[Fwd: [ALA-WO:747] ACT!/COPY: Copyright Issue Update - We Need Your Help!]

["Olga Francois" <ofrancois@xxxxxxxx>]

-------- Original Message --------
Subject: [ALA-WO:747] ACT!/COPY: Copyright Issue Update - We Need Your
Help!
Date: Mon, 12 Aug 2002 15:39:29 -0400
From: "ALAWASH E-MAIL" <ALAWASH@xxxxxxxxxxx>
To: ALA Washington Office Newsline <ala-wo@xxxxxxxxxxxx>

ALAWON: American Library Association Washington Office Newsline
Volume 11, Number 66
August 12, 2002

In This Issue: Copyright Issue Update

We're asking that you contact your Senators to express your concerns
about two copyright-related issues that may be coming up after the
August recess and could move quickly through Congress before it adjourns
for this session.  You can reach your Senators' Washington office
through the U.S. Capitol switchboard at 202-224-3121, or try to see them
while they're home on recess.

1. Anti-counterfeiting legislation
Background 
Senator Biden has introduced S. 2395, the Anti-counterfeiting Amendments
of 2002.  The bill is intended to create liability for trafficking in
illicit authentication features--a hologram, watermark, certification,
symbol, code or other means of designating that the product to which the
authentication feature is affixed is authentic.  The bill could pose
major problems for anyone exercising fair use.  The library community is
concerned that the bill could adversely impact librarians using
interlibrary loan and making preservation copies of works.  Potentially,
if the TEACH Act is enacted to update the copyright law for distance
education, the distribution of copyrighted material without permission
from the copyright owner could constitute a violation of the
anti-trafficking provisions of S. 2395.  The kinds of works included in
the bill are phonorecords, computer programs, and motion pictures and
other audiovisual works, all of which could be included in otherwise
exempt tran!
sactions. 

In addition, there may be problems in the remedies provisions of the
bill.  Perhaps most alarming, this bill modifies the US criminal code,
so that potential copyright infringement transaction -- or even exempt
uses such as fair use -- could be subject via trafficking in illicit
authentication measures to criminal penalties including imprisonment. 

Status:  The bill has been passed out of the Senate Judiciary Committee
without hearings or a report.  Just before the Senate's August recess,
there was an effort to pass the bill on the Senate floor on unanimous
consent.  Several Senators, however, placed a "hold" on the bill because
of numerous concerns from diverse groups, including libraries and
universities.  

Currently listed co-sponsors of the bill, in addition to Senator Joseph
Biden (D-DE), include the following:  
Sen. Barbara Boxer (D-CA)
Sen. Kent Conrad (D-ND)
Sen. Michael DeWine (R-OH)
Sen. Byron L. Dorgan (D-ND)
Sen. Dianne Feinstein (D-CA)
Sen. Orrin G. Hatch (R-UT)
Sen. Ernest F. Hollings (D-SC)
Sen. Patrick J. Leahy (D-VT)
Sen. Patty Murray (D-WA)
Sen. Benjamin E. Nelson (D-NE)
Sen. Gordon Smith (R-WA)
Sen. Strom Thurmond (R-SC)

Sen. George Allen (R-VA) withdrew his sponsorship on 8/1/2002 because of
his concerns about the bill.

What you need to do:  Contact your Senator - especially if he or she is
listed as a co-sponsor - to let them know that this bill should not be
passed until it receives careful analysis and until hearings are held. 
Your Senator should ensure that the bill not move forward.  The
carefully crafted balances of the Copyright Act should not be
circumvented by hastily drafted and considered amendments that have not
been the subject of even one hearing.

As currently drafted it has unintended consequences that could be very
harmful to our institutions and our users, as follows: 

* Copyright permits the copying of works in a wide variety of academic,
library, and private consumer settings.  S. 2395 would outlaw these
reproductions if they involve making and providing to others (or
"trafficking in") copies of works containing digital watermarks.  S.
2395 would also inhibit the removal of the watermarks from these
lawfully made copies.  S. 2395's requirement that the prohibited
trafficking involve "consideration" - transporting or transferring to
another in exchange for "anything of value" -- would be easily met
because libraries often receive reimbursement for the costs involved in
making copies for interlibrary loans, and scholars frequently exchange
materials of mutual interest.  

* S. 2395 imposes more severe penalties than the Copyright Act for
identical behavior.  Criminal liability under the Copyright Act attaches
only for willful infringements that result in private financial gain or
copies with a retail value of more than $1,000.  By contrast,
distributing a copy of even one song containing a digital watermark
could trigger criminal liability under S. 2395.  Thus, S. 2395 could
lead to criminal sanctions for minor infringements by ordinary
consumers, notwithstanding the bill's stated purpose of targeting
"organized criminal counterfeiting enterprises" that are a threat "to
the economic growth of United States copyright industries."

* S. 2395 also gives civil plaintiffs more remedies than are available
under the Copyright Act for identical conduct, including the potential
for far greater statutory damages as well as treble damages from repeat
offenders.

2. Database protection

Background:  As you are aware, there have been extensive discussions
throughout the 107th Congress among staff members of the House Energy
and Commerce Committee and the House Judiciary Committee to draft a
database protection bill that would be acceptable to all stakeholders,
including libraries and universities.  There is not yet any compromise
legislation, although there may yet be a bill introduced in the House in
the fall.  

Current status:  In the meantime, however, we have learned from many
Senate staff that one of the primary proponents of a broad database
protection bill has been asking various Senators to sponsor a bill that
our database coalition would find highly objectionable. 
http://www.ala.org/washoff/database02.pdf

What you need to do:  Contact your Senator to let him or her know that
the Senate should not move on any database protection bill without
hearings that include all stakeholders.  Moreover, you need to let both
your Senators and your Representative know that we believe that current
laws are more than adequate to protect these interests.  But, if
Congress is to consider a new law, we oppose any database bill that:

o would not allow "fair use" of databases comparable to that under
copyright law
o would protect facts, which copyright has never protected
o would allow a producer or publisher unprecedented control over uses of
information, including downstream, transformative use of facts and
government-produced data contained in a database
o would not provide safeguards against monopolistic pricing
o could hinder the progress of science, education, and research by not
allowing researchers and educators access to and use of information and
facts






******
ALAWON (ISSN 1069-7799) is a free, irregular publication of the American
Library Association Washington Office. All materials subject to
copyright by the American Library Association may be reprinted or
redistributed for noncommercial purposes with appropriate credits.

To subscribe to ALAWON, send the message: subscribe ala-wo
[your_firstname] [your_lastname] to listproc@xxxxxxx or go to
http://www.ala.org/washoff/alawon.  To unsubscribe to ALAWON, send the
message: unsubscribe ala-wo to listproc@xxxxxxxx ALAWON archives at
http://www.ala.org/washoff/alawon. 

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@xxxxxxxxxxx; Web site:
http://www.ala.org/washoff.  Executive Director: Emily Sheketoff. Office
of Government Relations: Lynne Bradley, Director; Camille Bowman, Mary
Costabile, Don Essex, Patrice McDermott and Miriam Nisbet. Office for
Information Technology Policy: Rick Weingarten, Director; Jennifer
Hendrix, Carrie Russell, Claudette Tennant. ALAWON Editor: Bernadette
Murphy.