Publication Date

February 1, 1995

Copyright and "Fair Use" in the Electronic Environment

A series of hearings and conferences have followed the release last July by Secretary of Commerce Ron Brown of the report Intellectual Properly and the National Information Infrastructure: A Preliminary Draft of the Report of the Work Group on Intellectual Property Rights. Bruce A. Lehman, assistant secretary of commerce and commissioner of patents and trademarks, chaired this working group. The report recommends changes in the U.S. copyright law to provide greater protection for copyrighted information that could be accessed electronically. While Lehman has described the possible changes as modest, many in the library and scholarly communities perceive a broadening of owners’ rights and a narrowing of researchers’ interests. Since many scholars are both researchers and authors and since professional associations publish as well as support research, historians have an interest in both making information accessible and protecting the rights of creators and owners of material. Transferring many of the principles of fair in the paper-based environment to the electronic environment, however, is not easy.

As a result of the debate around the recommendations of the report, Bruce Lehman hosted in September a conference to specifically address the topics of educational and library "fair use" issues in the National Information Infrastructure. The goal of the conference was to begin work on the development of guidelines on the use of copyrighted works in the digital networked environment. Each of the participating organizations in the conference presented brief statements identifying issues of concern. Participants identified over 20 specific issues. The NCC statement focused on two issues-the strengthening of the provisions of the copyright law to allow preservation activities that use electronic technologies and the clarification of the appropriate use of new digital technologies by interlibrary loan programs.

Copying for preservation purposes is allowed under the Copyright Law, Public Law 94-553. Section 108 (c) of this law states: "The right of reproduction under this section applies to a copy or phonorecord of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price." The law also specifies in Section 108 that the reproduction should be limited to "no more than one copy." Although microfilm is still the primary medium for preservation, technology is changing and many are foreseeing a time when preservation could be greatly enhanced by digital scanning and other new technologies. The NCC and others support changes to the preservation sections of the Copyright Act to better address the preservation needs of libraries and archives.

Also in Section 108 of the Copyright Law there are provisions that provide the legal underpinnings for what is now a very extensive system of interlibrary loan. The law states, "Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecordings for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work."

Interlibrary loan makes a significant contribution to scholarly research and for historians it is an invaluable tool for gaining access to rare material. Faced with increasing travel costs, historians would often have to omit material from their inquiry if they did not have the option of using interlibrary loan. The NCC has urged that any new guidelines should take into consideration the role of new technologies in assisting libraries in the servicing of out-of-print material.

The September meeting in which participants discussed the broad concerns around copyright and "fair use" in the electronic environment made clear that guidelines could not be quickly written. Thus the Patent and Trademark Office sponsored a follow-up meeting on December 2. In response to the library and research communities' call for changes to accommodate use of computer technologies in preservation and interlibrary loan activities, representatives of the publishing community raised reservations about the use of digital technology for both of these activities. Publishers asserted that once material is in an electronic format it may be easily distributed and the authors' rights to royalty income abused. Users pointed out that in the cases of both preservation and interlibrary loan activities. The material is usually quite old, rare, or very hard to locate, and thus there is no royalty income at issue. However, representatives of the American Association of Publishers do not support the sending of any requested interlibrary loan materials by either fax or electronic mail. It is currently estimated that libraries send a significant percentage of interlibrary loan material electronically. Some qualifiers are definitely needed to clarify the kinds of material that may be copied electronically for preservation and interlibrary loan purposes. The development of appropriate parameters will be the subject of another working meeting early in the new year, in which the NCC will be participating.

American Historical Association Joins New Court Case on Electronic Records

In December the American Historical Association joined the American Library Association, the Organization of American Historians. Public Citizen, the Center for National Security Studies, the National Security Archive, journalist Scott Armstrong, and researcher Eddie Becker in a suit to block the implementation of an agreement made in 1993 between former U.S. Archivist Don W. Wilson and President George Bush. In the early hours of January 20, 1993, just prior to President Bill Clinton's inauguration. Bush and Wilson signed a memorandum of agreement concerning the custody and control of the computer backup tapes that were the subject of the court order inArmstrong v. Executive Office of the President, frequently referred to as the PROFS case. The archivist agreed that the National Archives would take physical custody of the approximately 5,000 backup tapes of Reagan and Bush administration computer files and that the National Archives staff would take the initial steps in segregating the presidential and federal information. The memorandum states that no third parties, except those with lawful subpoenas, will be allowed access to this information until the material is segregated. Throughout the agreement, instead of using the term “presidential records,” the agreement states that ”George Bush shall retain exclusive legal control of all presidential information, and all derivative information in whatever form, contained on the materials.”

The distinction between federal and presidential records has important access implications. Federal records, created by agencies of the federal government, are from the time of their creation subject to the Freedom of Information Act (FOIA). However, access to them is subject to the criteria for classification specified in Executive Order 12356. Presidents retain claims of privilege and exert considerable control over access to presidential records. The Presidential Records Act, which went into effect in 1981, states that five years after a president leaves office, presidential records are subject to FOIA requests. Again, requests are subject to protection of national security concerns by the executive order. The act also provides that 12 years after a president leaves office all but the most sensitive material is to be made available. However, there are currently more legal provision for judicial review of FOIA requests of federal records than for presidential records.

The "Bush-Wilson Agreement" contains special privileges for the president not included in the Presidential Records Act, creates a process of segregating federal and presidential material that could take decades to complete, and diminishes the authority of the U.S. archivist Thus plaintiffs ask that the court enjoin Acting Archivist Trudy Huskamp Peterson from implementing the "Bush-Wilson Agreement" because it violates current laws, especially the 1978 Presidential Records Act Soon after signing this agreement, which gave Bush "exclusive legal control" over the records created by the chief of staff and senior presidential assistants, Wilson resigned from his position as U.S. archivist and became the director of the Bush Center in Houston.

The Presidential Records Act was enacted in response to former President Nixon's efforts, just prior to his resignation to prevent public access to the records of his administration. The purpose of the Presidential Records Act is to prevent presidents from entering into private arrangements that would impede preservation and access to records of their administrations.

NCC Completes Work on Four Position Papers on Declassification Policy

In 1993 the Organization of American Historians, with the National Coordinating Committee staff serving as special investigators, became the recipient of a Department of Defense Legacy Grant. The purpose of the grant was to explore the problems that have contributed to the enormous backlog of classified historic records and to prepare four position papers that address the most pertinent issues.

The Legacy Resource Management Program was established by Congress in 1991 to provide the Department of Defense with an opportunity to enhance its management of both natural and cultural resources. One component of the Legacy Program was a Cold War Task Area. The NCC and others have noted that making the history of the Department of Defense during the Cold War available rests on access to records, many of which are still classified. A large percentage of the Department of Defense records from the 1950s and early 1960s are still closed, making it difficult for federal employees, as well as scholars, to study the Cold War in depth.

There is widespread recognition by government officials that the national security information system needs major revision. On April 26, 1993, President Clinton issued a presidential directive calling for a reevaluation of our security classification systems to bring them in line with the reality of the end of the Cold War. The following month, the secretary of defense and the director of central intelligence established a Joint Security Commission with a mandate to examine all aspects of existing security practices and procedures within the intelligence and defense communities to identify improvements to the security system, noting that the current system is too costly and complex. The administration has identified the broad problem but no solutions and no new executive order have evolved from the 1993 announcements of initiatives to reform the declassification system. Thus it was fitting that historians through this Legacy Grant have an opportunity to undertake an in-depth study of the issues and have position papers to share with administration leaders and others engaged in tackling this thorny problem. Furthermore, the additional knowledge and background obtained from this study will serve historians in good stead as the debate continues over the revision of national security information policy.

In December the NCC, after consultation with many historians inside and outside of the federal government, completed work on the following four position papers: 1) "The Appropriate Criteria for Continued Classification of Historical Records: Balancing the Public's Right to Know with the Protection of Sensitive Information"; 2) "Foreign Government Information: A Declassification Policy Problem"; 3) "Dispersal of Authority: The Difficulties of Coordination”; and 4) ''The Role an Interagency Review Panel in Declassification Policy." Copies of these papers are available from NCC, 400 A St., SE, Washington, DC 20003.

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