HR passes WIPO implementing legislation including database protection

Subject: HR passes WIPO implementing legislation including database protection
From: Emanuella Giavarra (
Date: pe 07 elo    1998 - 13:52:15 EEST

American Library Association Washington Office Newsline

In this issue: (128 lines)



On August 4, almost one year to the day after the Clinton
Administration first sent legislation to implement World
Intellectual Property Organization (WIPO) copyright treaties, the
House approved by voice vote a substantially altered version of
that bill, H.R. 2281. However, the bill contains other
intellectual property legislation -- including overbroad database
protection legislation strongly opposed by ALA and many others.

The House action, made possible by intensive talks between the
House Commerce and Judiciary Committees, paves the way for
negotiations with the Senate over whether or in what form the
President may have the chance to consider the bill this fall.

House Commerce Committee Chairman Thomas Bliley (R-VA)
highlighted the importance of the Committee's insistence on
including "a strong fair use provision to ensure that consumers --
as well as libraries and institutions of higher learning --
will be able to continue to exercise their historical fair use
[and other] rights." Reps. John Dingell (D-MI), Scott Klug (R-WI)
and Rick Boucher (D-VA) were instrumental in crafting and
retaining protection for fair use in H.R. 2281.

Regarding the database portions of the package, Chairman Bliley
added, "[L]et me say that it is my hope that the House and Senate
Judiciary Committees will work to address the serious concerns of
many in public and private sector bodies. Congress needs to
address those concerns before enacting this portion of the bill."

Floor action on H.R. 2281 had been stalled after the Commerce
Committee on July 17 approved a very different bill than the one
approved by the House Judiciary Committee in April. For
example, the Commerce Committee iteration included provisions
designed to specifically protect fair use (see BACKGROUND below),
encryption research, the development of consumer electronic
equipment and personal privacy. The logjam apparently was broken
when the Judiciary Committee agreed to accept the Commerce
Committee's changes to H.R. 2281 in return for the Commerce
Committee's agreement to other intellectual property legislation
-- including overbroad database protection legislation -- in a
new version of the bill placed before the House.

While no formal Senate action on this legislation will be
possible until they reconvene on August 31, informal negotiations
among constituencies affected by the database protection
proposals have already begun. Despite the House action, the
possibility remains that proponents of the Administration's
original bill will seek to eliminate or weaken critical clauses
of H.R. 2281.

THANKS: ALAWON readers and others who have responded to the many
Action Alerts issued during the past year may and should take
great pride in the prominence of fair use, the public interest in
the House debate over this legislation, and the Commerce
Committee's strong actions to protect it.

The ALA Washington Office wishes to express its congratulations
and thanks to all of those who have fought so hard for so long to
achieve some measure of balance in the WIPO copyright legislation
-- and who may yet need to do so again this fall.

BACKGROUND: Summary of H.R. 2281 "Fair Use" Protection Regime and
Related Provisions

     -- Creates a statutory prohibition, effective 2 years
          after enactment, on the "circumvention" of any
          "effective technological protection measure" used to
          control "access" to a copyrighted work;

     -- Requires the Secretary of Commerce, in consultation
          with others (including a newly created "Undersecretary
          of Intellectual Property Policy"), to conduct a formal
          rulemaking proceeding in the two years after enactment,
          and every three years thereafter, to permit members of
          the public or institutions to demonstrate actual or
          likely "adverse effects" on all user privileges and
          rights stemming from the use of such technological
          measures to restrict access to any "class" of
          copyrighted works;

     -- Requires the Secretary to issue a three-year waiver of
          the anti-circumvention prohibition where more than de
          minimis adverse effect, or likely effect, is shown;

     -- Requires the Secretary, in the course of rulemaking to
          examine several factors, including (but not limited
          to): the availability of copyrighted works for use,
          preservation or educational purposes; the impact of the
          anti-circumvention prohibition on traditional fair use
          activities, such as criticism and news reporting; and
          the effect of circumvention on the market for or value
          of copyrighted works.

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Lynne E. Bradley, Editor <>
Deirdre Herman, Managing Editor <>

Contributors: Adam Eisgrau
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