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

[ALA Washington Office]

of Pittsburgh, stated: "Adoption of the digital transmission right
would, in effect, repeal the public performance and display rights of
copyright and replace them with exclusive rights to control all
performances and displays of copyrighted works distributed in digital
form...[T]he Report does not make a persuasive argument on behalf of
this vast expansion of the rights of copyright owners."

*    Primary Purpose Test

     The NII Advisory Council criticized the Green Paper's attempt to
designate a transmission either as a distribution of a copy or a
performance and rejected the paper's "primary purpose or effect" test
for distinguishing between transmission of reproductions and
performance.  ASCAP disputed the practicality of the primary purpose
test, arguing that the Green Paper's statement that only one of these
rights should be recognized is seriously flawed.  BMI also criticized
the proposed test, arguing that it would not serve creators' ability to
subdivide and license the right to their works profitably, nor benefit
the public.  The U.S.  Copyright Office commented that this test would
be difficult to administer since it would require determining the intent
of the sender and, in addition, would lead to much litigation.

*    Unintended Effects of Proposed Changes, including
definitional change

     The U.S.  Copyright Office, for example, stated: "Modifying the
concepts of publication and transmission is not minor; the proposed
amendment would have broad ramifications throughout the copyright
law--e.g., applicability of the digital audio technology system, fair
use and library reproduction under Sec.  108." The Public Broadcasting
Service said that since the proposed amendment to the definition of
"publication" would apply to some but not all transmissions, this would
"lead to confusion, uncertainty, and litigation."

*    Coverage of Online Services

     Comments submitted jointly by America Online, Inc.  CompuServe,
Inc., Delphi Internet Services Corp., GE Information Services Inc.,
LEXIS, Prodigy Services Co., and Ziff Communications Co.  criticized the
Green Paper for failing to address the issue of whether online service
providers are responsible for copyright violations by users of their
services.  A partial list of their recommendations included: the Working
Group must reach a proper balance among the rights and interests of
creators, consumers, and service providers; it should recommend no
legislative change that would result in stifling the growth of online
services; it should examine whether and when service providers should be
held liable for copyright infringement; and the liability standard under
the U.S.  Copyright Act should be amended to be consistent with the
existing standards for contributory liability.

     Bell Atlantic also criticized the failure of the Green Paper to
address criteria for network liability.  Specifically, it argued that
concepts of vicarious and contributory infringement should be subject to
a requirement of willful or knowing conduct.


III.  First Sale

*    Objection to Proposed Change

     The Libraries and AAU strongly opposed the abolition of the
first sale doctrine for electronic information.  As the American Library
Association stated: "Elimination of the first sale doctrine would
effectively give copyright owners control of the secondary market, and
thus empower them with far too great a monopoly.  The effect would be to
reduce competition and advance inequities in access--with results
antithetical to the intent of copyright and the working group's stated
intentions."

     Others also had problems with the Working Group's position.
Bell Atlantic maintained that elimination of the first sale doctrine for
electronic transmission would be bad for business: "Eliminating the
first sale doctrine in cases of transmissions would mean that any
further disposition of the products listed in the above examples would
constitute an infringement.  The disposition of such products purchased
in a store, however, would continue to be a permitted right under the
first sale doctrine.  This nonsensical outcome indicates that the test
should not focus on whether the owner retains the original work but
whether the work received via transmission was intended for subsequent
use (a purchase) or licensed for a limited use only.  The recommendation
to eliminate the first sale doctrine runs counter to the notion of
letting the market govern itself."

     The Association of American Universities said it is easy to
imagine circumstances in which the person who possesses a copy passes it
on to another and does not retain a copy; in such cases, the right of
first sale should apply.  The Information Industry Association urged the
Working Group to consider how the term "dispose" in the Copyright Act
could be interpreted to cover cases in which the first owner of a
digital works relinquishes physical control over, or access to his or
her copy.  Time Warner stated that it may not be necessary to amend the
law in this area: "Either by relying on the reproduction right or with
the clarification of the distribution right to include copies sent by
transmission, current law for first sale would appear adaptable to the
electronic environment."

*    Inconsistent Consequences

     The U.S. Copyright Office said that under the proposed
modification, "transfer of the material object would be permitted, while
transfer over the infrastructure would be prohibited.  From a practical
point of view, whether a disc is mailed or a copy is sent over the
information infrastructure should not make any difference in the way the
transfer is treated under copyright law." National Public Radio advised
that, "by broadening the term 'transmit' and using that term to describe
a new type of distribution right, the Working Group's proposal could
generate confusion in an already complex area of the law and potentially
create new liability for existing broadcast uses of copyrighted works."

     The Online Service Providers said: "The Working Group should not
propose new rights for copyright owners without considering whether such
rights would have an adverse effect on providers' operations and would
delay or economically burden users' access to technology." The
technologies underlying online transmission networks include wireless
distribution channels, cable television, personal computers, satellite
channels and other emerging interactive systems.


Conclusion

     This memo has attempted to summarize the views on several key
issues of many parties both public and private that believe that the
initial Green Paper, while notable for trying to tackle difficult and
complex issues, did not present a complete and balanced presentation of
the issues regarding copyright and electronic networks.  Library
community, industry representatives, and copyright experts were among
those calling for significant modifications to the Green paper draft
recommendations.

     The Working Group on Intellectual Property is engaged in an
historic task of recommending changes to the nation's copyright laws to
reflect the dramatic changes in technology we are experiencing.  These
changes are complicated, and they affect intellectual property in varied
and unexpected ways.  Therefore, we urge the Working Group to give full
consideration to all the arguments that have been presented and to
reflect these arguments in revised recommendations included in the final
report.

__________________________________________

THE AMERICAN ASSOCIATION OF LAW LIBRARIES - AALL is a nonprofit
educational organization with over 5,000 members dedicated to serving
the legal information needs of legislators and other public officials,
law professors and students, attorneys, and members of the general
public.

THE AMERICAN LIBRARY ASSOCIATION is a non-profit educational
organization of 55,000 librarians, library educators, information
specialists, library trustees, and friends of libraries representing
public, school, academic, state, and specialized libraries dedicated to
the improvement of library and information services.  A new five-year
initiative, ALA Goal 2000, aims to have ALA and librarianship be as
closely associated with the public's right to a free and open
information society -- intellectual participation -- as it is with the
idea of intellectual freedom.

THE ASSOCIATION OF ACADEMIC HEALTH SCIENCES LIBRARY DIRECTORS is
composed of the directors of 142 accredited U.S.  and Canadian medical
schools belonging to the Association of American Medical Colleges.
AAHSLD's goals are to promote excellence in academic health sciences
libraries and to ensure that the next generation of health practitioners
is trained in information-seeking skills that enhance the quality of
health care.

THE ASSOCIATION OF AMERICAN UNIVERSITIES was founded in 1900 by a group
of fourteen universities offering the Ph.D.  degree.  The AAU currently
consists of fifty-six American universities and two Canadian
universities.  Approximately half are public institutions and half are
private.  The Association serves its members in two major ways.  First,
it assists them in developing national policy positions on issues that
relate to academic research and graduate and professional education.
Second, it provides them with a forum for discussing a broad range of
other institutional issues, such as undergraduate education.

THE ASSOCIATION OF COLLEGE AND RESEARCH LIBRARIES is a division of the
American Library Association with more than 10,000 organizational and
personal members.  The mission of ACRL is to foster the profession of
academic and research librarianship and to enhance the ability of
academic and research libraries to serve effectively the library and
information needs of current and potential library users

THE ASSOCIATION OF RESEARCH LIBRARIES is a not-for-profit organization
representing 119 research libraries in the United States and Canada.
Its mission is to identify and influence forces affecting the future of
research libraries in the process of scholarly communication.  ARL
programs and services promote equitable access to and effective use of
recorded knowledge in support of teaching, research, scholarship, and
community service.

THE MEDICAL LIBRARY ASSOCIATION is a professional organization of more
than 5,000 individuals and institutions in the health sciences
information field.  MLA members serve society by developing new programs
for health sciences information professionals and health information
delivery systems, fostering educational and research programs for health
sciences information professionals, and encouraging and enhanced public
awareness of health care issues.  Through its programs and publications,
MLA encourages professional development in research, education, and
patient care.

THE SPECIAL LIBRARIES ASSOCIATION is an international professional
association serving more than 14,000 members of the information
profession, including special librarians, information managers, broker,
and consultants.  The Association has 56 regional/state chapters in the
U.S., Canada, Europe, and the Arabian Gulf States and 28 divisions
representing subject interests or specializations.  Special
libraries/information centers can be found in organizations with
specialized or focused information needs, such as corporations, law
firms, news organizations, government agencies, associations, colleges,
museums, and hospitals.

***************************************************************************
***************************************************************************

ALAWON (ISSN 1069-7799) is an irregular publication of the American Library
 Association
Washington Office, 110 Maryland Avenue, N.E., Washington, DC 20002-5675.
 Internet:
alawash@alawash.org; Phone: 202-547-4440; Fax: 202-547-7363.  Contributing to
 this issue:
Carol C. Henderson; Editor: Lynne E. Bradley (leb@alawash.org).

ALAWON is available free of charge and is available only in electronic form.  To
subscribe, send the message "subscribe ala-wo [your name]" to listserv@uicvm
 (Bitnet) or
listserv@uicvm.uic.edu (Internet).  Back issues and other documents are
 available from the
list server.  To find out what's available, send the message "send ala-wo
 filelist" to the
listserv.  The ALA-WO filelist contains the list of files with the exact
 filename and
filetype.  To get a particular file, issue the command "send filename filetype"
 to the
listserv.  Do not include the quotes in your commands.

All materials in the newsletter subject to copyright by the American Library
 Association
may be reprinted or redistributed for noncommercial purposes with appropriate
 credits.
For other reprinting or redistribution, address requests to the ALA Washington
 Office
(alawash@alawash.org).

***************************************************************************
***End of file******************End of file******************End of file***