Subject: Help retain fair use in the NII (fwd)
David Green (david@ninch.org)
Date: Sun, 7 Jun 1998 13:36:21 -0500
Message-Id: <v01520d01b1a08df1a4d8@[206.214.109.129]> Date: Sun, 7 Jun 1998 13:36:21 -0500 To: ninch-announce@cni.org From: david@ninch.org (David Green) Subject: Help retain fair use in the NII (fwd)
>Date: Fri, 5 Jun 1998 14:42:40 -0400 (EDT)
>From: John Hammer <jhammer@cni.org>
>To: David Green <david@ninch.org>
>Subject: Help retain fair use in the NII
>
>5 June 1998
>
>MEMORANDUM
>
>TO: NHA Executive Directors
>
>FR: John Hammer
>
>RE: Act Now to Preserve Fair Use in the NII
>
>The long battle to ensure that fair use and related educational and
>library provisions remain robust and effective in the print and digital
>environments has reached a critical stage -- and the scholarly community
>and its allied are in danger of defeat on these core issues. The
>situation in a nutshell:
>
>IN THE SENATE:
>
> o The Digital Millennium Copyright Act (S 2037) passed the Senate
>last month with a provision which, if it becomes law, will undermine
>scholars, librarians and others ability to exercise fair use and related
>provisions, while at the same time, creates a new access right for owners
>of copyrighted materials (section 1201). There are no meaningful
>exceptions for education and library community to this new access right;
>
> o A much more balanced and favorable bill from the humanities
>community point of view, was S 1146 sponsored by Senator John Ashcroft
>(R-MO), which was abandoned last month when Mr. Ashcroft negotiated some
>goals and then became a co-sponsor of S 2037.
>
>IN THE HOUSE
>
> o The WIPO Copyright Treaty Implementation Act (HR 2281), the
>counterpart bill in the House of Representatives which contains the same
>Section 1201 language as the Senate version, has passed the House
>Judiciary Committee and is now before the House Commerce Committee.
>
> o HR 3048, the Boucher-Campbell bill, which has 40 co-sponsors but
>has not produced a collaborative negotiation with the proponents of HR
>2281. HR 3048 is intended to protect all Americans (including copyright
>owners, but not exclusively owners), while being fair and honoring
>innovation and the free market. NOTE: Information on HR 3048 was
>distributed to NHA members earlier this year. Anyone wishing to have a
>comparison of HR 3048 and HR 2281 can receive one by Fax by telephoning
>name and address to NHA at 202/296-4994 or e-mailing to jhammer@cni.org.
>
> o The Commerce Committee claimed jurisdiction over HR 2281 and
>Commerce Subcommittee on Telecommunication, Trade and Consumer Protection
>[W.J. "billy" Tauzin (R-LA), Chairman; and Edward J. Markey (D-MA),
>Ranking Minority Member] is holding a hearing today. It is critically
>important that the members of the full Commerce Committee hear from
>humanities-library-other cultural communities explaining why Section 1201
>must be changed to ensure that the balance is maintained between owners
>and users in the networked environment. If the bill as it is presently
>formulated becomes law, it will be damaging to scholarly inquiry and, in
>fact, many forms of research and intellectual activity.
>
>Every NHA member organization is urged to write to the chairman and
>ranking minority member of the full Commerce Committee and the chair and
>ranking minority member of the telecommunications subcommittee mentioned
>above, to express concern about the impact of, in effect, leaving fair use
>out of the digital environment and urging appropriate changes in HR 2281.
>BECAUSE THESE COMMUNICATIONS SHOULD ARRIVE NO LATER THAN JUNE 17 (AND
>PREFERABLY BY JUNE 12), MEMBERS ARE URGED TO FAX OF OVERNIGHT LETTERS.
>ALTERNATIVELY, PHONE CALLS TO STAFFERS RESPONSIBLE FOR INTELLECTUAL
>PROPERTY ISSUES IN ANY HOUSE MEMBER'S OFFICE, ALSO WILL BE VERY HELPFUL.
>The members of the Commerce Committee are listed at the end of this memo.
>Sending a copy of a letter to the chairman to other GOP members and a copy
>of a letter to the ranking minority member to all Democrats will be very
>helpful.
>
>To assist NHA members in this effort, the following is included
>
> o Background and talking points
> o a sample letter plus a suggested "fix"
> o a list of the members of the House Committee on Commerce
>
>BACKGROUND
>
>o The Constitutional provision upon which all copyright law is based,
>calls for a balance of the owners and the public interest (i.e., the
>Constitution justifies offering a monopoly for a brief time to a creator
>by citing the need to promote progress -- This is the basis for the fair
>use tradition.)
>
> "The Congress shall have Power...To promote the Progress of
>Science and the useful Arts, by securing for limited Times to Authors and
>Inventors the exclusive Right to their respective Writings and
>Discoveries." (Article I, Section 8)
>
>o A bill recently passed by the united States Senate and pending before
>the U.S. House of Representatives contains a provision that would effect
>the most dramatic change in copyright law in over one hundred years.
>Buried in the Digital Millennium Copyright Act, a measure designed to
>implement new international copyright treaties which bring the rest of the
>world up with current U.S. law, reads:
>
> Section 1201(a). No person shall circumvent a
> technological protection measure that effectively
> controls access to a work protected under this title.
>
>While sounding innocuous, what the provision does is create a brand new
>and unlimited right to control access to copyrighted works. If enacted
>into law, this new right could bypass the carefully crafted balance
>between exclusive rights of ownership and public access to works for
>educational, scholarly, and scientific purposes, which has been part of
>copyright law for the entire 20th Century. In short, it could eliminate
>fair use from copyright law.
>
>o Historically, copyright law has granted creators of works (including
>books, articles, photographs, movies, and music), five exclusive rights.
>These rights permit the copyright owner to control reproduction,
>preparation of derivative works, public performance, public distribution,
>and public display. However, while copyright law grants "exclusive"
>rights, it sets out numerous limitations or exceptions, the most notable
>of which is FAIR USE. These limitations permit, among other things,
>schools and libraries to use materials in classrooms, critics to
>quote from works as part of commentary, cable systems and satellites to
>relay television programs, and parodists to draw upon existing texts to
>express their original thoughts.
>
>The exceptions apply, even in a world of digital works, where
>technological locks can restrict access, because as long as one has a
>lawfully acquired copy, fair use and many of the other statutory
>limitations are not technologically defined. Until now.
>
>o If the right of access is adopted and backed by stiff penalties (S
>2037 and HR 2281 provide for civil remedies of up to $2,500 for each
>access violation and criminal penalties of up to $500,000 - $1,000,000 for
>offenses, plus 10 years in prison), then publishers will be able to
>publicly release works subject to "technological protection measures" and
>prevent any unauthorized access. Even reading paragraphs of an article in
>a library could be banned.
>
>o No exceptions whatsoever are spelled out in the amendments. This
>means there would be no fair use of any work controlled by technological
>measures, because if one cannot access a work without breaking through a
>technological protection measure and thereby violating the law, then one
>cannot quote for teaching, commentary, or scholarship.
>
>o In what Marybeth Peters, the Register of Copyrights, has noted is a
>meaningless act, the Senate bill promises that all limitations and
>defenses to claims of copyright infringement, including fair use, remain
>unaffected by the new law. Section 1201(d). That is only "technically
>correct." Since copyright infringement consists of violating one of the
>older exclusive rights of owners, the new "right of access" is legally
>unrelated to "copyright infringement." Does fair use apply to the right
>of access? There is only one answer the way the bill now reads. No!
>
>o What can be done to preserve the cherished right of anyone to quote
>and use published works without fear of criminal sanctions? Alert the
>members of the House of Representatives to the threat which Section
>1201(a) poses to the entire copyright law system. Make them understand
>that access to lawfully acquired works, even works cloaked in
>technological protection measures, is at the heart of fair use. If we
>enter an era when quoting from published works is a crime unless you have
>permission of the copyright owner, America and the research and education
>enterprise will never be the same.
>
>TALKING POINTS
>
>o Legislation to update the nation's copyright laws to reflect the
>increasingly widespread use of digital networks is now moving through both
>chambers of Congress;
>
>o The versions of these bills approved by the House Judiciary Committee
>and passed by the Senate provide strong new protection for copyrighted
>information;
>
>o These bills also include a "savings clause" intended by the bills'
>authors and proponents to affirm that the Fair Use Doctrine (the part of
>the Copyright Act relied upon by scholars, researchers, educators,
>students, library users and many others to quote from copyrighted works
>without advance permission of the author) applied both to conventional
>print material and to electronically transmitted information;
>
>o However, according to the Register of Copyrights' testimony before
>Congress late last year, this "savings clause" will not apply to the new
>protection provisions of the pending legislation as written because of the
>technical way in which it is worded;
>
>o The problem exists because fair use is a defense under current law to a
>claim of copyright infringement. The pending legislation, however, would
>make it a crime to "circumvent" any electronic protection codes in which a
>copyright owner may "wrap" its material for any purpose -- even if that
>purpose is not now an infringement of copyright (such as making fair use
>of the material, preserving it, or incorporating it into a distance
>learning lesson in the way the Copyright Act now expressly permits.);
>
>o The solution to this problem is to make clear in the new laws that the
>fair use defense (and those other parts of the current Copyright Act
>designed to permit the use of information under limited circumstances
>without the owner's prior authorization) are applicable BOTH in legal
>actions brought for copyright infringement AND to claims for unlawful
>"circumvention" brought in the future under the proposed legislation.
>
>o Unless this adjustment can be made in the pending legislation, the
>practical ability of scholars, educators, students and others to make FAIR
>USE of electronic information could be precluded or dramatically reduced
>by the information owners' unilateral application of an electronic
>protection system.
>
>
>
>SAMPLE LETTER
>(To be Faxed or overnight because of short time frame)
>
>The Honorable Tom Bliley
>Chairman
>Committee on Commerce
>U.S. House of Representatives
>Washington, DC 20515-6115
>
>Dear Mr. Chairman [Dear Representative XXXX]
>
>I write on behalf of [association/society] to express strong concern about
>HR 2281, the "WIPO Copyright Treaties Implementation Act," and to register
>our support for the related provisions in HR 3048, the "Digital Era
>Copyright Enhancement Act." Unfortunately, provisions relating to
>circumvention of copyright protection systems in HR 2281 will eliminate
>the ability of our members as well as our organization -- scholarly
>researchers, library users, students -- to exercise privileges such as
>fair use and related library and education provisions. These education
>and library provisions are at the core of the academic enterprise -- these
>are the essential means by which teachers teach, students learn, and
>researchers advance knowledge. We ask for your support in ensuring that
>the fair use doctrine and related provisions remain robust in the digital
>environment.
>
>Although HR 2281 contains language that appears to ensure that fair use
>and related provisions will be applicable to both print and digital
>environments, it is, in fact unlikely. This serious problem was
>identified by the Register of Copyright in testimony before the Congress
>last year. As reported by the House Judiciary Committee, Section
>1201(a)(1) would prohibit circumvention of a technological measure for any
>purpose -- including lawful purposes such as fair use and related
>education and library provisions. This constitutes an unprecedented and
>unlimited right to control access to a copyrighted work. And, although
>the authors of the legislation have stated that it was their intention to
>preserve fair use and related education provisions via a savings clause
>(1201(d)), as drafted, it falls short of maintaining the critical balance
>between owners and users' rights regarding use of information resources.
>
>It is not difficult to resolve this critical concern. The solution is to
>make clear that fair use and related provisions are applicable under the
>proposed legislation I have included with this letter language that would
>address our concerns and maintain the appropriate level of balance under
>current law.
>
>In closing, I believe that there are a number of other provisions in HR
>2281 including, privacy and over-regulation of emerging technologies that
>do not appear to be in the best interest of our democracy or international
>trade interests. But, fair use is a key to creativity and innovation --
>Not just for scholarly research but for the much broader enterprise that
>has been this nation's strength. The introduction of a right of control
>of access seems precisely the way to weaken that enterprise.
>
>Sincerely yours,
>
>
>
>
>
>
>[ATTACHMENT TO LETTER PRESENTING CHANGES THAT ADDRESS CONCERN]
>
>
>
>CHANGES IN THE PENDING LEGISLATION WOULD ADDRESS THE PROBLEM?
>
>Amended language for Section 1201 "(a) VIOLATIONS REGARDING CIRCUMVENTION
>OF TECHNOLOGICAL PROTECTION MEASURES -- (1) No person shall circumvent a
>technological protection measure that effectively controls access to a
>work protected under this title." INSERT "Nothing in this section shall
>apply to subsequent actions of a person once such person has obtained
>authorized access to a copy of a work protected under title 17 even if
>such actions involve circumvention of other types of technological
>protection measures."
>
>Delete subsection 1201(d)(1) and substitute the following: "(d) OTHER
>RIGHTS, ETC., NOT AFFECTED -- (1) All rights, limitations and defenses
>available under this title, including fair use, shall be applicable to
>actions arising under this Chapter.
>
>
>ALL MEMBERS OF THE HOUSE CAN BE ADDRESSED AS FOLLOWS:
>
> The Honorable [Dagwood Smith]
> U.S House of Representatives
> Washington, DC 20515
>
>ALL MEMBERS OF THE HOUSE CAN BE TELEPHONED THROUGH THE CAPITOL
>SWITCHBOARD: 202/225-3121 -- For FAX numbers, call the member's office
>and request the number or call NHA at 202/296-4994
>
>WHO TO CONTACT - Members of the Commerce Committee listed below but also,
>any other member of the House as this legislation may reach the House
>floor any time after June 17.
>
>COMMERCE COMMITTEE:
>
>Note: An asterisk identified members of the Commerce Committee who are
>also among the 40 co-sponsors of H.R.3048, the Boucher-Campbell bill --
>(They should be thanked for that co-sponsorship).
>
>MAJORITY (GOP)
>
>Tom Bliley, VA = Chairman (full committee)
>W.J. "Billy" Tauzin, LA = Chair, Telecommunications, Trade and
> Consumer Protection Subcommittee
>Michael G. Oxley, OH
>Michael Bilirakis, FL
>Dan Schaefer, CO
>Joe Barton, TX
>J. Dennis Hastert, IL
>Fred Upton, MI
>Cliff Stearns, FL
>Bill Paxon, NY
>Paul E. Gillmor, OH
>* Scott Klug, WI
>James C. Greenwood, PA
>Michael D. Crapo, ID
>Christopher Cox, CA
>Nathan Deal, GA
>Steve Largent, OK
>Richard Burr, NC
>* Brian P. Bilbray, CA
>Ed Whitfield, KY
>Greg Ganske, IA
>* Charlie Norwood, GA
>Rick White, WA
>Tom Coburn, OK
>Rick Lazio, NY
>Barbara Cubin, WY
>James Rogan, CA
>John Shimkus, IL
>
>
>
>MINORITY MEMBERS
>
>John D. Dingell, MI = Ranking Minority Member
>Henry A. Waxman, CA
>Edward J. Markey = Ranking Minority Member,
> telecommunications subcommittee
>* Ralph M. Hall, TX
>* Rick Boucher, VA
>Thomas J. Manton, NY
>* Edolphus Towns, NY
>* Frank J. Pallone, Jr, NJ
>* Sherrod Brown, OH
>Bart Gordon, TN
>* Elizabeth Furse, OR
>Peter Deutsch, FL
>Bobby Rush, IL
>Anna G. Eshoo, CA
>Ron Klink, PA
>Bart Stupak, MI
>Eliot L. Engel, NY
>Thomas C. Sawyer, OH
>Albert R. Wynn, MD
>Gene Green, TX
>Karen McCarthy, MO
>Ted Strickland, OH
>Diana DeGette, CO
>
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