No. 2
August 23, 1996
A news and information digest for those working to
preserve and make
available cultural heritage resources through networked digital
technology.
Very much like the Telecommunications Act before it was passed, the "NII Copyright Protection Act" has received extraordinarily little mainstream media coverage, given that both of these reforms have the potential of thoroughly re-casting the way we live our lives. The way we communicate, educate ourselves, educate our children and each other and our ability to have acess to the cultural resources of an increasingly inter-dependent and inter-connected world are all at root dependent on the mechanisms and rules that emerge from these two pieces of legislation. Both have also served to polarize the interests of multi-national corporate giants and what is broadly called the public interest.
Since its establishment in the 18th century, copyright has always been about the balance between protection of the rights of the owners (often but not always the producers) of creative, original material and the exemptions to and limitations of those rights for the public good. This arrangement, flexible and subject to many detailed adjustments over its long history, is a central part of our cultural practice. It enables public and research libraries to function, it enables educational practice to be vibrant, scholarly research to be effective and artists and writers to build creatively on our cultural heritages.
The United States is not unfamiliar with the idea of an institution being subject to "checks and balances" and the balance between protection of rights and the freedom to use copyright material within certain well-defined limits, embodied in copyright law and practice for centuries, must be guaranteed in the digital future. That future, where many of the details of practice and of technological innovation are still unknown, should be governed by the principles of fairness, protection and affordable access that have governed the past. Many in the creative, research and educational communities are worried by the specter of a pay-per-view future in which reasonable access to the creative embodiments of the ideas of our time is denied or fettered by unreasonable demands by owners. On the other hand, owners of original work need reassurance that protection will be secure in the largely-unknown world of our digital future.
The underlying issue with copyright legislation both before the U.S. Congress and now before the World Intellectual Property Organization, is that proposals and language are being pushed through without widespread discussion of the issues. There *is* contention and there needs to be debate before national and international accord can be reached. I urge you all to familiarize yourself with the issues at stake and to broadcast to others the need to talk these issues through.
As reported in our previous newsletter the "NII Copyright Protection Act" ( H.R. 2441 and S. 1284), is stalled in Congress. Members of the House and Senate Subcommittees were alerted to the lack of accord on several components of the proposed legislation and it seems unlikely that further action will occur until the next legislative session.
It is imperative now for our community to act on the international front as the Administration is continuing to push ahead to gain agreement at the international treaty level, despite the clear sense of domestic discord on an issue that has not had the broad dissemination and discussion that it needs. Many individuals, associations, trade groups, members of congress and others are urging that more time be spent both domestically and internationally to assess the effect of issues raised in the proposed language.
For five years, members of The World Intellectual Property Organization (WIPO) have been preparing to amend the Berne Convention for the Protection of Literary and Artistic Works by voting on a new Protocol this December. Although most of the issues included in the new treaty text have been worked on for five years, the U.S. Administration's proposal to include a "digital agenda" arose only in September 1995, with the release of its White Paper simultaneously in Washington and Geneva. The clear intent behind the legislation was to gain quick acceptance and passage of a domestic act and agreement in Geneva before the end of 1996.
Concerns about these proposals are interestingly shared by major American industries, the cultural community, and consumer and privacy advocates. All are clearly agreed on the need for the legislation to prevent widespread "piracy" of copyright protected work. But whereas advocates of the proposed language stop at that, others examine the deeper implications of the US bill and the WIPO language. On-line service providers are not satisfied about their liability for transmission of copyright-infringing material by third parties; hardware manufacturers are reacting against sweeping language banning whole families of copying devices; the educational and cultural community need clear indications that the US practice of "fair use" be reaffirmed and be translated into specific limitations to and exemptions from copyright protection in international treaty language.
As the Digital Future Coalition has put it: "No domestic or international consensus on how best to modify U.S. or international law in order to maximize the potential of cyberspace" is in place. It is premature to move forward at this point.
1. Domestic
As a member of the Digital Future Coalition, NINCH concurs that the
planned diplomatic conference to amend the Berne Convention proceed
but that it be limited to matters previously considered by WIPO and
around which domestic and international consensus has been
substantially formed (these include protection of computer programs,
original databases, and copyright enforcement provisions).
NINCH supports DFC in its urging the leadership of both Houses of Congress to formally request of the Executive that the U.S. delegation to WIPO's 1996 Diplomatic Conference:
(1) formally propose that WIPO adopt a timetable for separate, future discussion and action on the "Digital Agenda" that will permit its careful prior consideration by the 105th Congress, and that will permit the US delegation to take Congressional action into account in subsequent treaty negotiations; and
(2) affirmatively work to assure in all appropriate WIPO bodies that no proposals related to the Digital Agenda are acted upon prior to Congress' full evaluation of these important issues and action on responsive legislation.
We surely want to avoid the difficult and embarrassing scenario of a modified Berne Treaty that, so unlike the NII Copyright Protection Act finally passed in Congress, would unlikely to be ratified by the US Senate.
2. International
Mirroring the Administration's activity in encouraging delegations
from other nations to support the US proposal, it is incumbent upon
all with international connections to open discussions with
ministries of culture and related bodies to encourage other national
delegations to postpone discussion of the digital agenda to a later
date, to give WIPO time for full consideration of these complex
issues. NINCH will work with DFC to provide international contacts as
required.
The Database Investment and Intellectual Property Antipiracy Act of 1996 (H.R.3531) was briefly introduced onto the floor by Rep Carlos Moorhead and also to the Geneva Committee of Experts at the end of May.
Numerous delegations in Geneva were reported to have felt it was premature to introduce a proposal at such a late stage in the proceedings. One of our concerns is the breadth of the definition of database. While original databases are already protected under copyright, this other class of "unique" or "sui generis" databases refers to any "collection, assembly or compilation, in any form or medium now or known or developed, of works, data or other materials, arranged in a systematic or methodical way." This would certainly include anthologies of humanities material. The proposed term of protection is 25 years, but any alteration to the database brings with it another 25 years, raising the virtual certainty of unending protection.
Another peculiar, not much trumpeted, development on the copyright front was a proposal from Sen. Orrin Hatch to move the Copyright Office out of the Library of Congress and in to the Executive Branch to form a new agency with the Trademarks and Patents Office (PTO), to be called the "United States Intellectual Property Organization." The Omnibus Patent Act of 1996, (S. 1961) was filed July 16. According to an outline prepared by the Judiciary Committee, the plan would require copyright operations to be self-supporting. The Copyright Office estimated that the cost of registering an item--even a single article, poem or photograph--could rise from the current $20 to $100. Some expressed concern over putting copyright matters into the hands of political appointees.
With some protest over the proposal itself as well as over the speed with which it was proposed, the bill is currently in limbo.
NWU Statement of Principles
The National Writers Union (NWU) is strongly supporting what may
prove to be a landmark lawsuit over the alleged unauthorized reuse of
writers' material on electronic databases by The New York Times
Company, Newsday Inc., Time Inc., Lexis/Nexis, and University
Microfilms Inc. A decision is expected in mid- to late-September.
The NWU has posted a statement of principles arising from the case, which takes into account the interests of the users of copyright material. Although rather strongly put, the principles bear examination. The National Writers Union also has background material on the case from their point-of-view.
NWU Authors Registry
In a related item, the
Authors Registry (a new non-profit licensing and royalty payment
agency) announced its first distribution of royalty checks this month
(totaling $15,000) to freelance and independent writers. The
royalties come from publishing's "aftermarket"--mostly photocopying
and electronic rights.
A big hurdle for independents who retain rights to their work has been handling the licensing and bookkeeping, where deals could involve many authors and repeated payments of, in most cases, small sums of money. Supported by most writers groups and some one-hundred literary agencies, the Author's Registry, following the lead of the music industry's ASCAP, was formed to help get small payments to large numbers of individual authors.
Some checks will be for retroactive payments from Harper's, the first magazine to share proceeds of new-media ventures with its contributors. The Harper's payments are a share of royalties received over the past six years from online and CD-ROM databases. Magazines such as "The Nation" and "Publishers Weekly" are ready to follow the lead of Harper's.
ON-LINE
IN PRINT
The Association of Research Libraries recently published
Copyright
and the NII: Resources for the Library and Education
Community, a compilation of material regarding the proposed
copyright legislation.
Ostensibly for librarians and educators, this is a useful
compendium of documents in print for all interested in the issues at
stake. Included are an overview of the Administration and
Congressional processes to date, an analysis of the legislative
proposals, statements from the key constituencies engaged in the
debate, and resources for action. The book also includes an
assessment of the potential consequences of the legislation,
concluding that the legislation could redefine the way librarians and
educators carry out their work.
Copyright and the NII: Resources for the Library and Education
Community, edited by Patricia Brennan; 150 pages, ISBN
0-918006-80-5, May 1996, $35.00
To order a copy, see
ordering information
ON-LINE & IN PRINT
"Who Owns Digital Works?"
A very good, lively, comprehensive overview of many of the issues at stake, with a little history and some excellent hypertext links (in the on-line version), is the article "Who Owns Digital Works?" by Yale University Associate Librarian, Ann Okerson, in the July 1996 issue of "Scientific American."
The online version is an excellent example of how rich and useful a hypertext article can be, with links to resources, test-cases and definitions (from Winnie-the-Pooh to Bruce Lehman). The author alludes to the substantial financial stakes involved in the current copyright scene, reviews the dynamics of copyright from sixth-century Ireland to contemporary tussles, the unbalanced nature of the current proposals, the fertile arena of Fair Use--and the invaluable, if frustrating role of CONFU (the Conference on Fair Use)-- and the need for widespread education about copyright concepts--now that everyone with a computer and modem is a publisher.
For comments or suggestions on this newsletter and
its content,
e-mail David Green or call
202/296-5346.
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