Date: Fri, 5 Jun 1998 14:11:25 EDT
From: Allan Metcalf
Subject: Digital copyright concerns: fair use

This comes from our Washington DC affiliate, the National Humanities Alliance.
You're invited to act on it as your conscience dictates. - Allan Metcalf


5 June 1998


TO: NHA Executive Directors

FR: John Hammer

RE: Act Now to Preserve Fair Use in the NII

The long battle to ensure that fair use and related educational and
library provisions remain robust and effective in the print and digital
environments has reached a critical stage -- and the scholarly community
and its allied are in danger of defeat on these core issues. The
situation in a nutshell:


o The Digital Millennium Copyright Act (S 2037) passed the Senate
last month with a provision which, if it becomes law, will undermine
scholars, librarians and others ability to exercise fair use and related
provisions, while at the same time, creates a new access right for owners
of copyrighted materials (section 1201). There are no meaningful
exceptions for education and library community to this new access right;

o A much more balanced and favorable bill from the humanities
community point of view, was S 1146 sponsored by Senator John Ashcroft
(R-MO), which was abandoned last month when Mr. Ashcroft negotiated some
goals and then became a co-sponsor of S 2037.


o The WIPO Copyright Treaty Implementation Act (HR 2281), the
counterpart bill in the House of Representatives which contains the same
Section 1201 language as the Senate version, has passed the House
Judiciary Committee and is now before the House Commerce Committee.

o HR 3048, the Boucher-Campbell bill, which has 40 co-sponsors but
has not produced a collaborative negotiation with the proponents of HR
2281. HR 3048 is intended to protect all Americans (including copyright
owners, but not exclusively owners), while being fair and honoring
innovation and the free market. NOTE: Information on HR 3048 was
distributed to NHA members earlier this year. Anyone wishing to have a
comparison of HR 3048 and HR 2281 can receive one by Fax by telephoning
name and address to NHA at 202/296-4994 or e-mailing to jhammer[AT SYMBOL GOES HERE]

o The Commerce Committee claimed jurisdiction over HR 2281 and
Commerce Subcommittee on Telecommunication, Trade and Consumer Protection
[W.J. "billy" Tauzin (R-LA), Chairman; and Edward J. Markey (D-MA),
Ranking Minority Member] is holding a hearing today. It is critically
important that the members of the full Commerce Committee hear from
humanities-library-other cultural communities explaining why Section 1201
must be changed to ensure that the balance is maintained between owners
and users in the networked environment. If the bill as it is presently
formulated becomes law, it will be damaging to scholarly inquiry and, in
fact, many forms of research and intellectual activity.

Every NHA member organization is urged to write to the chairman and
ranking minority member of the full Commerce Committee and the chair and
ranking minority member of the telecommunications subcommittee mentioned
above, to express concern about the impact of, in effect, leaving fair use
out of the digital environment and urging appropriate changes in HR 2281.
The members of the Commerce Committee are listed at the end of this memo.
Sending a copy of a letter to the chairman to other GOP members and a copy
of a letter to the ranking minority member to all Democrats will be very

To assist NHA members in this effort, the following is included

o Background and talking points
o a sample letter plus a suggested "fix"
o a list of the members of the House Committee on Commerce


o The Constitutional provision upon which all copyright law is based,
calls for a balance of the owners and the public interest (i.e., the
Constitution justifies offering a monopoly for a brief time to a creator
by citing the need to promote progress -- This is the basis for the fair
use tradition.)

"The Congress shall have Power...To promote the Progress of
Science and the useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries." (Article I, Section 8)

o A bill recently passed by the united States Senate and pending before
the U.S. House of Representatives contains a provision that would effect
the most dramatic change in copyright law in over one hundred years.
Buried in the Digital Millennium Copyright Act, a measure designed to
implement new international copyright treaties which bring the rest of the
world up with current U.S. law, reads:

Section 1201(a). No person shall circumvent a
technological protection measure that effectively
controls access to a work protected under this title.

While sounding innocuous, what the provision does is create a brand new
and unlimited right to control access to copyrighted works. If enacted
into law, this new right could bypass the carefully crafted balance
between exclusive rights of ownership and public access to works for
educational, scholarly, and scientific purposes, which has been part of
copyright law for the entire 20th Century. In short, it could eliminate
fair use from copyright law.

o Historically, copyright law has granted creators of works (including
books, articles, photographs, movies, and music), five exclusive rights.
These rights permit the copyright owner to control reproduction,
preparation of derivative works, public performance, public distribution,
and public display. However, while copyright law grants "exclusive"
rights, it sets out numerous limitations or exceptions, the most notable
of which is FAIR USE. These limitations permit, among other things,
schools and libraries to use materials in classrooms, critics to
quote from works as part of commentary, cable systems and satellites to
relay television programs, and parodists to draw upon existing texts to
express their original thoughts.

The exceptions apply, even in a world of digital works, where
technological locks can restrict access, because as long as one has a
lawfully acquired copy, fair use and many of the other statutory
limitations are not technologically defined. Until now.

o If the right of access is adopted and backed by stiff penalties (S
2037 and HR 2281 provide for civil remedies of up to $2,500 for each
access violation and criminal penalties of up to $500,000 - $1,000,000 for
offenses, plus 10 years in prison), then publishers will be able to
publicly release works subject to "technological protection measures" and
prevent any unauthorized access. Even reading paragraphs of an article in
a library could be banned.

o No exceptions whatsoever are spelled out in the amendments. This
means there would be no fair use of any work controlled by technological
measures, because if one cannot access a work without breaking through a
technological protection measure and thereby violating the law, then one
cannot quote for teaching, commentary, or scholarship.

o In what Marybeth Peters, the Register of Copyrights, has noted is a
meaningless act, the Senate bill promises that all limitations and
defenses to claims of copyright infringement, including fair use, remain
unaffected by the new law. Section 1201(d). That is only "technically
correct." Since copyright infringement consists of violating one of the
older exclusive rights of owners, the new "right of access" is legally
unrelated to "copyright infringement." Does fair use apply to the right
of access? There is only one answer the way the bill now reads. No!

o What can be done to preserve the cherished right of anyone to quote
and use published works without fear of criminal sanctions? Alert the
members of the House of Representatives to the threat which Section
1201(a) poses to the entire copyright law system. Make them understand
that access to lawfully acquired works, even works cloaked in
technological protection measures, is at the heart of fair use. If we
enter an era when quoting from published works is a crime unless you have
permission of the copyright owner, America and the research and education
enterprise will never be the same.


o Legislation to update the nation's copyright laws to reflect the
increasingly widespread use of digital networks is now moving through both
chambers of Congress;

o The versions of these bills approved by the House Judiciary Committee
and passed by the Senate provide strong new protection for copyrighted

o These bills also include a "savings clause" intended by the bills'
authors and proponents to affirm that the Fair Use Doctrine (the part of
the Copyright Act relied upon by scholars, researchers, educators,
students, library users and many others to quote from copyrighted works
without advance permission of the author) applied both to conventional
print material and to electronically transmitted information;

o However, according to the Register of Copyrights' testimony before
Congress late last year, this "savings clause" will not apply to the new
protection provisions of the pending legislation as written because of the
technical way in which it is worded;

o The problem exists because fair use is a defense under current law to a
claim of copyright infringement. The pending legislation, however, would
make it a crime to "circumvent" any electronic protection codes in which a
copyright owner may "wrap" its material for any purpose -- even if that
purpose is not now an infringement of copyright (such as making fair use
of the material, preserving it, or incorporating it into a distance
learning lesson in the way the Copyright Act now expressly permits.);

o The solution to this problem is to make clear in the new laws that the
fair use defense (and those other parts of the current Copyright Act
designed to permit the use of information under limited circumstances
without the owner's prior authorization) are applicable BOTH in legal
actions brought for copyright infringement AND to claims for unlawful
"circumvention" brought in the future under the proposed legislation.

o Unless this adjustment can be made in the pending legislation, the
practical ability of scholars, educators, students and others to make FAIR
USE of electronic information could be precluded or dramatically reduced
by the information owners' unilateral application of an electronic
protection system.

(To be Faxed or overnight because of short time frame)

The Honorable Tom Bliley
Committee on Commerce
U.S. House of Representatives
Washington, DC 20515-6115

Dear Mr. Chairman [Dear Representative XXXX]

I write on behalf of [association/society] to express strong concern about
HR 2281, the "WIPO Copyright Treaties Implementation Act," and to register
our support for the related provisions in HR 3048, the "Digital Era
Copyright Enhancement Act." Unfortunately, provisions relating to
circumvention of copyright protection systems in HR 2281 will eliminate
the ability of our members as well as our organization -- scholarly
researchers, library users, students -- to exercise privileges such as
fair use and related library and education provisions. These education
and library provisions are at the core of the academic enterprise -- these
are the essential means by which teachers teach, students learn, and
researchers advance knowledge. We ask for your support in ensuring that
the fair use doctrine and related provisions remain robust in the digital

Although HR 2281 contains language that appears to ensure that fair use
and related provisions will be applicable to both print and digital
environments, it is, in fact unlikely. This serious problem was
identified by the Register of Copyright in testimony before the Congress
last year. As reported by the House Judiciary Committee, Section
1201(a)(1) would prohibit circumvention of a technological measure for any
purpose -- including lawful purposes such as fair use and related
education and library provisions. This constitutes an unprecedented and
unlimited right to control access to a copyrighted work. And, although
the authors of the legislation have stated that it was their intention to
preserve fair use and related education provisions via a savings clause
(1201(d)), as drafted, it falls short of maintaining the critical balance
between owners and users' rights regarding use of information resources.

It is not difficult to resolve this critical concern. The solution is to
make clear that fair use and related provisions are applicable under the
proposed legislation I have included with this letter language that would
address our concerns and maintain the appropriate level of balance under
current law.

In closing, I believe that there are a number of other provisions in HR
2281 including, privacy and over-regulation of emerging technologies that
do not appear to be in the best interest of our democracy or international
trade interests. But, fair use is a key to creativity and innovation --
Not just for scholarly research but for the much broader enterprise that
has been this nation's strength. The introduction of a right of control
of access seems precisely the way to weaken that enterprise.

Sincerely yours,



Amended language for Section 1201 "(a) VIOLATIONS REGARDING CIRCUMVENTION
OF TECHNOLOGICAL PROTECTION MEASURES -- (1) No person shall circumvent a
technological protection measure that effectively controls access to a
work protected under this title." INSERT "Nothing in this section shall
apply to subsequent actions of a person once such person has obtained
authorized access to a copy of a work protected under title 17 even if
such actions involve circumvention of other types of technological
protection measures."

Delete subsection 1201(d)(1) and substitute the following: "(d) OTHER
RIGHTS, ETC., NOT AFFECTED -- (1) All rights, limitations and defenses
available under this title, including fair use, shall be applicable to
actions arising under this Chapter.


The Honorable [Dagwood Smith]
U.S House of Representatives
Washington, DC 20515

SWITCHBOARD: 202/225-3121 -- For FAX numbers, call the member's office
and request the number or call NHA at 202/296-4994

WHO TO CONTACT - Members of the Commerce Committee listed below but also,
any other member of the House as this legislation may reach the House
floor any time after June 17.


Note: An asterisk identified members of the Commerce Committee who are
also among the 40 co-sponsors of H.R.3048, the Boucher-Campbell bill --
(They should be thanked for that co-sponsorship).


Tom Bliley, VA = Chairman (full committee)
W.J. "Billy" Tauzin, LA = Chair, Telecommunications, Trade and
Consumer Protection Subcommittee
Michael G. Oxley, OH
Michael Bilirakis, FL
Dan Schaefer, CO
Joe Barton, TX
J. Dennis Hastert, IL
Fred Upton, MI
Cliff Stearns, FL
Bill Paxon, NY
Paul E. Gillmor, OH
* Scott Klug, WI
James C. Greenwood, PA
Michael D. Crapo, ID
Christopher Cox, CA
Nathan Deal, GA
Steve Largent, OK
Richard Burr, NC
* Brian P. Bilbray, CA
Ed Whitfield, KY
Greg Ganske, IA
* Charlie Norwood, GA
Rick White, WA
Tom Coburn, OK
Rick Lazio, NY
Barbara Cubin, WY
James Rogan, CA
John Shimkus, IL


John D. Dingell, MI = Ranking Minority Member
Henry A. Waxman, CA
Edward J. Markey = Ranking Minority Member,
telecommunications subcommittee
* Ralph M. Hall, TX
* Rick Boucher, VA
Thomas J. Manton, NY
* Edolphus Towns, NY
* Frank J. Pallone, Jr, NJ
* Sherrod Brown, OH
Bart Gordon, TN
* Elizabeth Furse, OR
Peter Deutsch, FL
Bobby Rush, IL
Anna G. Eshoo, CA
Ron Klink, PA
Bart Stupak, MI
Eliot L. Engel, NY
Thomas C. Sawyer, OH
Albert R. Wynn, MD
Gene Green, TX
Karen McCarthy, MO
Ted Strickland, OH
Diana DeGette, CO