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Nov/Dec ENews, Part Two, Federal Relations
>Date: Mon, 13 Dec 1999 12:46:14 -0500 (EST)
>Reply-To: arl-directors@arl.org
>Sender: owner-arl-directors@arl.org
>From: Duane E Webster <duane@arl.org>
>To: Multiple recipients of list <arl-directors@arl.org>
>Subject: Nov/Dec ENews, Part Two, Federal Relations
>X-To: ARL-DIRECTORS List <arl-directors@arl.org>
>
>
>TO: Directors of ARL Libraries
>
>FROM: Duane E. Webster, ARL Executive Director
>
>RE: November-December E-news for ARL Directors:
> Part Two, Federal Relations
>
>
>Note: Members are encouraged to route these monthly briefings to
>interested staff within the library or the parent institution.
>
>The monthly Federal Relations E-News is written by Prue Adler
>(prue@arl.org) and edited by Bradley Houseton (bradley@arl.org). It will
>be posted in the Federal Relations Notebook Updates on the ARL Web site
>at: http://www.arl.org/info/frn/info.html.
>
>
>CONTENTS
>
>1. Copyright and Intellectual Property FRN #1
> a. Database Legislation - Update
> b. DMCA Follow-up : Section 108
> c. Library Community Responds to UCITA
> d. Appeals Court reverses Tasini v. New York Times
> e. Change to DMCA and Notice of Rulemaking
> f. Digital Theft Deterrence and
> Copyright Damages Improvement Act of 1999
> g. Cybersquatting Legislation Signed
> h. Change to Copyright Law Relating to Work for Hire
> i. NRC Releases Database Report
>
>2. Government Information and Related Issues - FRN#2
> a. Proposed Closing of NTIS
> b. Update on Revisions to Circular A-110
> c. Legislation Calling for Declassification Introduced
>
>3. Selected Appropriations FRN #4
> a. National Endowment for the Humanities,
> National Endowment for the Arts
> b. National Science Foundation
> c. Institute for Museum and Library Services
>
>4. Legislation Introduced for a
> National Recording Registry - FRN#4
>
>
>_______________________________________________
>
>
>1. Copyright and Intellectual Property FRN #1
>
>a. Database Legislation - Update
> Prior to adjourning, the House of Representatives did not consider
>database legislation, H.R. 354. Despite a concerted push by proponents of
>H.R. 354, the House leadership did not bring the controversial legislation
>to the floor. Opposition to the legislation was clearly evident from many
>corners: education, library, science and research communities including
>ARL, AAU, the National Academies, and AAAS, commercial Internet companies
>such as Yahoo!, financial services companies such as Bloomberg, Inc. and
>Charles Schwab, telecommunications companies such as AT&T and MCIWorldCom,
>the Chamber of Commerce, and many other organizations and institutions.
>It is anticipated that when Congress reconvenes in late January, there
>will be strong pressure yet again to bring the legislation to the floor
>for consideration. The Senate has yet to act on the legislation.
>
>b. DMCA Follow-up : Section 108
> As a result of changes made by the Digital Millennium Copyright
>Act to Section 108(a)(3) of the Copyright Act (Title 17 U.S.C.), some
>libraries have raised a question about whether there is a need to research
>the copyright notice of a periodical, journal or the larger work from
>which an article is reproduced. The attorney to the Shared Legal
>Capability, Arnold P. Lutzker, Lutzker & Lutzker LLP, has provided the
>following analysis of this issue. Key conclusions are:
>
>o The changes to Section 108(a)(3) of the Copyright Act were made to
>update the section to ensure that libraries would be responsible for
>including some notification that an item may be protected by copyright,
>since the law, as of the Berne Convention Implementation Act of 1988, no
>longer requires the copyright notice to appear.
>
>o If the copyright notice does not appear on an article in a journal issue
>or an article in a volume of separately authored essays, stamping the
>article with a notice that the work may be under copyright is sufficient
>("NOTICE: This material may be protected by Copyright Law (Title 17
>U.S.C.")).
>
>o If copying a chapter from a book in which the chapters do not carry
>separate attribution, one should copy the copyright notice from the front
>of the book. If the notice cannot be found, stamping is sufficient.
>
> Lutzker's complete analysis of the implications of the changes to
>Section108(a)(3) and his conclusions can be found on the ARL Website at
>http://www.arl.org/info/frn/copy/notice.html.
>
>
>c. Library Community Responds to the UCITA proposal
> With the passage of UCITA (formerly UCC 2B) in late July
>by the National Conference of Commissioners on Uniform State Laws
>(NCCUSL), the action has now moved to the states. UCITA proponents are
>already actively lobbying for its passage in many states. The timeline for
>UCITA consideration is between now and March for most legislatures. Many
>states have commenced a preliminary review of the proposal with formal
>consideration in 2000. Although the proposal did improve somewhat prior
>to NCCUSL endorsement, it is still fundamentally flawed.
>
> Based on discussions with the ARL community and beyond, ARL, with
>others in the library community, is developing the capability to assist
>members in their state-based responses to UCITA. This will include
>educational materials, key contacts, and other materials deemed necessary.
>Initial analyses of the UCITA proposal from different perspectives can be
>found at: <http://www.arl.org/info/frn/copy/ucitapg.html>. ARL, with
>other library associations, is collaborating with others in the public and
>private sectors in responding to the movement of UCITA in selected state
>legislatures. Please contact Prue Adler (prue@arl.org) with any questions
>or suggestions regarding ARL's UCITA activities.
>
>d. Appeals Court Reverses Tasini v. New York Times decision
> On September 24, in a unanimous ruling, the Second Circuit Court
>of Appeals, overturned a lower court decision, Tasini v. New York Times.
>In reversing the lower court ruling, the Appeals Court ruled that the
>reuse of a freelance author's work on CD-ROMs and in electronic databases
>without the author's permission constitutes copyright infringement. The
>New York Times and other publishers requested an en banc review of the
>decision. Although many publications such as the New York Times now
>require permission for electronic republication of works by freelance
>authors, this was not standard industry practice until recently. Thus the
>impact of the ruling will be on older works currently residing in
>databases such as Lexis-Nexis and the like.
>
> In response, the National Writers Union has established a
>Publications Rights Clearinghouse, a transaction-based licensing system
>for freelance writers. More information on the ruling and the
>Clearinghouse is available at: http://www.nwu.org.
>
>e. Change to DMCA and Notice of Rulemaking
> A seemingly small but important change to the Digital Millennium
>Copyright Act (DMCA) was included in the Intellectual Property and
>Communications Omnibus Reform Act of 1999 (S. 1948). The DMCA was amended
>by deleting a requirement that a Copyright Office rulemaking regarding
>section 1201 (a) (1) be "on the record." The change in section 1201
>relates to the nature of the rulemaking -- from a formal proceeding to one
>where all interested parties may participate through submission of written
>statements, oral presentations at public hearings or other venues
>
>On November 24, 1999, the Copyright Office published a Federal Register
>Notice of Inquiry regarding this upcoming rulemaking. This proceeding
>will determine whether anti-circumvention prohibitions will adversely
>affect a users ability to make "non-infringing" uses of copyrighted works,
>e.g. fair use of copyrighted works. ARL with others in the library
>community is funding and participating in a collaborative effort to
>position the community to effectively participate in this rulemaking.
>ALA's Office of Information Technology Policy is leading this effort. For
>more information, please contact Prue Adler (prue@arl.org)
>
>f. Digital Theft Deterrence and
>Copyright Damages Improvement Act of 1999
> Congress approved a significant hike in the minimum statutory
>damages for various types of copyright infringement in the Digital Theft
>Deterrence and Copyright Damages Improvement Act of 1999. H.R. 3456
>increases the minimum statutory damages for infringements from $500 to
>$750 and increases the maximum from $20,000 to $30,000. The maximum for
>willful infringement is increased from $100,000 to $150,000.
>
>g. Cybersquatting Legislation Signed
> By passing the Anticybersquatting Consumer Protection Act, Congress
>hopes to solve the problem of third parties registering domain names that
>would likely belong to other organizations or individuals, and then demand
>from these organizations, significant monetary resources for use of that
>domain name. Although the legislation was opposed by the Administration
>and many civil liberties organizations, the bill was signed into law by
>President Clinton. The bill was included in the Intellectual Property and
>Communications Omnibus reform Act of 1999. This bill was later merged
>into the omnibus appropriations bill. An analysis of the Anti-
>cybersquatting Consumer Protection Act is available via:
><http://www.arl.org/info/frn/copy/mofo.html>.
>
>h. Change to Copyright Law Relating to Work for Hire
> The definition of work for hire was expanded to include "sound
>recordings" in the listing of specially ordered or commissioned work made
>for hire if the parties involved expressly agree in a written statement.
>This change to title 17, U.S. Code was included in the Satellite Home
>Viewer Improvement Act and eventually signed into law in the Intellectual
>Property and Communications Omnibus Reform Act of 1999 (merged with the
>omnibus appropriations bill).
>
>i. NRC Releases Database Report
> The National Research Council released, "A Question of Balance:
>Private Rights and the Public Interest in Scientific and Technical
>Databases." The report, based in large part on input from representatives
>of key interest groups during a January 1999 workshop, examines the
>balancing of interests between the rights of database owners who are
>concerned with misappropriation of their products and the public use of
>data by researchers, librarians, scientists, and educators. The report
>concludes that" database owners enjoy significant legal, technical, and
>market-based protections, [and] the need for statutory protection has not
>been sufficiently substantiated. Nevertheless, although the committee
>opposes the creation of any strong new protective measures, it recognizes
>that some additional limits against wholesale misappropriation of
>databases may be necessary. In particular, a new, properly scoped and
>focused U.S. law might be a reasonable alternative to the European Union's
>database directive." Ken Frazier, ARL President and Director, University
>of Wisconsin Libraries, and Prue Adler, ARL Assistant Executive Director,
>were panelists at the NRC workshop. The report is available via:
><http://www.nap.edu>.
>
>
>
>2. Government Information and Related Issues - FRN#2
>
>a. Proposed Closing of NTIS
> In mid-August, with little consultation, the Department of
>Commerce announced the closing of NTIS and the transfer selected functions
>to the Library of Congress. This announcement promises that the
>Department of Commerce will work to ensure that technical and business
>reports that have been available through NTIS in the past will be provided
>by government agencies to the public for free via the Internet. In
>addition, the Department will encourage other federal agencies to maintain
>these reports on the Internet for a "reasonable" amount of time.
>
> Responding to this announcement, the Subcommittee on Technology,
>House Committee on Science conducted a hearing on September 14 to explore
>the Department of Commerce proposal. The Subcommittee heard from a
>variety of interests including Caroline Long, Associate University
>Librarian for Collection Services, The Gelman Library, George Washington
>University on behalf of ARL, ALA, AALL, SLA, and MLA. In her testimony
>Ms. Long focused on three key points:
>
> o NTIS should not be closed nor its services transferred until there
>is a thorough assessment of the full range of NTIS services, of
>alternatives for providing each service, and of the current requirement
>that the NTIS program be self-supporting.
>
> o NTIS provides unique centralized services that are critically
>important to
>the ability of the public to locate and have access to the government's
>STI resources, including the tangible collection and current agency
>web-based publications.
>
> o Technology has not yet solved two key challenges in moving towards
>greater dissemination of STI reports through the Internet: those
>challenges are centralized bibliographic access and permanent public
>access.
>
> These concerns were supported by many others on the panel including
>Kenneth Allen, chair of the NTIS advisory panel and Bonnie Carroll,
>President, Information International. Explaining the posture of the
>Department of Commerce was Assistant Secretary Mallett who noted that
>"for a long time, NTIS and the Department have struggled with how to
>ensure the public access to government information, while keeping NTIS
>self-sufficient." Public Printer Michael DiMario noted that many of the
>Government Printing Office capabilities matched those of NTIS, and GPO
>could be, with appropriate funding, in a position of taking on some of
>those services.
>
> More recently, the Senate Subcommittee on Science, Technology and
>Space of the Senate Committee on Commerce conducted a hearing on the
>proposed closing of NTIS. Testifying before the Senate Subcommittee were
>two Virginia representatives, Reps. Moran and Davis who spoke about the
>important role of NTIS in making scientific and technical information
>available as well as raising concerns about the status of NTIS employees.
>Joan Challinor, a National Commission of Library and Information Science
>(NCLIS) commissioner noted the need for additional study and suggested
>that NCLIS could perform that role. The Public Printer, Michael DiMario
>reiterated the Government Printing Office's strong interest in assuming
>NTIS functions.
>
> Draft legislation written by the Department of Commerce is
>circulating for comment and review. It was not introduced in either the
>House or Senate prior to adjournment.
>
>b. Update on revisions to Circular A-110
> The Office of Management and Budget (OMB) released the final rule
>of Circular A-110, the "Uniform Administrative Requirements for Grants and
>Agreements with Institutions of Higher Education, Hospitals, and Other
>Non-Profit Organizations." This revision based on well over 12,000 public
>comments on the draft rule, responds to a legislative requirement that all
>recipients of federal grants must provide their research data to anyone
>who requests it under the Freedom of Information Act (FOIA).
>
> In the final rule, OMB notes the key role of science. "OMB
>recognizes the importance of ensuring that the revised Circular does not
>interfere with the traditional scientific process." Science and
>technology are the principal agents of change and progress, with over half
>of the Nation's labor productivity growth in the last 50 years
>attributable to technological innovation and the science that supports
>it." Thus an important finding by OMB is that, "we have not construed the
>statute as requiring scientists to make research data publicly available
>while the research is still ongoing."
>
> The rule, effective as of November 8, 1999, applies to grants, not
>contracts, and those that are made after November 8 and or are renewed on
>that date. The text of the OMB Circular can be found at:
>http://www.whitehouse.gov/omb/circulars/a110/a110.html and was published
>in the Federal Register on October 8, pages 54926-30).
>
>c. Legislation Calling for Declassification Introduced - FRN#2
> On October 27, Sen. Moynihan (D-NY) introduced S. 1801, a bill to
>provide for the identification, collection, and review for
>declassification of records and materials that are of extraordinary public
>interest to the people of the United States. A companion bill, H.R. 3152,
>was introduced by Rep. Goss (R-FL).
>
>
>
>3. Selected Appropriations Update - FRN#4
>
> Many key programs were included in the omnibus appropriations bill
>which was signed into law by President Clinton on November 29, 1999. The
>legislation calls for a 0.38% cut of most federal programs. Agencies do
>have some flexibility in determining how the cut will be administered; no
>program can be cut more than 15%. The Director of OMB has suggested that
>the 0.38% reduction be made in programs that received funding above the
>President's FY2000 budget request.
>
>a. National Endowment for the Humanities (NEH),
> National Endowment for the Arts (NEA)
> The FY 2000 appropriation for the NEH is $115.7 million, an
>increase of $5 million. This increase will likely be reduced by the
>0.38% or approximately $440,000. The NEA is level funded for FY2000 at
>$98.9 million.
>
> The NEH recently announced that it will award $9.7 million in
>grants and fellowships to 172 scholars and 14 colleges and universities.
>The list of grantees is available via the Chronicle of Higher Education
>at: <http://chronicle.com/daily/99/12/99120606n.htm>
>
>b. National Science Foundation
> President Clinton signed the FY 2000 VA, HUD, Independent Agencies
>Appropriations bill on October 20. The legislation includes $3.912
>billion for the National Science Foundation. The Research and Related
>Activities account received $2.664 billion with $90 million for
>information technology research and includes funds for a digital library
>initiative for science, mathematics, engineering, and technology.
>
>c. Institute for Museum and Library Services
> Institute for Museum and Library Programs FY2000 appropriations
>will be $166.8 million prior to the 0.38% reduction. The FY2000
>appropriations for IMLS museum programs is $24.4 million prior to the
>reduction.
>
>
>
>4. Legislation Introduced for a National Recording Registry
>
> Sen. Breaux (D-LA) introduced S. 1927 on November 16, 1999. This
>legislation would establish a National Recording Registry in the Library
>of Congress to maintain and preserve recordings that are culturally,
>historically, or aesthetically significant. Rep. Hoyer (D-MD) introduced
>H.R. 3379, a House companion bill, also on November 16, 1999.
>
>12/10/99
>
>
>
>
>Duane Webster, Executive Director
>Association of Research Libraries
>v (202) 296-2296 f (202) 872-0884
>duane@arl.org
>