Home  Fair Use Legislation
Copyright: Fair Use Legislation
Last Update:
19-Dec-2005 16:04
2005
2003
2002
2005: Fair Use Legislation in the 109th Congress
Digital Media Consumers Rights Act of 2005 (H.R. 1201) (pending)
 Congressional "Dear Colleague" Letter, Dec. 15, 2005 [pdf]
In March 2005, Congressmen Rick Boucher (D-VA), John Doolittle (R-CA) and Joe Barton (R-TX) introduced a fair use bill, H.R. 1201, the “Digital Media Consumers Rights Act of 2005.”
ALA is urging Representatives to co-sponsor the bill, which would, among other things:
- Amend Section 1201 of the Digital Millennium Copyright Act (DMCA) to allow bypassing a technological lock that controls access to and use of a copyrighted work - if the circumvention does not result in infringement of the work.
- Codify the U.S. Supreme Court's 1984 ruling that a copying technology (in that case, the videocassette recorder) is permissible under the Copyright Act so long as it can be used for non-infringing as well as infringing purposes.
- Broaden allowances for anti-circumvention scientific research (for example, to allow scientists to research the strength and reliability of technological locks, without subjecting themselves to civil and criminal penalties).
- Require proper labeling of "copy-protected" compact disks so that consumers know when they buy a CD what device it can be played on.
Has there been a hearing on H.R. 1201?
No, but the U.S. House of Representatives’ Energy and Commerce Committee, through its Subcommittee on Commerce, Trade and Consumer Protection, convened a hearing on November 16, the Energy and Commerce Committee held a hearing entitled, Fair Use: Its Effects on Consumers and Industry.
The lively hearing lasted more than two hours and elicited views from eight witnesses on fair use, copyright law, and technology. Prue Adler of the Association of Research Libraries spoke on behalf of the Library Copyright Alliance (ALA, ARL, AALL, MLA and SLA) to explain to the Subcommittee why fair use is so critical to libraries. (Prue’s testimony is attached.) Other witnesses included Jonathan Band, who is outside counsel to the Library Copyright Alliance and who was testifying on behalf of another client, NetCoalition (a coalition of companies including Bloomberg, Google and Yahoo!), and Professor Peter Jaszi of American University’s Washington College of Law, who has worked in partnership with the library associations on many projects over the years.
The list of witnesses is at http://energycommerce.house.gov/108/Hearings/11162005hearing1716/hearing.htm.
Subcommittee Chairman Clifford Stearns (R-FL) opened the hearing by stating that the hearing was intended as “a reasoned and thoughtful examination of the law of copyright and “fair use,” how technology is making traditional “fair use” analysis and distinctions more nuanced, and how consumers are faring in the middle of all this.” Mr. Stearns stated further:
"With today’s hearing, I also would like to lay the groundwork for further examination of H.R. 1201, my friend and colleague Mr. Boucher’s bill. H.R. 1201 would allow the circumvention of anti-piracy, encryption technology in instances when a user intends to make “fair use” of the underlying work. The Digital Millennium Copyright Act (DMCA), passed in 1998, created civil and criminal penalties for “circumventing” encryption and other technology designed to prevent tampering or “hacking” into copyrighted material. But it can also prevent fair use. I believe the effects of the DMCA to lock out consumers from the proper and fair use of material is a perverse result of the law."
The same Subcommittee held a lengthy hearing in May 2004 on H.R. 107, the predecessor bill to H.R. 1201 in the 108 th Congress, but the bill did not progress out of the Energy and Commerce Committee.
H.R. 2408, Public Domain Enhancement Act (pending)
Rep. Zoe Lofgren (D-CA) and Rep. John Doolittle (R-CA) introduced the bill in May to amend the Copyright Act to allow abandoned copyrighted works to enter the public domain after 50 years. The bill would provide a simple mechanism to ensure that abandoned copyrighted works pass into the public domain. Rep. Lofgren introduced a similar bill in the 108 th Congress, which ALA and the other library associations endorsed. Another, potentially more promising route for dealing with abandoned copyrighted works lies with the current inquiry into “orphan works” being conducted by the U.S. Copyright Office.
ALA Orphan Works page
2003
Public Access to Science Act
Representative Sabo (MN-D) introduced H.R. 2613, the "Public
Access to Science Act," a bill that would amend federal law to exclude
from copyright protection works that resulted from "scientific research
"substantially funded by the Federal Government." The bill is based
on the premise that government funded research should be made freely and readily
available to the public, scholars and scientists.
H.R. 2613 proposes one strategy to address the complex problem
of creating open access to works and information that is otherwise given away
to publishers with no expectations of financial remuneration. Publishers of
scientific, technical and medical journals have been criticized widely for their
monopolistic business practices. With the increase in mergers among publishing
companies annual subscription rates for academic journals have skyrocketed.
Many library budgets are unable to keep pace with the substantial increases
in online and print subscriptions.
The Sabo bill is generating considerable debate among researchers,
publishers and libraries. Some critics claim that removal of copyright protection
could hamper academic publishing, especially by nonprofit publishers, affect
research funding, and irrevocably change the world of academic research and
publishing. There is concern that the bill takes an extreme approach at a time
when all stakeholders are just beginning to address the problem.
Related Links
Public Library of Science
http://www.publiclibraryofscience.org
H.R. 2613 has been introduced at the same time that the privately funded electronic
Public Library of Science opened on the Internet. Begun by three distinguished
scientists, the Public Library of Science is an alternative route to accessing
scientific research. The library's goal is to create an extensive electronic
library that would be free to anyone. Users would not need permission to read
or copy the materials.
Information Access Alliance
http://www.informationaccess.org/
In response to the increasing number of publishing house mergers, six library
associations, ALA, Association of Research Libraries, American Association of
Law Libraries, the Medical Library Association, Association of College and Research
Libraries, and the Scholarly Publishing and Academic Resources Coalition, formed
the Information Access Alliance in 2003. The coalition believes that "a
new standard of antitrust review should be adopted by state and federal antitrust
enforcement agencies in examining merger transactions in the serial publishing
industry."
WO Web page: Open
Access to Research
On March 4, 2003, Representative Zoe Lofgren
(D-CA) reintroduced a bill to give lawful consumers the ability to make personal
uses of digital entertainment such as music, movies and books:
H.R. 1066, the Benefit Authors without Limiting Advancement or Net Consumer
Expectations, or BALANCE Act.
(In the 107th Congress, the bill
was H.R. 5522, the "Digital Choice and Freedom Act of 2002.")
Rep. Lofgren's bill is another signal to Congress that copyright law must be
recalibrated to restore consumer and public rights. The following statement
was provided by several library associations to Rep. Lofgren's office as the
bill was introduced.
The
introduction of the BALANCE Act of 2003 signals the increasinginterest by members
of Congress to reconsider how to best balance theinterests of users, creators,
and owners of copyrighted information inthe digital environment.
We appreciate Representative Lofgren'sinterest in these issues and the library
community welcomes theopportunity to work with her and other Members of Congress
on copyrightand intellectual property issues.
The
bill which would amend the Copyright Act, would allow lawful consumers to use
CDs, DVDs and other digital works on the devices of their choice and to sell
or lend their personal copies of digital works. Rep. Lofgren explained that
her bill "encourages content owners to respect consumer rights and expectations
by permitting circumvention tools if they fail to do so." The bill also provides that terms in nonnegotiated licenses (i.e. "shrink-wrap"
or "click-on" licenses) that restrict rights of users under the Copyright Act
will not be enforceable.
http://zoelofgren.house.gov/congress/lofgrenbalance2003.pdf
May 12, 2004:
ALA Legislative Counsel, Miriam Nisbet, testified at the House Energy and Commerce
Committee's Commerce, Trade and Consumer Protection Subcommittee hearing on
H.R. 107, the Digital Media Consumers' Rights Act. Speaking on behalf of ALA,
AALL, ARL, SLA, and MLA, Ms. Nisbet pointed out the ways that the current prohibitions
resulting from passage of the 1998 Digital Millennium Copyright Act (DMCA) stifle
a library's ability to make fair use of digital materials, to preserve and archive
digital content and to take advantage fully of the other library exceptions
provided by federal copyright law. {See below}
January 7, 2003:
Rep. Rick Boucher(D-VA) and Rep. John Doolittle (R-CA) re-introduced the "Digital
Media Consumers' Rights Act" (DMCRA). The bill, now numbered H.R. 107, proposes
three key changes to sections of the Digital Millennium Copyright Act (DMCA)
of 1998 and reaffirms fair use in the digital environment. Although the bill
primarily focuses on the concerns of consumers, it is a necessary first step
in recognizing the rights of copyright users. In addition to strong support
from libraries, the bill also has wide support from a number of organizations
and companies, including Intel, Phillips Electronics, Sun Microsystems, Gateway,
the Consumer Electronics Association, the Computer and Communications Industry
Association (CCIA), Consumers Union, the Home Recording Rights Coalition, Public
Knowledge, the National Writers Union, the American Federation for the Blind,
and the Electronic Frontier Foundation.
Background on the Digital Millennium Copyright
Act
The DMCA's Section 1201 prohibits the circumvention
of technological measures that control access to copyrighted works. Violators
of the anti-circumvention provision are subject to civil and criminal penalties.
In 2000, when the U.S. Copyright Office conducted a rulemaking proceeding in
order to implement the DMCA, ALA and our fellow library associations submitted
extensive comments and testimony that technological "locks" could have an enormous
impact on the ability of libraries to provide access to, lend, and archive material,
as well as adversely affect the ability of library users to make full legitimate
use of its resources. The Copyright Office did not accept the libraries' proposal
to allow an exemption from the anti-circumvention provision for those who circumvent
a technological lock in order to make a non-infringing use (i.e., a use permitted
by the copyright law for fair use, classroom, preservation or similar provisions)
of a lawfully acquired copyrighted work.
What does the DMCRA provide?
The DMCRA (or the Boucher-Doolittle bill)
would:
- Amend Section 1201 of the DMCA to allow circumvention of
a technological measure that controls access to and use of a copyrighted act,
if the circumvention does not result in infringement of the work
- Decriminalize anti-circumvention tools when the tools have
substantial non-infringing uses
- Broaden allowances for anti-circumvention scientific research
(for example, to allow scientists to research the strength and reliability
of technological locks, without subjecting themselves to civil and criminal
penalties).
In addition to the parts of the bill that
would allow circumvention of technological locks for fair use and other non-infringing
purposes, the bill would require proper labeling of"copy-protected" compact
disks so that consumers know when they buy a CD what device it can be played
on.
Although this bill is not expected to move
until next year, librarians should be asking their Representatives, particularly
those who are members of the House Energy and Commerce Committee, to sign up
as co-sponsors.
Related Documents:
- 27
March 2003 Requesting co-sponsorship of H.R. 107 (pdf file)
- 16
June 2003 "Fair Use Promotes Important First Amendment Values" letter (pdf file)
- May
12, 2004 Joint library associations' Congressional testimony on H.R. 107
(pdf file)
- June
2004 One-page brief on H.R. 107 (pdf file)
Related Links:
On March 26, 2003 Sen. Wyden (D-OR) introduced
S. 692,
http://thomas.loc.gov/cgi-bin/query
an act requiring the Federal Trade Commission to issue rules regarding the disclosure
of technological measures that restrict consumer flexibility to use and manipulate
digital information and entertainment content. The bill was referred to the
Committee on Commerce, Science and Transportation.
2002
In October 2002, Rep. Christopher Cox
(R-CA) introduced in the House a Joint Resolution, the "Consumer Technology
Bill of Rights," H.J.Res. 116. The purpose of the resolution is to recognize
the rights of consumers to use copyright-protected works that they have lawfully
acquired and from which they do not intend to profit. Sen. Ron Wyden (D-OR)
has introduced a companion bill in the Senate, S.J.Res. 51.
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