Washington Scene

2012 State of America's Libraries Report

A lot of discussion took place in 2011 on such topics as ebooks, digital libraries, library lending models, and orphaned works, but it all yielded little legislative action in a Washington riven by partisan politics. Internet-age versions of copyright and piracy issues shot to the fore as 2011 turned into 2012, however, and the acronyms SOPA (the Stop Online Piracy Act) and PIPA (the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, a.k.a. the PROTECT IP Act of 2011, hence PIPA) became part of the national vocabulary as the library and First Amendment communities verbally slugged it out with proponents of the legislation such as the Recording Industry Association of America.

The battle over SOPA and PIPA

SOPA was introduced in the House in October by Rep. Lamar S. Smith (R-Tex.) to expand the power of U.S. law enforcement to fight online trafficking in copyrighted intellectual property and counterfeit goods. The bill would allow the government to request court orders to bar advertising networks and payment facilities from doing business with infringing websites and search engines from linking to the sites, and court orders requiring Internet service providers to block access to the sites. The law would expand existing criminal laws to include unauthorized streaming of copyrighted content, imposing a maximum penalty of five years in prison.

Proponents of the legislation say it will protect the intellectual-property market and corresponding industry, jobs, and revenue and is needed to bolster enforcement of copyright laws, especially against foreign websites. Opponents feel that the legislation threatens free speech and innovation and empowers law enforcement to block access to entire Internet domains due to infringing content posted on a single blog or webpage. They have raised concerns that SOPA would bypass the “safe harbor” protections from liability presently afforded to Internet sites by the Digital Millennium Copyright Act.

The library community, including ALA, has expressed concerns that the legislation’s emphasis on stronger copyright enforcement would expose libraries to prosecution. Other opponents state that requiring search engines to delete a domain name could begin a worldwide arms race of unprecedented censorship of the Web and violates the First Amendment.

Screenshot: Wikipedia participated in a 24-hour blackout to protest proposed SOPA and PIPA legislation.Wikipedia participated in a 24-hour blackout to protest proposed SOPA and PIPA legislation.

On January 18, the English-language Wikipedia and an estimated 7,000 other websites coordinated a service blackout to raise awareness of the issues. Other protests against SOPA and PIPA included petition drives, boycotts of companies that support the legislation, and a rally held in New York City. The sites of several pro-SOPA organizations such as the Recording Industry Association of America, CBS.com, and others were slowed or shut down with denial-of-service attacks.

Opponents of the bill have proposed the Online Protection and Enforcement of Digital Trade Act (OPEN) as an alternative, but the issue remained unresolved as the new year unfolded.

A parallel bill in the Senate, the PROTECT IP Act of 2011, or PIPA, had been introduced in May 2011 by Sen. Patrick Leahy (D-Vt.) to crack down on rogue websites dedicated to the sale of infringing counterfeit goods. The library community is concerned about the bill’s potential impact on First Amendment rights. The bill was considered in committee, which recommended it be considered by the Senate, but the motion to proceed was withdrawn by unanimous consent in January after failure of a cloture motion.

Library Copyright Alliance handles a full agenda

The Library Copyright Alliance (LCA) acted on a number of issues in 2011, commenting on pending legislation and court cases, joining briefs, and releasing papers and guides on a wide range of copyright and fair use issues, including the Google Book Search settlement and the lending rights of libraries. LCA members include the ALA (mainly through its Office for Information Technology Policy, or OITP), the Association of Research Libraries, and the Association of College and Research Libraries (ACRL).

In response to the March 2011 rejection of the proposed Google Book Search settlement, the LCA issued a statement saying that copyright law continues to present significant barriers to libraries interested in mass digitization initiatives because of orphan-works issues. The group also released “A Guide for the Perplexed Part IV: The Rejection of the Google Books Settlement” (PDF), an analysis of the latest decision in the Google Book Search case and its potential effect on libraries. This guide is the latest in a series prepared by LCA legal counsel Jonathan Band to help inform the library community about this landmark legal dispute.

In the wake of the settlement rejection, several interested parties were discussing with renewed vigor the issues of orphan works, mass digitization, and even modernization of Section 108 of the U.S. Copyright Act, which permits libraries and archives to make certain uses of copyrighted materials in order to serve the public and ensure the availability of works over time. As part of this initiative, the LCA released a statement describing the key features that copyright reform proposals should include in order to constitute significant improvement over current law for libraries and their users. The statement, which represents the needs of library stakeholders in these debates, provides helpful guideposts for these discussions.

In April, ACRL, an ALA division, sent letters to the National Institutes of Health (NIH), the Department of Health and Human Services (HHS), and the White House Office of Science and Technology Policy (OSTP) in support of public access to federally funded research. The letters asked the NIH to shorten the current embargo and asked the HHS and the OSTP to expand public access policies to other federal agencies.

The ALA’s Office of Government Relations (OGR) and the OITP continue to monitor copyright-related court cases that have the potential to affect libraries, including Golan v. Holder (dealing with a challenge to the constitutionality of restoring the copyright of foreign works that were previously in the U.S. public domain) and Cambridge University et al. v. Patton et al. (which has to do with Georgia State University’s electronic reserves policy).

International copyright issues remain largely unresolved

Library copyright exceptions and limitations, a proposed treaty for an exception for people with print disabilities, and a proposed treaty on the protection of traditional cultural expressions remain among the key issues under consideration — and largely unresolved — at the World Intellectual Property Organization (WIPO). The LCA coordinates U.S. library advocacy at the WIPO Standing Committee on Copyright and Related Rights.

A treaty or legal instrument for copyright exceptions would mandate that all member countries of the WIPO endorse and potentially implement library exceptions such as preservation, reproduction and supply, library lending, and liability limits for libraries and archives. These exceptions already exist under U.S. copyright law but not in other countries.

At the WIPO, a treaty on an exception for people with print disabilities has been on the agenda for several years. The LCA supports a treaty that would allow accessible copies of works to be created for the print-disabled without authorization and would allow the cross-border sharing of accessible content. English-speaking nations could borrow accessible content from the United States to meet the needs of the print-disabled. The international publishing community opposes this proposal, but there were signs in 2011 that some type of instrument will be accepted.

Finally, the LCA continues to oppose any agreement that would give copyright protection to traditional cultural expressions (TCEs). The LCA recognizes the issues facing indigenous communities in the United States that want to restrict access to TCEs, particularly sacred objects or ceremonies, but supports collaboration with indigenous communities to identify shared interests to address both TCE protection and access to information. (These collaborations already take place in U.S. libraries and archives.) The LCA feels that a TCE treaty would threaten the public domain, freedom of inquiry, research, scholarship and critique, preservation, and the ability to create derivative works.

Libraries play a key role in digital literacy efforts

In the fall of 2011, Julius Genachowski, chairman of the Federal Communications Commission, announced a plan to create a digital literacy corps that would provide training in schools and libraries across the country. Genachowski also announced a series of digital literacy initiatives including a public-private partnership, Connect to Compete, that will provide eligible low-income families with less expensive computers and Internet connections, as well as skills training. Both projects are in the planning stages and are to be further developed in 2012.

Libraries of all types have always had programs that build information literacy skills for students and patrons. As technologies have changed and influenced how people search for, find, and use information, libraries have adapted their programs to ensure that their users have the requisite skills — both technical and cognitive — to be able to take advantage of the resources and opportunities afforded by the Internet and the digitization of information. As national attention on these issues increased, the ALA’s OITP began working closely with the FCC and staff of the National Telecommunications and Information Administration (NTIA) to ensure that libraries were front and center in the conversations.

In the National Broadband Plan, released in 2010, federal agencies focused on the issues that were identified as barriers to broadband adoption in the home. The NTIA, in partnership with nine other federal agencies, created a digital literacy portal (DigitalLiteracy.gov) to collect resources for librarians, educators, and other professionals who provide digital literacy training. The OITP staff reviewed the portal functionality and collected library resources for inclusion in the portal before its launch in May 2011, and materials from school, public, and academic libraries, as well as state library initiatives, continue to be added to the portal. Emphasis on job creation, workforce development, and economic growth make the portal a resource for librarians working with people looking for a job or in need of upgrading their job skills.

One outgrowth of the OITP’s work with the FCC and the NTIA was to establish a Digital Literacy Task Force comprised of ALA members from school, public, and academic libraries. The task force is charged with identifying best practices among libraries, where there might be gaps in practice, and where there are opportunities for libraries to excel in digital literacy work. The work of the task force continues into 2012 and highlights the multiple roles libraries play in supporting a digitally literate society.

Coalition preparing technology benchmarks for public libraries

A national coalition was formed in 2011 to design and pilot a series of public-access technology benchmarks for public libraries, a framework of goals and indicators that will help them evaluate and continually improve their public technology services for communities. Called the Edge Initiative, the coalition comprises library and government organizations, including the OITP and the Public Library Association, and has received $2.8 million in funding from the Bill and Melinda Gates Foundation.

The Edge benchmarks will be supported by training and a toolkit of customizable materials that will help library staff demonstrate the quality of their technology services to the communities they serve and convince decision-makers to reinvest in public technology access in libraries. The benchmarks and toolkit will be designed to be responsive to the needs of the library field.

With the Urban Libraries Council as the project lead and facilitator, the coalition also includes the State Libraries of California, Oklahoma, and Texas; Lyrasis; OCLC’s WebJunction; researchers at the University of Maryland and the University of Washington; the International City/County Management Association; TechSoup Global; and the Gates Foundation.

Benchmark development will include three phases. To begin, the coalition will draft prototype benchmarks and collect feedback from the library field and local government leaders to ensure the benchmarks are meaningful and useful. Next, the group will test an initial set of benchmarks in communities in California, Oklahoma, and Texas. The prototype benchmarks will then be refined with feedback from the pilot communities and the library field. It is anticipated the Edge benchmarks will be launched in the second half of 2012.

School libraries amendment dropped from education bill

Capitol Hill buildingCapitol Hill. Photo by Elliot P.

The Elementary and Secondary Education Act (ESEA), the successor to No Child Left Behind, continued to struggle in 2011, and school libraries were left out of the picture even as the bill made halting progress late in the year.

The Senate Health, Education, Labor, and Pensions (HELP) Committee in October 2011 reported out the ESEA on a 15–7 vote — without an ALA-backed amendment that would have ensured that every school was served by a state-certified media specialist and that library programs had access to the resources students need to become lifelong learners.

In July 2011, in a bipartisan effort, Sen. Jack Reed (D-R.I.) and Sen. Thad Cochran (R-Miss.) had introduced the Strengthening Kids’ Interest in Learning and Libraries (SKILLS) Act (S. 1328) that would have amended the ESEA to include school libraries and help improve student academic achievement by ensuring that more students have access to effective school library programs. The bill was cosponsored by Democratic Sens. John Kerry (Mass.), Patty Murray (Wash.), John Rockefeller (W.Va.), Tim Johnson (S.Dak.), and Sheldon Whitehouse (R.I.).

Sen. Whitehouse withdrew the SKILLS amendment before a committee vote because of lack of support from other members on the committee but said he planned to reintroduce it later.

“We are very disappointed that the Senate HELP Committee did not recognize the crucial part an effective school library program plays in every child’s education,” Emily Sheketoff, executive director of the ALA’s Washington office, said.

In the House, the Education and Workforce Committee in May 2011 reported out a series of smaller reauthorization bills, only one of which deals with school libraries. The bill, H.R. 1891, would repeal 43 different Department of Education programs, including Improving Literacy Through School Libraries. The full House had not taken up the bill by year’s end.

Libraries’ product safety requirements clarified

Resolution was finally reached in 2011 on issues raised by the Consumer Product Safety Improvement Act (CPSIA), passed in 2008. The bill sought to decrease the levels of lead and phthalates in products intended for children under age 12; the law is enforced by the Consumer Product Safety Commission (CPSC). Under the CPSC general counsel’s interpretation of the law, books were initially considered subject to the same testing standards as children’s toys. Given the high cost of testing, this was not a feasible option for libraries, and the ALA’s Office of Government Relations (OGR) and other concerned parties spent much of the last three years seeking to change the interpretation.

Then, in late 2011, Congress passed Public Law No. 112-28, which provides the safety commission with greater authority and discretion in enforcing the consumer product safety laws, and for other purposes. The law clarified libraries’ responsibilities concerning CPSIA requirements in two ways: first by requiring book manufacturers to ensure that their processes are safe and fall within the limits of the law; and second by excluding ordinary books and paper-based printed materials from third-party testing requirements.

Other library-related actions (or inactions) in the nation’s capital:

  • First Amendment threats.Three so-called anti-piracy or online copyright-infringing bills were introduced in the Senate and the House in 2011. All took aim at any website beyond U.S. borders that distributed counterfeit or copyright-infringing products, and two of the three went further in that they also incentivized Internet companies to cut off access to websites. The OGR considered that such tactics had a potential chilling effect on First Amendment rights and intellectual freedom and would have weakened cyber-security and threatened privacy. The OGR therefore worked to slow the progress of the legislation and to ensure that fundamental library principles are not eroded, an effort that continues into 2012.
  • Net neutrality.The OGR and ALA members worked to help defeat anti–net neutrality legislation in the Senate in 2011. The Federal Communications Commission had codified and put into place during the year an order to help ensure net neutrality — a principle that advocates no restrictions by Internet service providers or governments on consumers’ access to networks that participate in the Internet. Senate legislation would have stripped the FCC of the ability to enforce the order. Grassroots advocacy by ALA members coupled with targeted lobbying by the OGR helped defeat the bill in a close, partisan vote, which was seen by library advocates as a message to Congress that libraries and the public they serve care deeply about a nondiscriminatory Internet and depend on it to provide unfettered access to all types of information.
  • National Library Legislative Day.National Library Legislative Day, held May 9–10, drew 361 people from 47 states, plus an additional 5,000 individuals who participated in Virtual Library Legislative Day. A first day of briefings was followed by a reception hosted by ALA’sWashington Office honoring Rep. Raúl Grijalva (D-Ariz.) for his support of libraries. The next day, participants met with their federally elected officials, and OGR staff and advocates met with several congressional committees and outside groups, including the Senate Health, Education, Labor, and Pensions Committee; the National Telecommunications and Information Administration; the House Education and Workforce Committee; the Institute of Museum and Library Services; the American Federation of Teachers; and the National Education Association.

Library advocates who couldn’t make it to Capitol Hill for the event were still able to be a part of the effort by calling and/or emailing their elected officials on May 10 or any time the week of May 9–13. ALA’s Association of Library Trustees, Advocates, Friends, and Foundations; the Washington Office; Chapter Relations Office; and the Office for Library Advocacy led Virtual Library Legislative Day, an opportunity for all library advocates to make their voices heard on a national level. The 2011 effort saw four times as many messages sent as the prior year.

  • PATRIOT Act extension.Congress in May 2011 reauthorized three key sections of the USA PATRIOT Act, without any changes, until the next sunset deadline of June 1, 2015. The renewal included none of the reader-privacy and Fourth Amendment protections sought by freedom-to-read groups such as the ALA, the Association of Research Libraries, and the American Booksellers Foundation for Free Expression. The PATRIOT Sunsets Extension Act of 2011 includes what has become known as the library provision, or Section 215, which allows federal authorities conducting a counterterrorism investigation to seize someone’s library or business records unbeknownst to the individual and without a court order. Members of the Senate Intelligence Committee expressed reservations about the renewal. “When the American people find out how their government has secretly interpreted the PATRIOT Act, they will be stunned and they will be angry,” Sen. Ron Wyden (D-Ore.) said on the Senate floor.

And finally, may we have the envelopes, please . . .

Patrice McDermott, director of OpenTheGovernment.org, won the 2011 James Madison Award, presented to her by ALA President Roberta Stevens during the 13th annual National Freedom of Information Day Conference. . . . The 2011 L. Ray Patterson Copyright Award went to Peter Suber, professor of philosophy at Earlham College, senior researcher at the Scholarly Publishing and Academic Resources Coalition, and fellow at Harvard University Library’s Office for Scholarly Communication. Suber was recognized for his work in the open access movement to provide free public access to scientific information for the public good. The award, which is sponsored by the OITP and the Copyright Advisory Subcommittee, is named for a key legal figure who explained and justified the importance of the public domain and fair use.