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 [log in to unmask] 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 ---- Online resources for film/TV studies may be found at ScreenSite http://www.tcf.ua.edu/screensite