ALAWON, Vol. 4, No. 17, Part 2 of 2

[ALA Washington Office]

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                                                             ISSN 1069-7799
                                  ALAWON
                      ALA Washington Office Newsline
                     An electronic publication of the
              American Library Association Washington Office

                            Volume 4, Number 17
                                Part 2 of 2
                               March 2, 1995

   In this issue: (507 lines)
     ALA SUMMARIZES DISAGREEMENTS WITH "GREEN PAPER" ON COPYRIGHT -
          FULL TEXT OF LETTER AND RELATED MATERIALS

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       ALA SUMMARIZES DISAGREEMENTS WITH "GREEN PAPER" ON COPYRIGHT
                 FULL TEXT OF LETTER AND RELATED MATERIALS

       (Continuation of report from ALAWON, Vol. 4, No. 17, Part 1.)

BACKGROUND:
The Green Paper was issued on July 7, 1994 as _Intellectual Property and
the National Information Infrastructure: A Preliminart Draft of the Report
of the Working Group on Intellectual Property Rights_.  (For information
about the report, contact NII, USPTO, Box 4, WAshington, DC 20231-0001, or
call 703-305-9300.)  More than 1000 pages of comments were filed on the
draft report.  ALA and other library groups testified at public hearings,
filed comments, submitted reply comments, and have participated in fair use
conferences facilitated by the PTO.

The full text of the letter from the library groups follows:


                               February 14, 1995
Ms. Sally Katzen
Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
Old Executive Office Building
17th and Pennsylvania Avenue, N.W.
Washington, D.C.  20503

Mr. Bruce A. Lehman
Commissioner of Patents and Trademarks
Patent and Trademark Office
Crystal Park
Arlington, VA 22202

Dear Administrator Katzen and Commissioner Lehman:

     We are writing to express our continuing concern about press and
other reports that the recommendations in the final version of the
"Green Paper" by the Working Group on Intellectual Property Rights will
not be significantly different from the preliminary version released in
July 1994.  A December 27 Wall Street Journal article stated: "Mr.
Lehman said the final report in March or later will be similar to the
draft, which drew more comments than expected." The same article said
that Mr.  Lehman viewed various critiques of the Green Paper as
"misunderstandings." More recently, at a January 4 meeting of the
Working Group's deliberations on fair use, Terri Southwick, a member of
the Working Group confirmed the Journal's account by saying the Working
Group did not envision any need for significant changes to the final
report.

     These statements are troubling to our organizations, which have
a long history of involvement in the development of equitable national
copyright policies.  From the outset, the American Library Association,
the Association of Research Libraries, the American Association of Law
Libraries, the Association of College and Research Libraries, the
Medical Library Association, the Association of Academic Health Sciences
Library Directors, the Special Libraries Association, and the
Association of American Universities have commended the efforts of the
Working Group to address the complex intellectual property challenges
posed by new digital technologies.  Yet we and others believe that the
initial version of the Green Paper missed the mark on a number of key
points and requires revision.

     Allow us to take this opportunity to summarize what we believe
to be significant points of disagreement that various parties have
expressed to the analysis in the initial version of the Green Paper.
The memorandum that follows summarizes the concerns of a number of
library and education groups and also refers to statements submitted in
this proceeding by distinguished copyright experts and private sector
entities.

     We would very much appreciate an opportunity to meet with you to
clarify whether or not these statements by members of the Working Group
continue to reflect the Working Group's deliberations and to address our
continuing concerns with the proposed recommendations.  It is our hope
that the final version of the Green Paper will take these serious
concerns by a diverse array of public and private sector enterprises
into consideration thus leading to needed changes in the proposed draft
recommendations.

Sincerely,

Robert L. Oakely
Washington Affairs Representative, AALL

Arthur Curley,
President, ALA

Karen Brewer
President, AAHSLD

John C. Vaughn
Executive Officer and Director of Education Policy, AAU

Susan K. Martin
President, ACRL

Duane E. Webster,
Executive Director, ARL

Carla Funk
Executive Director, MLA

David R. Bender
Executive Dirctor, SLA


Attachment

THREE KEY CONCERNS OF LIBRARIES AND OTHER PUBLIC AND PRIVATE SECTOR
     ORGANIZATIONS IN RELATION TO THE "GREEN PAPER"


General

     This memorandum summarizes three key concerns of library,
educational, and corporate organizations, as well as those of selected
distinguished experts, regarding the preliminary draft of the report
--Intellectual Property and the National Information Infrastructure--
(the "Green Paper"), prepared by the Working Group on Intellectual
Property Rights, under the direction of Bruce Lehman, Assistant
Secretary of Commerce and Commissioner of Patents and Trademarks.  The
statements outlined here were taken from prepared comments submitted to
the Working Group.

     This memo focuses on fair use, electronic transmission rights,
and the first sale doctrine.  In each of these areas, the concerns of
the library groups--the American Library Association, the Association of
Research Libraries, the American Association of Law Libraries, the
Association of College and Research Libraries, the Medical Library
Association, the Association of Academic Health Sciences Library
Directors, and the Special Libraries Association; collectively referred
to as The Libraries and the Association of American Universities (AAU)
-- are presented first.  These positions are followed by the comments of
other parties, including the Clinton Administration's NII Advisory
Council.  The comments from other parties either match the concerns of
the Libraries and AAU or raise similar concerns with the recommendations
presented in the Green Paper.


I.  Fair Use

     The Libraries and AAU noted that by postponing its consideration
of fair use, as well as of copyright exceptions for libraries and
classroom instruction, the Working Group prevented complete analysis and
public dialogue on legislative changes needed to achieve universal,
equitable access to the new types of information that will be available
over the NII.  Nor does the draft report analyze the implications of the
proposed recommendations on fair use nor indeed, the importance of fair
use to research, education, and the creation of new knowledge.  This
failure to evaluate the impact of the new recommendations and the
importance of fair use is a severe shortcoming of the draft report.

     The Working Group through the Green Paper is setting policy
without the determination by Congress that the balance between copyright
holders and users of copyrighted material should be adjusted.  Many of
the interested groups, including some proprietors, believe that fair use
is working satisfactorily and that there is no need to revise the law.
If there is need for a change in fair use, the Working Group should
provide a better opportunity for discussion among all the interested
parties.

     The Libraries and AAU have long argued the centrality of fair
use in copyright policy making.  In its recent Statement of Principles
on Intellectual Property, the Association of Research Libraries stated:
"Fair use and other relevant provisions are the essential means by which
teachers teach, students learn, and researchers advance
knowledge...These provisions apply to all formats and are essential to
modern library and information services."

     After the Green Paper was released, subcommittees were formed to
discuss and consider the development of new fair use guidelines in a
variety of settings.  Library organizations and many others have
contributed a great deal of valuable research and commentary to the work
of these subcommittees.  We understand that the final version of the
Green Paper will include some of the subcommittees deliberations.  But
we believe that the final report will need to go far beyond those
discussions and provide a thorough and complete analysis of the impact
of the proposed recommendations on fair use and the importance of
retaining a balanced system of access to information.

     This position was also taken by the NII Advisory Council, which
in its December 1994 Response to the Green Paper, stated its "concern
that the application of fair use in the NII environment be adequately
explored in the Working Group's final report." The U.S.  Copyright
Office expressed concern that the Working Group seemed to think that
fair use in the electronic environment is reserved for the "have nots."
It recommended that more effort be made to see that the interests of
"authors, publishers, scholars, librarians, information technology
service providers, and public and government policy makers" are all
represented.

     We share the concern of the U.  S.  Copyright Office.  Not only
does the Green Paper fail to acknowledge the balance established by the
law between users and holders, but it attempts to set new policy by
suggesting that fair use is reserved for the "have nots." We believe
that such a scheme is unworkable.  Who will qualify as a "have not"
whose use of copyrighted materials is permissible: school children; the
unemployed; or, those whose income places them below the poverty line?

     The significance of fair use was also emphasized by some of the
private-sector comments.  McGraw-Hill, Inc., noting that its journalists
"make extensive fair use of copyrighted materials in their daily news
gathering efforts," stated that fair use will be important to the
development of the NII.  The Alliance to Promote Software Innovation
stated: "It is our view that the NII does not alter the public policy
considerations which led to the creation of these [fair use] rules.  We
encourage you to expand the scope of your analysis to cover a broader
range of fair use considerations."


II.  Transmission Right

*    Calls for Greater Balance of the Competing Interests

     The Libraries and AAU argued that the initial Green Paper went
too far in extending the exclusive rights of copyright holders and paid
only superficial attention to the needs of users of electronic
information.  As Laura Gasaway, Professor of Law and Director of the Law
Library at the University of North Carolina at Chapel Hill, said in her
comments: "Whatever changes are made must take into account not only the
copyright owner's rights and interests but those of the general public,
educational users, scholars and researchers."

*    Historic Impact of Proposed Statutory Changes

     Jessica Litman, Professor of Law at Wayne State University, and
other legal experts have argued that the positions taken in the initial
Green Paper would change the reproduction right into something more
encompassing than has ever existed.  "U.S.  copyright law," Litman
wrote, "has always given copyright owners some form of exclusive
reproduction right.  It has never before now given them an exclusive
reading right, and it is hard to make a plausible argument that Congress
would have enacted a law giving copyright owners control of reading."

*    Transmissions as Copies

     The Green Paper states that it is technologically impossible to
distribute a work over the NII without making a copy.  However, the U.S.
Copyright Office states that "in the future it may be possible to
distribute live performances and other transmissions without making a
copy...  The Working Group should consider whether all transient copies
would infringe the reproduction right and whether they should be covered
by an expanded distribution right."

     The Home Recording Rights Coalition (whose members include
retailers and manufacturers of audio and video recording products as
well as consumers) argued that "the proposal for a new [transmission]
right seems superfluous in light of courts' acceptance of such a right
under current law.  Such a provision could be interpreted so as to
reclassify acts of distribution as reproductions, effectively rescinding
existing consumer rights under the fair use and first sale doctrines."

     IBM noted that the Green Paper's inclination to designate a
given transmission as either a copy or a performance may be too
inflexible, while Pamela Samuelson, Professor of Law at the University