Comments/Opinions/Suggestions - New Digital Copyright Rules Bad for the American Public

Date: Fri, 27 Oct 2000 09:01:03 -0400
From: Paul Kanciruk <pkk@ornl.gov>
Subject: Fwd: [MEMBER-FORUM:1908] NEW DIGITAL COPYRIGHT RULES BAD FOR THE AMERICAN PUBLIC (fwd)

ALAWON: American Library Association Washington Office Newsline
Volume 9, Number 85
October 26, 2000

In this issue:

New Digital Copyright Rules Bad for the American Public

The Librarian of Congress James Billington has ruled against the American public and library users by negating fair use in the digital arena. Billington allowed only two exceptions in the fair use proceeding involving the 1201 anticircumvention provision of the Digital Millennium Copyright Act (DMCA).

A preliminary review of the ruling reveals that Billington adopted recommendations by Marybeth Peters, Register of Copyrights, to provide exemptions only for malfunctions and to determine which sites are blocked by filtering software. The exemption related to circumventing filtering software may be useful although problematic.

The library community as well as members of Congress, the U.S. Department of Commerce, the K-12 and higher education communities, and many others have argued in the 1201 proceeding and elsewhere, that the longstanding principle of fair use must continue in the digital era. Because of this decision users of digital information will have fewer rights and opportunities than users of print information. In fact, the pay-for-use scenario that librarians have feared appears to have now become a reality with this rule.

"The Copyright Office has issued a misguided ruling taking away from students, researchers, teachers and librarians the long standing basic right of "fair use" to our Nation's digital resources," said Nancy Kranich, ALA president. "All library users will be impacted."

ALA, in conjunction with the American Association of Law Libraries, the Association of Research Libraries, the Medical Library Association and the Special Libraries, submitted strong filings and testimony in the proceeding arguing that there should be exemptions from the Copyright Act's new restrictions against accessing copyright works that are protected by technological measures.

Peters' conclusion in her recommendations to the Librarian of Congress reads as follows:

CONCLUSION

Pursuant to the mandate of 17 U.S.C. 1201 (b) and having considered the evidence in the record, the contentions of the parties, and the statutory objectives, the Register of Copyrights recommends that the Librarian of Congress publish two classes of copyrighted works where the Register has found that non-infringing uses by users of such copyrighted works are, or are likely to be, adversely affected, and the prohibition found in 17 U.S.C., 1201 (a) should not apply to such users with respect to such class of work for the ensuing 3-year period. The classes of work so identified are:

1. Compilations consisting of lists of Websites blocked by filtering software applications; and

2. Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness.

The Register notes that any exemption of classes of copyrighted works published by the Librarian will be effective only until October 28, 2003. Before the period expires, the Register will initiate a new rulemaking to consider de novo what classes of copyright works, if any, should be exempt from 1201 (a)(1)(A) commencing October 28, 2003.

ALA is reviewing the ruling in great detail. Options now include requesting a reconsideration of the ruling as well as litigation.

For background see ALAWON volume 9, number 16:
(http://www.ala.org/washoff/alawon/alwn9016.html)
and volume 9, number 33:
(http://www.ala.org/washoff/alawon/alwn9033.html)
and the ALA Issue Brief:
http://www.ala.org/washoff/Rulemaking.PDF

The Librarian's ruling is expected to be published in the Federal Register on October 27th or 30th. For information about the rulemaking process, see the Library of Congress web site: http://www.loc.gov/copyright/1201/anticirc.html

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ALA Washington Office, 1301 Pennsylvania Ave., N.W., Suite 403, Washington, D.C. 20004-1701; phone: 202.628.8410 or 800.941.8478 toll-free; fax: 202.628.8419; e-mail: alawash@alawash.org; Web site: http://www.ala.org/washoff. Executive Director: Emily Sheketoff. Office of Government Relations: Lynne Bradley, Director; Mary Costabile, Peter Kaplan, Miriam Nisbet and Claudette Tennant. Office for Information Technology Policy: Rick Weingarten, Director; Jennifer Hendrix, Carrie Russell and Saundra Shirley. ALAWON Editor: Bernadette Murphy.