to act quickly on legislation that has been so controversial. Action alerts will be going out this month urging opposition to H.R. 354-please join us to defeat this threatening legislation.

Congratulations to New DLC Member Charlene Cain!
Charlene Cain, Associate Librarian/Government Documents Librarian at the Paul M. Hebert Law Center, Louisiana State University, has been appointed to the Depository Library Council by Public Printer Michael F. DiMario. In nominating Charlene for this distinguished position, AALL President Margie Axtmann noted her broad working knowledge of the depository library program and its transition to a more electronic program; her strong leadership skills, most recently as chair of the GD-SIS; her championship of the principles of public access to government information; and her commitment to the challenges of preserving and providing permanent public access to FDLP electronic materials. We congratulate Charlene and know that she will be an asset to the discussions and deliberations of the Depository Library Council!

 

Mary Alice Baish
Associate 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