----------------------------Original message---------------------------- FYI - Part 2, Fowarded from ALAWON. Katy ------- Forwarded Message Date: Fri, 20 Feb 1998 18:47:08 -0500 From: ALAWASH E-MAIL (ALAWASH E-MAIL) <[log in to unmask]> To: ALA Washington Office Newsline <[log in to unmask]> Subject: ALAWON v7, n19 - ACTION ALERT: MARKUPS OF IP BILLS IMMINENT ================================================================= ALAWON Volume 7, Number 19 ISSN 1069-7799 February 20, 1998 American Library Association Washington Office Newsline In this issue: (210 lines) IMMEDIATE ACTION ALERT: PREMATURE MARKUPS OF TWO INTELLECTUAL PROPERTY BILLS IMMINENT; COSPONSORS NEEDED FOR H.R. 3048 LIBRARY BILL Note: This message, and important supporting material, has been transmitted in 2 parts. This ALAWON is part 2 of 2. _________________________________________________________________ IMMEDIATE ACTION ALERT: PREMATURE MARKUPS OF TWO INTELLECTUAL PROPERTY BILLS IMMINENT; COSPONSORS NEEDED FOR H.R. 3048 LIBRARY BILL OPPOSE H.R. 2652, "COLLECTION OF INFORMATION ANTIPIRACY ACT" BACKGROUND: In late October of last year, ALA Executive Board member James Neal -- testifying on behalf of ALA, AALL, ARL, MLA, and SLA -- told the House Courts and Intellectual Property Subcommittee that H.R. 2652, the "Collection of Information Antipiracy Act," would afford dangerously sweeping new legal protection to compilations of facts not sufficiently original to merit copyright protection at the expense of scholarship, research and public access to information generally. Mr. Neal also noted that the proponents of the legislation had failed to make the necessary threshold showing of real harm prerequisite to such a dramatic expansion of the rights of database compilers. At a second hearing on H.R. 2652 on February 12, similar objections to the bill and near-term Subcommittee action on it were raised by members of both the public and private sector, including major database owners. Proponents once again offered no evidence of actual or concrete market failure. Nonetheless, Subcommittee Chairman Howard Coble (R-NC) announced his intention to bring this bill to a vote (or "markup") in the House Courts and Intellectual Property Subcommittee by mid-March. Mr. Coble also indicated his intention to draft amendments to reduce the bill's adverse impact on scholarship, research and public access to information. _________________________________________________________________ KEY LIBRARY CONCERNS WITH H.R. 2652, THE "COLLECTION OF INFORMATION ANTIPIRACY ACT" (COURTESY OF ARL) * There continues to be no compelling research detailing the need for additional new protections. * There has been no demonstrated need for new intellectual property protections for "electronic collections and other collections of factual material." Industry statistics demonstrate that the database arena enjoys a thriving and robust marketplace, indeed, one that is growing quite significantly. Many in the not-for-profit and commercial sectors believe that adequate forms of protection exist -- copyright, contracts, and increasingly, technological measures. * The legislation encompasses a vast array of information, in part because provisions in the legislation go well beyond the traditional misappropriation doctrine. * The prohibitions in this legislation would go beyond the sphere of commercial competition, to reach the activities of individual consumers and not-for-profit institutions. This casts a wide net and could conceivably chill the legitimate use of databases and related collections. * Greater definition of key terms is needed and the relationship between H.R. 2652 and the copyright statute requires clarification to understand the full scope of the legislation * Key terms are poorly or are not defined in H.R. 2652. For example, the definition of information included in the legislation would sweep in a vast array of information products and services. In addition, it will be important to evaluate the overlap between the coverage of H.R. 2652 and that of copyright. The effect of the proposed legislation, could be to prevent certain sectors from pursuing legitimate functions permitted today. Since H.R. 2652 is designed to "protect" investment rather than creativity, the long and important tradition in the United States of protecting expression not facts will be undermined. This tradition is based on an appreciation that such a policy stimulates innovations in the public and private sectors, supports the educational process, and "promotes the progress of Science and the useful arts." Finally, provisions in the bill would provide protection to both current and retroactive information thus permitting, in effect, perpetual protection. * The exceptions and exclusions included in the legislation are narrow and require additional definition to be meaningful. * Unlike the Copyright Act, which includes numerous exemptions and limitations in support of education and libraries, there are no comparable exemptions in H.R. 2652. For example, given the extremely broad definition of information included in H.R. 2652, much of what libraries and educational institutions are able to accomplish due to the exemptions and limitations in the Copyright Act could be undermined. Would it be possible to fashion meaningful provisions for the not-for- profit, education, and research communities? * The provision relating to government information requires modification to ensure a continued, robust public domain and to ensure that governmental works are not copyrighted. * Section 1203 of the bill requires additional amplification. One reading of this legislation is that it would permit private parties to compile collections of non-copyrightable government information and assert protection over them. When coupled with seemingly perpetual protection, the proposal could significantly reduce the amounts and types of information in the public domain. * In 1996, legislation was introduced in Congress that focused on the "sui generis protection of databases." H.R. 2652 addresses issues related to "collections of information, not only "databases. The international community chose not to consider a draft treaty that would provide additional protections to databases. For more information, see ARL's key library concerns with H.R. 2652 at http://www.arl.org/info/frn/copy/hr2652sum.html. _________________________________________________________________ OPPOSE H.R. 2281, "WIPO COPYRIGHT TREATIES IMPLEMENTATION ACT"; SUPPORT H.R. 3048, "DIGITAL ERA COPYRIGHT ENHANCEMENT ACT" BACKGROUND: ALAWON readers will recall substantial activity in Washington (and last winter in Geneva, Switzerland) directed toward updating the nation's copyright laws for the digital age. The House Courts and Intellectual Property Subcommittee held its only hearings on the Clinton Administration's narrow and seriously flawed proposals (H.R. 2281) to implement the Geneva treaties last September. In contrast to H.R. 3048, H.R. 2281 does not contain any of the positive "key elements" listed below. With the introduction of H.R. 3048, Reps. Rick Boucher's (D-VA) and Tom Campbell's (R-CA) "Digital Era Copyright Enhancement Act" in mid-November of 1997, however, librarians, educators, researchers and many significant industries in the private sector now have the opportunity not only to oppose a harmful bill and endorse truly excellent legislation. The introduction of H.R. 3048 constitutes tremendous legislative progress toward ALA's goal of preserving the current balance in copyright law between protecting information and affording access to it. Rep. Howard Coble (R-NC), Chairman of the House Courts and Intellectual Property Subcommittee, however, plans no hearings on this potentially landmark, bipartisan legislation. Rather, he has scheduled a vote on WIPO implementing legislation now being drafted by Subcommittee staff for late February. Constituent contacts to Mr. Coble and his fellow Subcommittee members are now urgently needed to defer Subcommittee action until a true consensus among all stakeholders on how best to update the Copyright Act for the digital age can be reached. _________________________________________________________________ KEY ELEMENTS OF THE "DIGITAL ERA COPYRIGHT ENHANCEMENT ACT" (H.R. 3048) * FAIR USE DOCTRINE -- relied on by students, teachers, journalists and others for reasonable access to information for non-commercial purposes without the owner's advance permission -- applies in the digital environment; * PRESERVATION -- libraries and archives may use the latest technology to preserve and store endangered materials; * FIRST SALE -- will continue to permit the owner of a copy of copyrighted information in electronic form to freely loan, sell or give it away, thus enabling libraries to loan such material tomorrow as they do printed material today. * DISTANCE LEARNING -- educators engaged in distance learning may use computer networks to remotely distribute an appropriate variety of materials directly related to a defined curriculum to students enrolled in their classes; * TEMPORARY COPYING -- electronic copies of material incidentally or temporarily made in the process of using a computer network may not serve as the sole basis for copyright infringement liability; and * ENHANCED CIVIL PENALTIES -- individuals who deliberately use a computer network to violate copyright laws should be subject to substantial civil (but not criminal) liability. _________________________________________________________________ ALAWON is a free, irregular publication of the American Library Association Washington Office. 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