Copyright bills crowd U.S. congressional agenda

Information Outlook, Oct, 1997 by John Crosby

Just prior to leaving Washington for summer recess, legislation was introduced in both the House and the Senate that would amend existing U.S. copyright law in order to observe the agreements made during the WIPO diplomatic conference. with a deadline for global ratification of the treaties set for midnight, December 31, 1997, time is of the essence. Congress has a full plate to consider prior to adjournment for the year. With the 1998 budget and several other commitments waiting in the wings, there's not much time for serious debate on copyright law.

No one should be surprised. Earlier this year, the Chemical Weapons Convention Treaty was approved at a very late hour. In 1993, the North American Free Trade Agreement (NAFTA) was ratified on the last possible day. With the WIPO Treaties, Congress must ratify them and ensure that U.S. law is compliant. Ratification will be easy. It's the implementation within U.S. law that will be difficult.

H.R. 2281 and S. 1121, both titled "The WIPO Treaties Implementation Act", would institute a ban on all devices that are used to circumvent copyright protection systems. Additionally, both would hold individuals liable for removing copyright management information that is designed to protected copyrighted works.

The "black box" provision - as the proposal has been described - threatens to stifle innovation and would negate whatever rights are accorded to users under copyright law. It could be read by a court to prohibit the use of any electronic components in the design of a recorder or computer that fail to respond to any anti-copy technology that a content owner might choose.

If enacted, the proposal would:

* damage education and research by allowing copyright owners to "lock up" public domain materials, and frustrate the "fair use" rights of information consumers;

* impede encryption research, which helps ensure secure networks;

* prevent legitimate "reverse engineering" in the development of new software (effectively overturning a series of judicial decisions recognizing it as a legitimate "fair use");

* outlaw or force the redesign of perfectly legitimate devices with substantial non-infringing uses (effectively overruling the Supreme Court's Betamax decision that spawned the VCR revolution to the benefit of all American consumers);

* give judges the authority to second-guess manufacturers' decisions about the best design for new generations of consumer electronic equipment and computers;

* frustrate efforts to provide parents with the capability to monitor and control children's online activities; and

* threaten the personal privacy rights of electronic consumers by penalizing those who resist efforts to track their online usage.

Just as significant is what the bills do not address. H.R. 2281 and S. 1121 fail to confront fair use, the first sale doctrine, library preservation, distance learning, online service provider liability, and the enforceability of non-negotiated license terms. Such matters should be resolved in order to maintain the existing balance in U.S. copyright law.

SLA is very supportive of the treaties that were approved by WIPO during its diplomatic conference in Geneva last year. The language of the agreements required that participating nations provide "adequate legal protection...against the circumvention of effective technological measures." Unfortunately, the legislative proposal that was submitted to Congress by the Clinton Administration is too broad to receive the support of the information users community.

The matter of online service provider (OSP) liability is actually addressed through separate legislation. H.R. 2180, The Online Service Provider Liability Act, establishes certain liability exemptions for Internet and online service providers when copyrighted works are received, transmitted, distributed, or otherwise made available on the Internet or an online service. While the legislation is a good starting point for the debate, SLA and the Digital Future Coalition have called for the provisions to be clarified and incorporated into the WIPO Treaty Implementation Act.

To make matters worse, yet another piece of legislation has been introduced that would expand criminal penalties for willful infringement of copyright law. H.R. 2265, The No Electronic Theft (NET) Act would make willful infringement via electronic reproduction a criminal act and would also criminalize illegal receipt of copyrighted works. SLA opposes expansion of the criminal penalty provisions in such a fashion that would limit the fair use provisions of the U.S. Copyright Act.

I encourage you to contact your representative and senators to let them know that you oppose these bills in their present form. For more information on their potential impacts on your profession, contact SLA staff.

To view the text of the WIPO Copyright Treaty, visit the WIPO Web site at http://www.wipo.org/eng/diplconf/distrib/94dc.htm.>To view the text of legislation, visit the Thomas Legislative Resource Site at http:// thomas.loc.gov.