Subject: US Copyright Bills Pass Congress
From: Emanuella Giavarra (ecup.secr@dial.pipex.com)
Date: ke 14 loka 1998 - 14:22:01 EEST
ALAWON Volume 7, Number 125
ISSN 1069-7799 October 13, 1998
American Library Association Washington Office Newsline
In this issue: (217 lines)
[1] WIPO COPYRIGHT TREATY AND TERM EXTENSION BILLS CLEAR
CONGRESS; DANGEROUS DATABASE BILL DERAILED BUT BOUND TO
RETURN IN 1999
[2] DIGITAL MILLENNIUM COPYRIGHT ACT GUIDE
[3] COPYRIGHT TERM EXTENSION ACT GUIDE
_________________________________________________________________
[1] WIPO COPYRIGHT TREATY AND TERM EXTENSION BILLS CLEAR
CONGRESS; DANGEROUS DATABASE BILL DERAILED BUT BOUND TO
RETURN IN 1999
By separate voice votes taken on October 12 and 7 respectively,
both chambers of Congress have approved the conference report
(105-796) on the Digital Millennium Copyright Act (H.R. 2281) and
on identical versions of the Copyright Term Extension Act (S.
505). President Clinton has indicated that he will sign the
bills.
Those actions bring to a close more than three years of intensive
work by ALA, library supporters and other groups to shape the
national and international debate over how best to update the
nation's copyright laws for the digital age. Significantly, the
H.R. 2281 conference committee deliberately elected not to
include in its report the Collections of Information Antipiracy
Act (S. 2291/H.R. 2652), a proposal to provide sweeping new legal
protection for collections of information, including those not
presently protected by copyright.
While the legislative debate about how to implement the new WIPO
copyright treaties and whether to add 20 years to the term of
copyright protection may be over, both bills as finally adopted
present ongoing opportunities and pitfalls for libraries,
archives and educational institutions. Moreover, fierce
legislative debate over database protection is expected to resume
in earnest shortly after the new 106th Congress convenes in late
January 1999.
Here is a brief guide to what Congress has done in the Digital
Millennium Copyright Act and the Copyright Term Extension Act ...
and left libraries to do in the future:
_________________________________________________________________
[2] DIGITAL MILLENNIUM COPYRIGHT ACT GUIDE
PURPOSE: Update the current Copyright Act for the digital
environment and conform U.S. law to the requirements of new World
Intellectual Property Organization (WIPO) treaties negotiated in
Geneva in December 1996.
FUTURE LIBRARY ROLE: As detailed below, assuring that all kinds
of copyrighted works remain available for fair use (and other
lawful uses). The adoption of the Digital Millennium Copyright
Act could depend in large part upon the success of librarians and
library supporters in collecting and organizing evidence of the
law's adverse or potentially adverse effects. In addition,
librarians will have the opportunity to assist the Register of
Copyrights in making recommendations to Congress early in 1999 as
to whether (and, if so, how) the Copyright Act should be updated
to better facilitate distance education.
KEY PROVISIONS: ALA, together with other major national library
associations and its partners in the Digital Future Coalition,
has struggled to maintain the traditional balance in copyright
law between protecting information and affording access to it by:
1) helping Congress to craft entirely new law with this balance
in mind; and 2) updating information users' existing rights and
privileges to take changed technologies and practices into
account. These efforts necessarily implicated many parts of the
Digital Millennium Copyright Act identified with separate
headings below:
TITLE I: NEW PROHIBITIONS ON CIRCUMVENTION OF PROTECTION
TECHNOLOGIES
* Prohibits the "circumvention" of any effective
"technological protection measure" (e.g., a password or
form of encryption) used by a copyright holder to
restrict access to its material;
* Prohibits the manufacture of any device, or the
offering of any service, primarily designed to defeat
an effective "technological protection measure;"
* Defers the effective date of these prohibitions for two
years and 18 months, respectively;
* During those two years, and then every three years
thereafter, requires the Librarian of Congress (through
the office of the Register of Copyrights), to conduct a
formal "on the record" rulemaking proceeding to
determine whether the "anti-circumvention" prohibition
will "adversely affect" information users' (both
individuals and institutions) "ability to make
noninfringing uses" of "a particular class of
copyrighted works" (NOTE: the term "class" was
deliberately left undefined, but is intended to be
fairly narrow, e.g., history texts, digital maps, or
personal finance software);
* Requires that the Librarian issue a three-year waiver
from the anti-circumvention prohibition with respect to
any class of work to which the new law has adversely
affected (or is likely to affect) access for fair use
and other noninfringing uses;
* Exempts nonprofit libraries, archives and educational
institutions from criminal penalties and allows for
nullification of any civil fine when such an
institution can demonstrate that it had no reason to be
aware that its actions violated the new law;
* Expressly states that many valuable activities based on
the Fair Use Doctrine (including reverse engineering,
security testing, privacy protection and encryption
research) will not constitute illegal
"anticircumvention;"
* Makes no change to the Fair Use Doctrine, or to other
information user privileges and rights;
TITLE II: LIMITATIONS ON ONLINE SERVICE PROVIDER LIABILITY
* Exempts any "online service provider" or carrier of
digital information (including libraries) from
copyright liability based solely on the content of a
transmission made by a user of the provider's or
carrier's system (e.g., the user of a library computer
system);
* Establishes a mechanism for avoiding copyright
infringement liability based upon the storage of
infringing information on an online service provider's
own computer system, or upon the use of "information
location tools" and hyperlinks, if the provider acts
"expeditiously to remove or disable access to"
infringing material identified in a formal notice by
the copyright holder.
TITLE IV: INCLUDES DIGITAL PRESERVATION AND DISTANCE EDUCATION
DIGITAL PRESERVATION
* Updates the current preservation provision of the
Copyright Act (Sec. 108) to:
-- expressly permit authorized institutions to make up
to three, digital preservation copies of an eligible
copyrighted work;
-- electronically "loan" those copies to other
qualifying institutions;
-- permit preservation, including by digital means,
when the existing format in which the work has been
stored becomes obsolete.
DISTANCE EDUCATION
* Charges the Register of Copyrights with reporting to
Congress within six months of the bill's effective date
on "how to promote distance education through digital
technologies";
* Encourages the Register to formulate such
recommendations as statutory proposals
* Specifies eight factors to be considered by the
Register, including: "the extent to which the
availability of licenses for the use of copyrighted
works in distance education through interactive digital
networks should be considered in assessing eligibility
for any distance education exemption...."
_________________________________________________________________
[3] COPYRIGHT TERM EXTENSION ACT GUIDE
PURPOSE: To extend by 20 years the length of protection afforded
to works created by both individuals and corporate copyright
holders.
FUTURE LIBRARY ROLE: By taking full advantage of the limited but
important exemption described below, libraries, archives and
nonprofit educational institutions can minimize the practical
impact of this unfortunate legislation.
KEY PROVISIONS:
* Extends the term of copyright from "life +50 years" to "life
+70 years" for individual authors and to 95 years from 75
years for corporate "creators";
* Applies both prospectively and to all works still under
copyright on the bill's effective date;
* Includes an exception permitting libraries, archives and
nonprofit educational institutions to treat a copyrighted
work in its last (new) 20 years of protection as if it were
in the public domain for noncommercial purposes, provided
that: 1) a good faith investigation has determined that the
work is "not subject to normal commercial exploitation," and
2) such use of the work stops if the copyright owner
provides notice to the contrary (even if the work had never
before been exploited).
_________________________________________________________________
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