Washington Brief - November 2003

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By Mary Alice Baish

Dateline: September 4, 2003

NCCUSL Discharges UCITA Standby Committee

In an unprecedented move, the National Conference of Commissioners on Uniform State Laws (NCCUSL) discharged the standby committee of the Uniform Computer Information Transactions Act (UCITA) on August 1, 2003 at NCCUSL's 112th Annual Meeting held here in Washington, DC. The decision was made by the Executive Board and announced in a press release and letter by NCCUSL President King Burnett. Burnett stated that: "Clearly our efforts to find consensus and to bring all of the interested parties together has been extraordinary. Unfortunately in the real world, sometimes doing the right thing at the right time is not enough. We have determined to focus the Conference's energies on the items related to our larger agenda and not expend any additional Conference energy or resources in having UCITA adopted. Of course, we are not abandoning our interest in the subject matter. UCITA will remain in place as a resource for the American legal and political community, and for reference by the courts." In discharging the committee, Burnett congratulated Carlyle (Connie) Ring and the drafting committee for doing a "fantastic" job. And, in a nod to the strong opposition from our anti-UCITA coalition, Americans for Fair Electronic Commerce Transactions (AFFECT), he added that "Clearly we are experiencing directed intense and incessant politics and strong opposition, without suggestion of concrete alternatives, from some consumer groups, insurance companies and libraries, and the allies they have accumulated."

AFFECT immediately issued a press release applauding NCCUSL's decision and noting that, in fact, we had proposed countless amendments to UCITA. The fact is that UCITA has been the subject of considerable controversy over the past decade. It was quickly enacted in Virginia and Maryland following its July 1999 adoption by NCCUSL. Since then, AFFECT has stopped its enactment in over a dozen states. In addition, we succeeded in getting UCITA "bombshelter" bills enacted in Iowa, North Carolina, Vermont and West Virginia, thereby protecting the residents and businesses in those states from the choice of law and choice of forum provisions of UCITA as enacted in Virginia and Maryland. For more information on our response to the NCCUSL announcement, visit the AFFECT web site at: http://ucita.com/happening.html.

This decision by NCCUSL was not wholly unexpected. It recognizes our strong opposition to what we consider to be a flawed statute that contains significant, fundamental public policy problems. We should not fully lower our guard, however, since UCITA could still be introduced by any legislator in any state. AALL members in more than a dozen states played very significant roles in stopping its enactment and we will continue to ask members to monitor their state legislative activity...just in case. Nonetheless, this is good news-thanks to all of you who have helped our efforts to stop UCITA in state capitals during the past four years!

Discussion Draft of Database Legislation Released

AALL, the American Library Association, the Association of Research Libraries and the Special Libraries Association sent a joint letter to Rep. James Sensenbrenner, Jr., Chair of the House Committee on the Judiciary, and Rep. W.J. " Billy" Tauzin, Chair of the House Committee on Energy and Commerce, raising our concerns with the just-released discussion draft "Database and Collections of Information Misappropriation Act." While purporting to be a compromise between the two very opposite approaches taken by the two committees, its many new provisions raise substantive and troubling concerns for the library community.

Since this new draft is the first database bill we've seen in three years, let's review what has brought us to this point. The purported need by publishers for additional legal restrictions for databases stems from the removal of most copyright coverage for factual databases by the Supreme Court's unanimous decision in Feist Publications, Inc. vs. Rural Telephone Service Co., 499 U.S. 340 (1991). The Feist Court ruled against the "sweat of the brow" doctrine, and found that only those elements of a database that have the requisite modicum of originality, such as arrangement and selection, currently are entitled to protection under copyright laws. The first efforts to enact database legislation began in 1996 when the House tried to insert legislation, promoted by the Judiciary Committee, into the Digital Millennium Copyright Act (DMCA, P.L.105-304). Fortunately, Senate conferees removed the offending legislation from the DMCA because it was overly restrictive of traditional scholarly communication and downstream transformative uses of data, and provided inadequate fair use protections.

During the 106th Congress, our successful strategy to slow down the Judiciary Committee's efforts to enact the Collections of Information Antipiracy Act (H.R. 354), legislation substantively similar to the earlier bill, was to convince Chairman Tom Bliley, then chair of the House Energy & Commerce Committee, to introduce competing legislation, the Consumer and Investor Access to Information Act of 1999 (H.R. 1858). H.R. 1858 presented a more balanced scheme for database protection. It did not overturn the Feist decision, thereby affirming a basic tenet of U.S. information policy that facts are in the public domain. At the same time, companies and individuals investing significant resources in database creation would be protected from misappropriation. Academic users and others would benefit from H.R. 1858's permissible uses, patterned after traditional copyright fair use provisions. Moreover, government information and, in a provision drafted by the Washington Office, primary legal materials would be exempt from protection thereby creating better public access to legal information.

Those of us who opposed the first database bill quickly formed a coalition in 1996 that has grown in strength and numbers. Today it includes-in addition to libraries and higher education-the financial sector, the technology community and even many publishers. The diversity of our group is also a political force since both Consumers Union and the U.S. Chamber of Commerce are active and valuable members. The new discussion draft database bill contains many new provisions and raises many additional concerns for all members of the coalition. Our joint library letter reiterates that we have yet to see any serious evidence of the need for legislation that provides additional protections to databases. Indeed, the database industry appears to be thriving. We raised a number of specific issues regarding the discussion draft: that the exemption for non-profit educational organizations is wholly inadequate; that a new subpoena provision would result in a flood of frivolous lawsuits by database owners on a fishing expedition; that the draft bill contains no exemption for legal information, and the exemption concerning government information is ambiguous; and that it raises fundamental questions about the relationship between this bill and the Copyright Act. For more information about our concerns, please see: http://www.aallnet.org/aallwash/lt09042003.html.

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

 


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