Appendix C: Update on Related Legislative Activity

At the April 1996 workshop on access management, Peter Jaszi (Washington College of Law, American University) gave a summary of current legislative activity relating to intellectual property rights, drawing attention to some potential problems for libraries. March 1998 had seen considerable activity in Congress, under pressure from the commercial sector, particularly from the motion picture and sound industries. According to Jaszi, the leading legislative proposals made no significant distinctions for scholarly communication or academic use. His impression was that there was an inclination to pass bills within the forty legislative days then left in the current session of Congress.

The proposals dealt with three issues, all of which had been under legislative consideration for more than two years: copyright term extension [HR 2589], database protection [HR2652], andWIPO implementation [HR 2281, Coble]. All three proposals had been reported out of the House Subcommittee on Courts and Intellectual Property and the House Judiciary Committee for floor action. HR 2589 had been referred to the Senate Judiciary Committee. Jaszi indicated that the Senate Judiciary Committee was considering passing the bills on for floor action without full consideration within the committee.

Term extension

HR 2589 would add 20 years of copyright protection for works currently under copyright protection. The extension would not apply to works for which copyright has already expired. The new copyright term would be the life of the author plus 70 years. The proposal included no concessions for academic use. According to Jaszi, the exemption for libraries and archives in relation to making copies of out-of-print works, for purposes of preservation, scholarship, or research, during the last 20 years of protection was weak.

Database protection

HR 2652 (the Collections of Information Antipiracy Act) proposed a new right for databases that are simply compilations but require significant investment. Based on principles of unfair competition rather than copyright, this bill was partly in response to the decision in Feist Publications v. Rural Telephone Service Co. Inc, [499 U.S. 340, 18 USPQ2d 1275(1991), 41 PTJC 443, 453]. Feist denied copyright protection to compilations, unless there is value added through selection, coordination, or arrangement. As written, this new protection for databases would apply to any information that can be organized systematically, including facts, numerical data, and works of authorship. Penalties would apply to those who damaged the actual or potential market for a protected database by extracting data. These penalties would apply to end users as well as to commercial re-users, although an amendment provides partial protection for nonprofit organizations. The period of protection is 15 years.

In response to a question, Jaszi confirmed that there is no associated requirement for deposit (as there is, under mandatory deposit regulations, for most published works protected by copyright). Jaszi reported that the exemptions for scientific and academic use have been described as ineffective.

WIPO implementation

HR 2281 would provide reasonable prohibitions and penalties relating to tampering with copyright management information. In addition, it included prohibitions against circumvention of copyright protection schemes, whatever the motivation. Jaszi regarded it as significant that the bill did not reaffirm the principle of fair use, offered no exemptions for digital preservation by libraries or distance education, and provided no preemption of contract terms by constitutional privileges or federal law. Jaszi noted that a pair of companion bills suggested an alternative approach to conformance with the World Intellectual Property Organization treaty that addressed many of these concerns. These are Senator John Aschroft’s (R-MO) Digital Copyright Clarification and Technology Act (S 1146) in the Senate and the Digital Era Copyright Enhancement Act (HR 3048), introduced by Reps. Rick Boucher (D-VA) and Tom Campbell (R-CA) in the House.

Jaszi noted that the committee actions on HR 2652 and HR 2281 were very recent. For updates, he recommended consulting the Web site of the Digital Future Coalition, which represents many library organizations, at