Good morning. I am Jeanne Hurley Simon, Chairperson of the U.S. National Commission on Libraries and Information Science (NCLIS). Mr. Chairman, I am pleased to be here this morning on behalf of the National Commission. NCLIS welcomes the invitation to testify before the Subcommittee on Courts and Intellectual Property of the House Committee on the Judiciary on H.R. 2441 the "NII Copyright Protection Act of 1995."
NCLIS is a permanent independent federal agency, established by P.L. 91-345 to advise the President and the Congress on policies related to libraries and information services adequate to meet the information needs of the people of the United States. Since it was established 25 years ago, the Commission has provided advice and recommendations on the implementation of wide range of national policies including copyright-related issues. My testimony this morning reflects the views and concerns of the members of NCLIS, as well as my own personal observations, both as an attorney and a life-long supporter of strong libraries and information services. Also, I might add, my background includes authoring a non-fiction book, although I am married to more prolific published author (Paul is now working on his fifteenth book using his favorite Royal manual typewriter). So, from that perspective, I support both libraries and publishing.
Because the Commission is composed of the Librarian of Congress and fourteen citizens (including five library or information professionals) appointed by the President, by and with the consent of the Senate, NCLIS is responsible for developing advice, recommendations, and plans that reflect the needs and interests of the American people for library and information services. The Commission was not established to represent the perspectives of libraries or librarians; nor does the Commission officially represent the interests of publishers or media owners. Our interests reflect the views of a citizens' advisory board consisting of individuals from public and academic libraries, commercial information service providers, local elected officials, business, the media, publishing, and university administration.
A partial list of current Commissioners includes: Frank J. Lucchino, the Controller of Alleghney County, Pennsylvania; Mary S. Furlong, President and Founder of SeniorNet; Walter H. Anderson, Editor of Parade magazine; Robert S. Willard, Vice President of Lawyers Cooperative Publishing; Joel Valdez, Financial Vice President of the University of Arizona; Carol DiPrete, Librarian and Dean of Academic Services at Roger Williams University in Rhode Island; Martha B. Gould, the retired Director of the Washoe County Public Library in Reno, Nevada; LeVar Burton, who is widely recognized for his contributions as a television and motion picture actor, producer, and director; and Joan R. Challinor who serves on the board of directors of Knight Ridder, Inc. These NCLIS members, drawn from diverse backgrounds and experiences, reflect a variety of competencies and interests in society's diverse needs for library and information services.
The Commission is authorized to advise federal, state, local and private agencies. Our law requires that our advice and recommendations address the needs, interests, and requirements of library and information service users. The NCLIS statute requires that the Commission give special attention to the informational needs of rural areas, of economically, socially, or culturally deprived persons, and of elderly persons in order to assure that all people, regardless of their circumstances, have the opportunity to use libraries and information services effectively. The Commission fulfills a key role in determining the need for policies to assure that all the people of the U.S. have the opportunity to participate in the information age.
NCLIS works to recommend and provide policy advice to ensure the informational needs of the Nation, of average American citizens - - children, students, parents, teachers, researchers, and workers, among others - - are adequately met, and that America's educational resources and information services are available for effective utilization to all Americans. Thus, this prepared statement and the written testimony I am submitting for the record reflect the views and perspectives of NCLIS members about the public's interest in accessing and using library and information resources in all formats, with special attention to those works and information services that are associated with the development of the National Information Infrastructure (NII).
Over the last several years the National Commission has performed research on the roles of public libraries in the Internet. These studies and surveys are intended to clarify the role of libraries and information services in the transition towards digital technologies that are the basis of the emerging NII. These investigations conform with a 1991 amendment to the Commission's statute which calls on NCLIS to "...promote research and development activities which will extend and improve the Nation's library and information handling capability as essential links in the national and international communications and cooperative networks."
By conducting sample surveys of public library involvement with the Internet (1994 and 1996) and by conducting focus groups of librarians, information technologists, network service providers, policy makers, and elected leaders (1994 and 1995), NCLIS has identified the major economic, social, policy, and technology factors related to U.S. library involvement in the NII.
These recent NCLIS studies, along with associated research into networking activities, reveal a heightened interest within the library and information services community about copyright. There is great concern for maintaining a balance between the needs of users of copyrighted materials, including libraries, while, at the same time, providing safeguards that protect property rights of creators and owners from piracy.
Librarians are concerned to maintain a balance which is dependent on statutory limitations on owners' exclusive rights in copyrighted works. Similarly, publishers and owners of copyrighted materials emphasize the fundamental economic importance of assuring that digital products and services will receive the necessary protection from unauthorized use and infringement.
Publishers, librarians and information specialists identify the copyright law and related policies as critical to the full exploitation of the new technology and the achievement of the vision of the NII. Unless the framework for legitimate commerce is preserved, the vast communications network that is emerging as the NII will not achieve its full potential. At the same time, unless the actual consequences of the proposed amendments to the Copyright Act incorporated in H.R. 2441 are considered carefully and comprehensively, the balance between protecting and limiting rights may be placed in jeopardy. This balance of interests must be preserved in order to provide the public with the fullest possible range of entertainment, information, enrichment, culture, and knowledge.
The Commission is pleased to provide comments and views on H.R. 2441. In general, NCLIS supports the bill's overall goals and agrees with the principles underlying many of the bill's provisions. However, the bill involves extremely complex issues that cut across a broad range of legal, technological, and economic policies and practices. Careful analysis is needed to assure that the consequences of the proposed changes are clearly understood and analyzed.
Many of the proposed amendments and statutory changes require in-depth analysis and examination to assess the impact of enactment on current practice and future developments. Thus, for example, the proposal that a work's public distribution by transmission be subject to the copyright owner's exclusive distribution right needs to be examined for the effects it may have on other provisions of the statute.
The incredibly rapid pace of technological change is blurring the boundaries and distinctions between publishing, distributing, browsing, reproducing, and transmitting works in electronic format. The impact of any one of the individual proposed amendments to the Copyright Act included in H.R. 2441 may not, when considered separately, appear to disturb the balance between copyright owners' rights and limitations on these rights. But the overall cumulative impact of the proposed changes may skew this delicate balance and deter the development of the NII. This is why a careful analysis of the bill's provisions is needed.
Changes to the statutory provisions which establish the rights and protections, as well as the exemptions to these rights and protections, that serve as the foundation and basis for creative, intellectual, and knowledge activity in the Nation should not be accomplished without due deliberation. Neither should changes be enacted without a careful and full understanding of the consequences that these changes are likely to have on the various constituencies dependent upon copyright policies. Those affected include publishers, libraries, and users. As digital technologies and communications networks continue to develop, evolve, and change, the impact of the proposed changes may be more significant than we are able to predict from the present perspective. As a result, Congress should carefully avoid enactment of provisions that would create impediments to the continued development of the NII. In addition, the proposed changes should be examined carefully to determine if enactment of the amendments will shift the balance struck by current law between owners and users of copyrighted works.
This bill presents changes designed to bring the copyright law into the digital age by proposing specific statutory changes, amendments, and clarifications. These changes focus primarily on clarifying protections for the exclusive rights of copyright owners. The provisions of H.R. 4221 are based on recombinations included in the report of the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force (IITF).
Considerable thought and discussion of the current copyright law and intellectual property policies related to digital information are reflected in the IITF Working Group's comprehensive report. Although the recommendations and discussions included in the report serve as the basis for proposed changes to the Copyright Act, not all the issues in the report's discussions are reflected in H.R. 2441.
As an example, although the report examines the intellectual property implications of the NII, no statutory changes in §107 (Limitations on exclusive rights: Fair use) of the Copyright Act are proposed. Rather, the Working Group established a separate Conference on Fair Use (CONFU) to determine whether educational or library guidelines can be formalized. Unfortunately, the CONFU process may not produce useful results. Another, more formally established series of discussion and negotiations should be held to focus attention on the Fair Use provision as applied to library practices. Congress should take the leadership in this area.
The Working Group deserves commendation for undertaking an examination of the copyright law to eliminate uncertainty related to digital information. The report provides a discussion of the issues faced by interested parties and serves as the basis for exploring the nature of electronic communications in the future. However, much of the emphasis of the report's recommendations for statutory amendments reflects an interest in the protection of the rights of copyright owners. To the extent that the commercial owners control the transmission of works as public distribution, copy, or display, and are encouraged to develop and employ technology to restrict unauthorized, non-compensated access to works, those in the public sector that require enhanced access to copyrighted works may be stymied.
The possibility that the proposed changes may upset or alter the balance, requires a careful examination of the possibility for modifying or altering the proposed amendments to the Copyright Act to accommodate the needs of both users and owners of works. Perhaps after a fuller Congressional examination of the issues, additional changes to the fair use doctrine, as well as additional clarifications to Section 108 exemptions, will be advisable in order to provide parallel clarification and fine-tuning to the public sector exceptions from exclusive rights to publication, display, transmission, as well as to guarantee safeguards to privacy and public access. These changes may be necessary in order to reduce uncertainties for libraries, online service providers, and others.
Will the balance between the rights of users and owners of information services and products, a balance that the copyright law was established to maintain and protect, be upset (as some in the library community have asserted) by the enactment of provisions of H.R. 2441? Congress should investigate this possibility in considering the bill.
Careful consideration of these issues should involve a comprehensive examination of the issues and concerns related to interlibrary loan, document delivery, electronic sharing, electronic reserves, preservation, browsing, and fair use related to digital works. Such an examination should involve discussion and consultation among representatives from publishing and libraries, as well as other educational groups, meeting together to consider proposals for amending current statutory provisions relating to exemptions or limitations to exclusive rights in copyrighted works. Congress may choose to call on the Copyright Office to convene such a group to examine these fair use issues. Alternately, or in conjunction with the Copyright Office, Congress may want to consider charging the National Commission to perform this examination.
We cannot afford to upset the balancing of rights and limitations which supports the creative and innovative efforts of our society. On the other hand, if provisions of H.R. 2441 merely clarify issues related to the existing balance between copyright property owners and users in order to more effectively exploit electronic and networked information services for the benefit of the public interest, then there should be no objection to providing similar clarification to those portions of the law that set limitations on those exclusive rights.
In conclusion, I want to thank the Subcommittee on Courts and Intellectual Property of the House Committee on the Judiciary for this opportunity to share these concerns and views. In general, NCLIS recommends that the following factors be used to guide Congressional deliberations concerning H.R. 2441:
A.) Although H.R. 2441 provisions reflect the IITF Working Group's report, the report covers a wider range of issues and topics than the points included in the bill. Congress should consider an examination of those areas of the Copyright Act that are not addressed in this particular legislation to determine if further statutory changes are required to maintain the balance between owners rights and limitations;
B.) Congress should allow time to carefully research and understand the consequences of proposed changes on the general public. Statutory changes must not contribute to the gap between information "haves" and "have nots", especially when it comes to the availability of new information technologies;
C.) Congress should make a special effort to hear viewpoints from all interested parties concerning the proposed changes. This includes librarians from academic institutions as well as users of public libraries, as well as representatives from organizations with specialized interests in digital media;
D.) Congress should take advantage of the assistance of other federal agencies such as the Copyright Office and the National Commission to undertake an examination of the impacts of the proposed statutory amendments. CONFU functions as an informal process and is not assured success in developing guidelines. Rather, Congress should consider establishing a balanced group to establish common ground and to clearly set responsibility for the group to develop legislative proposals that update the balance between owners exclusive rights and the limitations on these rights that serve the interests of the public.
I want to thank the Subcommittee on Courts and Intellectual Property of the House Committee on the Judiciary for the opportunity to share these concerns and views. The U.S. National Commission on Libraries and Information Science (NCLIS) is a permanent independent federal agency advising the President and Congress on policies related to libraries and information services adequate to meet the needs of the American people.
NCLIS recommends that the following factors be used to guide Congressional deliberations concerning H.R. 2441:
A.) NCLIS in general supports the bill's overall goals and agrees with the principles underlying many of the provisions included in the bill. However, NCLIS recommends that Congress undertake a careful examination of those areas of the Copyright Act that are not addressed in this particular legislation to determine if further statutory changes are required in order to maintain the balance between owner's rights and limitations or exemptions to these rights;
B.) Congress should allow sufficient time to carefully research and understand the impact of the proposed changes on the general public. Statutory changes to the Copyright Act must not widen the gap between information "haves" and "have nots", especially when it comes to providing the public with the advantages promised by the full array of new information technologies;
C.) Congress should make a special effort to solicit viewpoints from all interested parties concerning the proposed statutory changes and the possible overall cumulative impact that the proposed changes may have on the balance between the rights of owners and limitations to these rights for users of copyrighted works. This should include hearing from librarians in academic institutions and users of public libraries, as well as representatives from organizations with specialized interests in digital media;
D.) Congress should take advantage of other federal agencies such as the Copyright Office and the National Commission to assist with an examination of the impacts of the proposed statutory amendments. Congress should consider establishing a balanced representative group for "common ground" discussions and charge that group with responsiblity for developing legislative proposals to assure that the balance between owners exclusive rights and the limitations on these rights will serve the interests of the public.
Just as Congressional telecommunications reform action last week addressed the need to preserve and advance universal service by providing discount rates for schools and libraries, similarly, Congressional action to update the Copyright Act for the information superhighway must assure that schools, libraries, and users are able to fully participate in the digital age.
Thank you for the opportunity of presenting these points today. I would be pleased to respond to any questions.