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From the Executive Director's column in the March 1998 Perspectives

A Rare Opportunity to Create the Ideal Electronic Environment

Sandria B. Freitag, February 1998

We face a unique moment in history: the chance to work positively and proactively for the right electronic environment in which to create, disseminate, and use new knowledge. This may be the first time ever that scholars and teachers do not need to struggle to defeat legislation. On the contrary, bills are pending before the House and the Senate that will strike a careful balance between the protection of intellectual property rights for creators and disseminators and the needs of an informed public to have access to information through fair use provisions. Two very promising bills await additional cosponsors in Congress: in the Senate, the Digital Copyright Clarification and Technology Act of 1997 (S.R. 1146), introduced by John Ashcroft (R-Mo.); and in the House, the Digital Era Copyright Enhancement Act (H.R. 3048), introduced by Rick Boucher (D-Va.) and Tom Campbell (R-Calif.).

This is a critical point for legislation that will affect the way historians and other scholar-teachers practice their professions for at least the next decade. There is now a window of opportunity for us all to be able to influence the kind of copyright law (and of other concepts vying with copyright as we know it) that we will live with for another decade or two. These issues now have to be solved satisfactorily, or we will all be caught in a framework for the foreseeable future that creates a digital regime antithetical to the flow of information and dissemination of new knowledge.

As I've noted in previous columns, copyright is one of the most critically important and increasingly complex issues that the educational, research, and cultural community needs to grapple with. The Boucher-Campbell and Ashcroft bills are comprehensive bills that propose to maintain the current balance between the rights of the owners of copyrighted material and public interest in obtaining equitable access to cultural resources. Both bills extend access and fair use concepts as currently practiced in the print world, to enable scholarship and cultural heritage projects to benefit from the new technologies.

There will be no second chance. Copyright law itself is under attack as being an insufficient control over access to material. With moves to give new protection to compilations of public domain material, and to allow license contracts to preempt our rights under copyright law, it is critical to publicly support these two comprehensive, balanced bills and the principles they embody. The alternatives have been shaped by major commercial players in the infotainment industry. Competing against the two pieces of legislation cited above is the administration's WIPO Treaties Implementation Act (S.R. 1121 and H.R. 2281). This legislation omits reference to many issues and precepts that are critical for our community, including those of fair use, first sale, distance education, and liability, and the question whether newly reformulated state contract law would allow online "click-through" licenses to preempt the complexities and guarantees of federal copyright statute. The administration bill in many ways overprotects and is unmindful of the exemptions and limitations embedded in existing copyright law.

The Ashcroft and Boucher-Campbell bills, by contrast, were shaped in large part by a coalition in which the library, educational, and cultural institutions have played a central role. At their heart are the principles, known as the National Humanities Alliance Principles, that our organizations created (see my column, "High Stakes: The Future of Scholarly Communication," Perspectives, October 1997, p. 5, and the AHA web site at http://chnm.gmu.edu/aha). These principles were endorsed in June 1997 by the AHA Council, and adopted as the framework for future advocacy efforts around intellectual property issues. The legislation and follow-up activities needed were discussed again by the Council at its January 1998 meeting.

Now we need to translate our support for the principles into congressional action. The best tactic at this time is to convince a significant number of House and Senate members to become cosponsors of their respective bills. We urge historians to become familiar with the legislation and the issues (see especially the NHA web site at http://www.nhalliance.org), and—if they agree with the analysis presented here—to write to their local representatives and senators to become cosigners of the bills that deal with issues we care about. Early March will be the crucial moment for ensuring sufficient support through cosponsorship for the bills to get a good hearing.