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Copyright Issue Update - We Need Your Help

Subject: ACT!/COPY: Copyright Issue Update - We Need Your Help!
Date: Mon, 12 Aug 2002 15:39:29 -0400
From: "ALAWASH E-MAIL" <ALAWASH@alawash.org>
To: ALA Washington Office Newsline <ala-wo@ala1.ala.org>

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


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

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

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.  

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

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