Bill Ferris Testifies before House Subcommittee

On March 12, 1998, the Subcommittee on Interior and Related Agencies of the House Appropriations Committee held a hearing to consider the fiscal 1999 budgets for the arts and humanities endowments. Rep. Ralph Regula (R-Ohio) chaired the hearing, which was also attended by Reps. David Skaggs (D-Colo.), James Moran (D-Va.), Sidney Yates (D-Ill.), and Dan Miller (R-Fla.). William Ferris, who was confirmed last fall to head the National Endowment for the Humanities (NEH), began his testimony by stressing that he is honored to lead the endowment during these exciting times for the humanities. Ferris described "Rediscovering America through the Humanities," a new initiative that includes such projects as the development of 10 regional humanities centers. Through these centers, Ferris said, the NEH could help the people of the United States learn more about the special heritage of where they live.

A clear theme of Ferris's testimony was the need -to work with corporate CEOs to create a partnership of support for the humanities. If the NEH is to assist in transforming culture and education in America, Ferris said, it will have to focus on priming the pump to get corporate support.

In response to questions from Yates about the NEH program to preserve brittle books, Ferris noted that there is progress, but due to budget cuts the NEH is behind its projected schedule. Ferris also talked about how budget cuts had put at risk the projects that preserve the papers of America's historic leaders.

Skaggs said that the worst civic virus is cynicism and asked how the NEH could assist with this problem. Ferris responded that the excitement of ideas can create a new reality and it is important for Congress to realize that in funding the NEH, they are funding ideas and people, institutions.

Moran asked Ferns to summarize the economic benefits derived from NEH grants. Ferris talked about the economic impact of NEH films and said that visits to Civil War sites doubled as a result of Ken Burns's documentary on the war. He also commented on current efforts to expand cultural tourism.

Miller asked about the distribution of NEH funds across the country. Ferris answered that the NEH cares about providing support to all regions and stressed the strong relationship with state councils. Regula asked about efforts to simplify the grant application process and about the involvement of the NEH in the White House Millennium Project.

Regula concluded with a word of caution, saying that it is unlikely that the subcommittee will be able to provide the total $136 million request for the NEH in fiscal 1999, which would mean an increase of $25.3 million above the endowment's current level of $110.7 million. However, Regula did add that "if we can't do it all, we would like to work with you on priorities."

Colloquy on Declassification Legislation

On March 3, eight key senators inserted into the Congressional Record a colloquy on S.R. 712, the Government Secrecy Act. The act would provide a statutory basis for a national security information policy instead of the current system in which the president establishes this policy by executive order. The legislation, which was a recommendation of the 1997 report of the Commission on Protecting and Reducing Government Secrecy, aims to promote greater consistency in security information policy and to reduce unnecessary secrecy. The exchange of comments between the senators created a record of their thoughts and concerns, and may be useful in working out thorny issues.

However, the colloquy also highlighted the extent to which these senators, most of whom are cosponsors of S.R. 712, differed with each other on major provisions of the bill. Senators participating in the colloquy were Trent Lott (R-Miss.), majority leader; Thomas Daschle (D-S.Dak.), minority leader; Fred Thompson (R-Tenn.), chair of the Senate Governmental Affairs Committee; John Glenn (D-Ohio), ranking minority on the Senate Governmental Affairs Committee; Richard Shelby (R-Ala.), chair of the Senate Select Intelligence Committee; Robert Kerrey (D-Nebr.), vice chair of the Senate Select Intelligence Committee; Daniel Pa trick Moynihan (D-N.Y.), chair of the Commission on Protecting and Reducing Government Secrecy; and Jesse Helms (R-N.C.) a member of the Secrecy Commission.

Two of the core provisions on which the senators disagreed were the section allowing judicial review of executive branch classification decisions and the provision for the creation of a National Declassification Center to coordinate declassification throughout the government. Concern was also expressed about the negative impact the bill may have on the protection of intelligence material and the expected high cost of implementing the bill. Although it was pointed out in the colloquy that the Intelligence, Armed Forces, and Foreign Relations committees also have an interest in this legislation, Senator Thompson said that he intended to work with Senator Glenn to report an amended S.R. 712 very soon. Despite the renewed interest in this legislation, it is doubtful that any legislation will pass in this Congress.

National Archives and Electronic Records Issues

Federal Judge Paul L. Friedman scheduled a hearing for March 20 to consider a motion to require the National Archives to comply with the judge's earlier ruling in Public Citizen v. John Carlin. In October 1997 Friedman ruled in favor of the plaintiffs in the case, which include the American Historical Association, the Organization of American Historians, and the American Library Association. He stated that the archivist of the United States was wrong to allow federal agencies to routinely destroy the electronic versions of word processing and electronic mail records, even if paper copies were made. The opinion stressed that the general records schedule was designed to handle records that document housekeeping functions dealing with personnel, maintenance, and procurement but not unique programmatic records. He thus ordered that the National Archives' General Records Schedule 20 (the regulation that allows federal agencies to destroy electronic programmatic records) is null and void.

On February 25 the plaintiffs asked the court to promptly schedule a hearing and require that Carlin show why he had continued to have agencies comply with General Records Schedule 20.

On March 10, almost two weeks after the plaintiffs' request for a court hearing, the archivist issued a bulletin to all federal agencies on the creation and disposition of electronic records. The purpose of the bulletin was to ensure that agencies are adequately documenting their activities. The bulletin reaffirmed the National Archives' commitment to developing a better approach to the disposition of electronic records, but also stated that although the government appealed this case, the Department of Justice had advised that federal agencies could continue to rely on General Records Schedule 20.

On March 16 the National Archives' interagency Electronic Records Work Group released a paper outlining possible short-term approaches for scheduling electronic records currently covered by General Records Schedule 20. The working group is seeking comments from the public by March 31, 1998, on the options and issues raised in the paper. The options paper may be seen on the National Archives' web site at http://www.nara.gov/records/grs20/opt312.html.

Copyright Legislation Referred to the House Judiciary Committee

On February 26 the House Courts and Intellectual Property Subcommittee considered H.R. 2281, the World Intellectual Property Organization Treaty Implementation Act. The packed committee room and the 100 percent attendance of all the members of the subcommittee indicated the high interest in these bills. In opening remarks Rep. Howard Coble (RN. C.), the chair of the subcommittee, stressed that all members had had 72 hours to study his amendments. He made it clear that he did not like dealing with "surprise" amendments. Rep. Barney Frank (D-Mass.), the ranking minority member of the subcommittee, used his opening remarks to give a strong lecture to those on all sides of copyright issues, urging everyone "to keep hysteria to a minimum." He noted that supporters and opponents of this legislation have tended to conjure up the most horrible but unlikely scenarios. "Partisanship and ideology," he said, are irrelevant to these bills and members are trying to reach appropriate compromises. Both Coble and Frank indicated their interest in "fair use" issues and said that they had listened to the library community's concerns during the hearings.

Following opening remarks, Coble introduced an amendment that would ensure that no criminal cases would ever be brought against a library, archives, or educational institution under the provision of this law regarding use of circumvention devices designed for gaining access to copyright protection systems. Frank then offered a substitute amendment that would include a new section to the law dealing with exemptions to the circumvention provision for libraries, archives, and educational institutions if the purpose of access was solely to browse in order to decide whether to acquire the material. Coble clarified the differences between the two amendments by saying that under his amendment it would be unlawful but not subject to criminal penalties, while under the Frank Amendment circumventions for browsing would be legal for libraries, archives, and educational institutions. In the debate, Rep. Conyers (D-Mich.) said that he opposed the Frank Amendment, which he characterized as designed as "allowing browsing rights if you don't steal anything." The Frank Amendment was narrowly defeated by seven nays and six ayes. McCollum (R-Fla.) was not present for the vote. The five members voting with Frank were Sensenbrenner (R-Wis.), Pease (R-Ind.), Boucher (D-Va.), Lofgren (D-Calif.), and Delahunt (D-Mass.). The Coble amendment passed on a voice vote. Although the subcommittee discussed several amendments introduced by Reps. Rick Boucher (D-Va.) and Zoe Lofgren (D-Calif.), these amendments did not pass. However, there was general consensus on the subcommittee that more work needed to be done (before the mark-up by the full committee) to avoid unintended consequences. By a large majority-with only Boucher and Lofgren opposing-the subcommittee approved the bill as amended, and sent it on to the House Judiciary Committee.

The library and scholarly communities have opposed this legislation and have sought a-more comprehensive approach to the issue of copyright law in the digital environment. There is a strong sense in the broader educational community that this legislation does not go far enough in assuring the application of the current principles of "fair use" for educational purposes to the electronic world.