Update on Copyright Legislation on Fair Use of Unpublished Material

On March 5 Representative William Hughes (D-NJ), who chairs the House Subcommittee on Intellectual Property and Judicial Administration, introduced H.R. 4412, a bill to clarify the fair use of unpublished material by amending the Copyright Law. A similar bill, S. 1035, passed the Senate last September. These bills respond to recent rulings of the U.S. Second Circuit Court that have had a chilling effect on historical research and publication of scholarly monographs, making it legally dangerous to quote even the smallest amount of unpublished material without obtaining authorized consent for use. Representative Hughes has indicated a desire to move this legislation quickly through the subcommittee, after which it must be considered by the full Judiciary Committee before going to the House floor for a vote. The House and Senate bills, which vary slightly, will then have to be reconciled by a Conference Committee.

CIA Affirms New Policy of Openness

In January, Central Intelligence Director Robert M. Gates appointed a special Openness Task Force to make recommendations for making more information available to the public and scholars. During his confirmation hearing Gates had referred to the CIA's practice of overclassification, by which most documents are relegated to the black hole of secrecy, and had acknowledged that major changes were needed.

On February 21, Gates released plans for implementing the recommendations of the Openness Task Force. "Communication inside the CIA and the intelligence community has been a problem," Gates noted, and "our relationship to the outside world has been worse still." Yet Gates reiterated that the CIA is and will remain an intelligence organization that will require continued secrecy to protect sources and methods and the national security of the country. Nevertheless, a policy of openness is critical, Gates stated, to making the "CIA and the intelligence process more visible and understandable."

The detailed plan to increase openness includes the creation of a historical review unit with fifteen full-time positions to undertake responsibility for systematic declassification of historical CIA records. In 1985 the CIA established a historical review program to declassify documents; however, Gates noted that the results of that effort "have been quite meager —the consequence of low priority, few resources, and rigid agency policies and procedures heavily biased toward denial of declassification."

The new plan provides an infusion of resources, as well as significant changes in declassification procedures, which Gates says will include a "bias toward declassification of historical documents." The new declassification unit will review all documents over thirty years old and all national intelligence estimates on the former Soviet Union that are ten years old or older. Several members of the review staff will be focusing on events from the late 1940s to the early 1960s of particular interest to historians, and others will be responsible for the CIA's participation in the State Department's Foreign Relations of the United States series. The CIA will also begin to publish an annual index of all documents declassified under all categories of review. One of the most important procedural changes in the new plan is that the Center for the Study of Intelligence, of which the History Office is a part, will be organizationally located directly under the Director of Central Intelligence, and appeals of declassification decisions will go to the Head of the Center and from there to Gates, with no intermediary steps.

For years historians have noted that the CIA used the protection of sources and methods as a shield to prevent the opening of many policy-related records. Historians will be eager to see whether the new plan detailed by Gates is able to reverse a long tradition of secrecy and to make available historic documents such as those associated with the 1954 Guatemalan Coup.

Federal Education Policy

In addition to the education policies advocated by the various candidates for president, there are three fairly different federal education proposals currently under discussion by the Congress. They are President Bush's "America 2000: An Education Strategy," a Senate bill titled "Strengthening Education for American Families Act," and a House bill, "The Neighborhood Schools Improvement Act."

The Senate bill, S.2, which passed by a 92-6 vote on January 28, and the President's plan specifically identified history as one of the subject areas in which students need to have a demonstrated competency. Two of the major components of the President's "America 2000" plan—establishing education goals and instituting national tests—did become a part of the Senate bill. Senator Jeff Bingaman (D-NM) led the effort to ensure a bipartisan composition to the National Education Goals Panel and the National Education Standards and Assessment Council. In commenting on the existing National Education Goals Panel that was charged by Congress last year to oversee the national effort to achieve the six education goals that the President and the state governors had established in 1990, Senator Bingaman stated that he had long objected to the fact that "the panel is not bipartisan and that it is constituted in such a way that politics and not sound educational policy will guide the goals panel in its significant role in forming national education policy in this country." He stressed that his amendments to S.2 would ensure that the reform effort have a bipartisan organizational structure with a bipartisan agenda.

While portions of the President's plan are included in the Senate bill, supporters of the White House initiative were unsuccessful in securing passage of amendments designed to target most of the funding for model schools, called "New American Schools"; to allow private schools as well as public schools to compete for these funds; and to establish a New Low-Income School Choice demonstration project that would give money to a limited number of poor parents who wished to send their children to private schools. In discussing the "New American Schools" section of S.2, the Senate firmly endorsed the position that the bulk of the grants should go to the most needy schools and not, as the President has recommended, to new, model schools. The Senate also rejected the President's proposal that the Secretary of Education select the schools to receive the funds. Instead, in S.2, state leadership decides on the schools that will receive funding.

The House is still holding hearings on its bill and a vote is not anticipated until the spring, at which time a conference committee will have to work out the differences between the two bills. Although the House bill is still being revised, it is clear at this point that the House and Senate bills take very different approaches to questions of both funding and testing. In the Senate bill money will go from states to individual schools while the House bill targets school districts as the recipients of funding. Advocates of the House bill argue that money to school districts has the greatest potential for promoting systemic reforms. On the testing issue, the Senate bill has a national testing provision; however, the House bill offers a more decentralized approach in which states must develop new frameworks and goals and then develop a system of assessment, based on a curriculum that would include non-test indicators.

In light of the current debate on testing, Congress asked the Office of Technology Assessment (OTA) to provide a comprehensive report on educational testing, with emphasis on new approaches to testing and to the benefits and drawbacks of various types of testing. In February OTA released the report, "Testing in American Schools: Asking the Right Questions." A 39-page summary of the report is available free from: Office of Technology Assessment, Washington, DC 20510-8025, or call the OTA Publications Office at (202) 224-8996. Request a summary of "Testing in American Schools" (OTA–SET–520); the full report is not yet available.

National Park Service

On February 26 the NCC provided testimony before the House Subcommittee on Interior of the House Appropriations Committee on the FY'93 budget of the National Park Service. The testimony dealt with four initiatives that many had expected the Administration to include in its budget request but which were absent. The NCC requested specific funding for these four items: the National Historic Landmark Labor History theme study, the National Historic Landmark African-American theme study, the revision of the National Park Service's historical thematic framework, and the implementation of the recommendations in the National Park Service's seventy-fifth anniversary report, "Our National Parks: Challenges and Strategies for the 21st Century." Please contact the NCC if you wish copies of this testimony.

Page Putnam Miller is director of the National Coordinating Committee for the Promotion of History.