Publication Date

April 1, 1996

Reauthorization Legislation for NHPRC Introduced

On February 27 Senators Mark Hatfield (R-Ore.) and Paul Sarbanes (D-Md.) introduced 5.1577, a bill to reauthorize the National Historical Publications and Records Commission (NHPRC). In introducing the legislation, Senator Hatfield stressed that "future generations of Americans deserve the right to have accurate record" of their past." Senator Sarbanes's floor statement emphasized the bipartisan support that the NHPRC has enjoyed over the years as well as the value to scholars and communities of the NHPRC's promotion of the preservation and use of America's historical legacy. Under current law, the NHPRC is funded through fiscal 1997. Since it takes time for legislation to work its way through Congress, it was important to have this bill introduced early in 1996. S.1577 calls for a ceiling of $10 million for fiscal years 1998, 1999, 2000, and 2001. Although no bill has yet been introduced in the House, one is expected soon.

House Introduces Resolution on National History Standards

On January 25, Representative Lamar Smith (R-Tex.) introduced H.R. 348, a resolution expressing the House of Representatives’ disapproval of the standards proposed by the National Center for History in the Schools for the teaching of United States and world history. The resolution, which has been referred to the House Committee on Economic and Educational Opportunities, has ninety-six cosponsors, all but four of whom are Republicans. The resolution expresses the sense of the House but has no statutory authority. It is unclear whether there will be hearings on this resolution. Some doubt that with the tight schedule of this election year the resolution will reach the House floor for a vote.

A similar resolution passed the Senate on January 18, 1995, by a vote of ninety-nine to one; however, the circumstances for the Senate vote were very different from that in the House. In the Senate this legislation first appeared as a binding amendment to the Unfunded Mandates Bill. It would have prevented further funding to the National Center for History in the Schools and would have prevented the Department of Education's Goals 2000 project from developing voluntary history standards based on the work of the center. After a lengthy Senate debate in which a number of senators, including Republicans, supported the history standards, the Senate leadership arrived at a compromise that involved the passage of a resolution that was not binding and did not have statutory authority. The strong bipartisan Senate vote indicated the compromise nature of the measure and the fact that it was not binding. On October 11, 1995, the Council for Basic Education released the results and recommendations of two independent panels that reviewed the national history standards. The two panels recommended some refinement but endorsed much of the work undertaken by the National Center for History in the Schools.

CONFU Discusses Its Future

Although the Conference on Fair Use (CONFU) has been meeting for over 18 months, the group of publishers, librarians, and users has not yet been successful in its efforts to produce guidelines for uses of copyrighted works by librarians and educators in the digital age. In September the Working Group on Intellectual Property Rights issued a report, Intellectual Property and the National Information Infrastructure, frequently called the White Paper. This report called attention to the convening of CONFU for the purpose of developing guidelines. It noted that CONFU includes 60 interest groups representing the views of creators and users of copyrighted material and that it had been meeting regularly in sessions that-are open to the public.

The role of CONFU also emerged as an issue of discussion in the February 8 House hearing on copyright in the digital age with references to its failure to have produced guidelines. There was some discussion of whether a congressionally mandated commission should be formed to produce guidelines. However, Carlos Moorhead (R-Calif.), the chair of the House Subcommittee on Courts and Intellectual Property, and Patricia Schroeder (D-Colo.), ranking minority member, concluded that CONFU should be urged to produce the agreed-upon guidelines in a timely fashion.

When CONFU met on February 28, the group engaged in a lengthy discussion about what it could realistically accomplish. The sense of the meeting was that CONFU would send a letter to the House Subcommittee on Courts and Intellectual Property indicating its seriousness in developing guidelines. CONFU will focus in the coming months on small working-group meetings that will refine language for guidelines for multimedia classroom use, electronic reserves, distance learning, visual image archives, and interlibrary loans.

Appeals Court Upholds Copying of "Course Packs"

On February 12 the U.S. Court of Appeals for the Sixth Circuit ruled in favor of the Michigan Document Services and against the plaintiffs-Princeton University Press, Macmillan, and St. Martin's Pressing Case No. 94-1778.

The three presses had brought a copyright infringement case against the Michigan Document Services, which has five small copy shops that serve the University of Michigan and other institutions in the Arm Arbor area and that reproduce course packs without securing copyright permissions from the authors or publishers. James Smith, the owner of Michigan Documents Services, decided that the current process for obtaining permissions to reproduce copyrighted materials was prohibitively time consuming and expensive. He thus prepared course packs for teachers and students without securing permissions, operating on the basis that he was engaged in copying for educational purposes, which comes under the fair-use provisions of the copyright law. The appeals court ruling reversed the decision of the district court.

Many professors rely on the flexibility and individuality that photocopied course readings or course packs can provide. Professors assign books, which students purchase. The course packs supplement the assigned books and may include journal articles, material that is difficult to find, newspaper articles, excerpts from books, course notes, and syllabi.

Circuit Judge J. Ryan made the following points in his opinion: while the copy shop is a commercial enterprise, the copying of course packs is for educational purposes; since course packs are priced per page based on copying costs-regardless of the contents-the copy shop is not making a commercial gain off of copyrighted materials; and since Congress specifically anticipatedthe use of “multiple copies” for classroom teaching, the copy center is making use of professional copying technologies to assist the professors and students in an activity that faculty and students are permitted to undertake but which they cannot do as economically and efficiently as the copy center. Significant weight was placed on the fact that the professors signed statements that they would not have assigned the original works, even if copied excerpts were not available. Judge Ryan also noted that students who used the course packs were not a market for the purchase of the original works; course packs are particularly helpful in interdisciplinary courses that draw small portions from a number of disciplines; and the record contains no evidence that the market for the original work was affected by the use of excerpts in course packs.

After a lengthy discussion of the four factors affecting fair use that are in Section 107 of the copyright law, Judge Ryan's ruling concluded with an additional consideration. The ruling states: "More than 100 authors declared on record that they write for professional and personal reasons such as making a contribution to the discipline, providing an opportunity for colleagu.es to evaluate and critique the authors' ideas and theories, enhancing the authors' professional reputation, and improving career opportunities. These declarants stated that their primary purpose in writing is not for monetary compensation and that they advocate wide dissemination of excerpts from their work via course packs without imposition of permission fees. The fact that incentives for producing higher education materials may not revolve around monetary compensation is highly relevant. Copyright law seeks to encourage the use of works to the greatest extent possible without creating undue disincentives to the creation of new works."

New Law Prohibits Automatic Declassification by Department of Energy

On February 10 the president signed into law S.1124, the National Defense Authorization Act for Fiscal Year 1996. The law includes section 3155-"Review of Certain Documents before Declassification and Release"-which says that the Secretary of Energy shall ensure that before a Department of Energy document is declassified it will be reviewed to determine whether it contains restricted data about nuclear weapons designs. Specifically the law states, "The Secretary may not implement the automatic declassification provisions of the Executive Order 12958 if the Secretary determines that such implementation could result in the automatic declassification and release of documents containing restricted data."

One of the most applauded provisions of Executive Order 12958, signed by President Clinton last April, stated that all records over twenty-five years old that had not been exempted from declassification would be opened within five years. This provision in effect established a policy for bulk declassification—only the records deemed to be most sensitive would require the expensive page-by-page review. This new law prohibits any bulk declassification of Department of Energy records and severely undermines the reforms of the new executive order. In report language the conferees "strongly urge the president to immediately review and revise Executive Order 12958."

Future for Agricultural History Office Appears Grim

Hopes that the history office at the Department of Agriculture might be relocated to the National Agricultural Library have diminished significantly in recent months. In 1994, as a part of a streamlining effort, the Department of Agriculture initiated a plan to eliminate the Agricultural and Rural History Section. This precipitated correspondence and meetings between historical association leaders and managers at the Department of Agriculture. Since 1916 this office had served as the primary history office for the whole department and had established an impressive record of preserving the institutional memory of the agency through its service, research, and publications. One of the recommendations that came out of those meetings was that the history office be transferred from the Economic Research Service, where it had been since 1961, to the National Agricultural library In developments in January, the National Agricultural Library indicated that it did no wish to pursue plans to relocate the history office in the library.

The staff of the history office have been re classified from "historians" to "social science analysts" and have been disbursed to work in various offices. The files of the his tory office are stored in a parking garage While the collection, which filled a large room, does not include much unique material, it brought together published and unpublished materials in a very accessible way I that has been valuable to researchers in and outside the agency.

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