Publication Date

November 1, 1998

Senate Hearing on World Intellectual Property Treaties

On September 10 Senator Chuck Hagel (R-Nebr.) chaired the Senate Foreign Relations Committee hearing on the World Intellectual Property Organization (WIPO) treaties. The two copyright treaties under consideration, agreed upon at the end of 1996 by WIPO, deal with the protection of literary and artistic works on the Internet and the protection of the rights of performers and producers of phonographic records. Before these treaties go into effect, they have to be ratified by the U.S. Senate and other governmental bodies around the world. The witnesses at the hearing included representatives of the State Department, the motion picture industry, the telecommunications industries, and the library and scholarly community. Peter Jaszi, a law professor at American University, spoke on behalf of the Digital Futures Coalition, which includes a number of library, archival, and scholarly associations.

The hearing highlighted concerns about whether the treaties should be ratified prior to Congress passing implementing legislation and about whether the treaty legislation could move forward without the controversial database bill that was attached to the House implementing bill. Senator Paul Sarbanes (D-Md.) emphasized that the treaties struck a balance between users and creators but that it wasn't clear that the balance was preserved in the various unrelated attachments to the treaty-implementing legislation. In addition to voicing reservations about intertwining the treaty and the database legislation, several senators indicated that it would not be appropriate for the Foreign Relations Committee to act on the treaties until after the implementing legislation has been passed. On May 14 the Senate passed (99-0) S. 2037, the Digital Millennium Copyright Act of 1998, which has as one of its sections the implementation of the two treaties. On August 4 the House passed by voice vote H.R. 2281, the WIPO Treaties Implementation Act, which, while providing some refinement to the Senate bill, also attached a very controversial database copyright protection provision that is opposed not only by many in the scholarly and library community but also by the Clinton administration. The leadership of the House and Senate is currently deliberating about how best to reconcile the two bills.

Security Classification Appeals Panel Issues Report

On August 26 the White House issued a press release on the two-year report of the Interagency Security Classification Appeals Panel (ISCAP), which was established by Executive Order 12958 to reassess the balance between open government and the need to maintain secrets vital to national security. Roslyn A. Mazer, the Justice Department representative who chairs the appeals panel, said that "reflexive use of old classification categories has been replaced by healthy skepticism."

Since ISCAP began its work two years ago, it has considered appeals of 96 Executive Branch classification decisions. In 59 cases the entire document was declassified, in 22 cases part of the document was declassified, and in 15 cases the document remained classified. While these are encouraging numbers, it does not appear that these declassification decisions are establishing a precedent of increased openness that is filtering down to the declassification units of the various federal agencies.

Government Publications Reform Act

On September 16 the Senate Rules Committee held a hearing on S. 2288, the Wendell H. Ford Government Publications Reform Act of 1998. Named after Senator Ford (D-Ky.), who is retiring this year after 24 years in the Senate and who has worked tirelessly to make government publications accessible to the public, S. 2288 is intended to enhance public access regardless of whether a publication is in paper or electronic format and to strengthen no-fee access through the Federal Depository Library program and the Internet. The bill addresses a number of serious issues: the explosion in electronic publishing by agencies, the lack of a mechanism to ensure that the public has continuous and permanent access to electronic government publications, the need for an enforcement system to ensure that some government publications do not fall between the cracks, and the noncompliance of the lower courts with the current law requiring the dissemination of government publications. In opening remarks at the hearing, both Senator John Warner (R-Va.), the chair of the committee, and Senator Ford stressed their desire to work with any group that had constructive suggestions and emphasized that in a democracy the public deserves access to documents produced with taxpayers' money.

During a July hearing on S. 2288, the committee heard from a number of witnesses, including representatives of the library community who are strong supporters of the bill. The September hearing gave several representatives of businesses, who have been critics of the bill, a chance to express their concerns. It was clear from various exchanges with witnesses that Senators Warner and Ford, who had been engaged for months in trying to broker compromise language acceptable to those in both the nonprofit and for-profit sectors, were losing their patience with the business critics. Ford stated that he fundamentally disagreed with critics who advocated a decentralized structure, arguing that decentralization would lead to loss of information.

One aspect of the bill promoted by many in the library and scholarly community is a provision to ensure that electronic government publications are preserved and permanently available for current and future users. This provision addresses the current loss of government publications taking place on a daily basis as agencies delete files from their web sites without providing a means for permanent access to the electronic publications.

Senators Warner and Ford spoke passionately at the hearing about their determination to get this legislation passed. There appears to be an understanding with the House leadership that if the Senate passes the bill, the House will give it priority attention. However, witnesses such as J. Michael Farren of the Xerox Corporation continue to highlight what they perceive as major flaws in the bill. The American Library Association and the American Association of Law Libraries have pulled out all the stops to support this legislation. For more information about this legislative initiative see the web site of the Inter-Association Working Group (of seven library associations) on government information policy at

Deficiencies in Record Keeping on Gulf War Illnesses Noted

On September 1 the Senate Committee on Veterans' Affairs issued its final report on the committee's special investigation of the Gulf War illnesses. The report devoted a whole section to a discussion of the failure of the Department of Defense and the Department of Veterans Affairs to collect information, retain records, and generate valid data analyses. The report stated, "Even with good intelligence, a high level of preparedness to face chemical or biological weapons threats, and effective program monitoring, the ability to fully address potential hazards to troop health depends on keeping and preserving accurate records." The report illustrates that good records management and archival policies are not optional programs but are essential for agencies to carry out their missions efficiently and effectively.

Update on Online CRS Reports

Prospects are dim for passage in this Congress of S. 1578 and H.R. 3131, bills to provide the public with access to Congressional Research Service (CRS) reports and products on the Internet at no cost. Senator John McCain (R-Ariz.), a key champion of this legislation, notes that CRS receives nearly $65 million a year to provide information and detailed analysis to members of Congress. Currently, members are permitted to provide constituents with reports upon request. This legislation would greatly increase the accessibility of CRS materials, which include reports, issue briefs, and authorization and appropriations products. When McCain was unable this summer to move further with the stand-alone bill, he tried to attach it as an amendment to the Legislative Branch appropriations bill; however, the amendment was ruled as not germane. Now there appears little hope for its passage in this session, but McCain has indicated that he does not intend to drop his commitment to this issue.

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