NCC Advocacy Update

NCC Advocacy Update, November 1992

Page Putnam Miller, November 1992

FY'93 Appropriations

Eager to adjourn and return home for a last round of campaigning before election day, Congress passed thirteen appropriations bills during the first week of October. The Treasury, Postal Service, and General Government appropriations bill, sent to the President on October 5, includes $165 million for the National Archives with $5 million earmarked for the National Historical Publications and Records Commission (NHPRC). The National Archives, which received $152 million this year, will have a $13 million increase in FY'93; however, there is no additional operational money because almost all of the new money involves preparations for the move to Archives II, a new research facility that will open in 1994. Initially, the House passed an appropriation bill with $163 million for the Archives and $4 million for NHPRC. The Senate amounts were higher, with $167 million for the Archives and $6 million for NHPRC. The Conference Committee allocated $165 million for the Archives, the amount originally requested by the President, and earmarked $5 million for NHPRC, which is $1 million more than the President's request and the House bill and $1 million less than the Senate figure. The final $5 million appropriation for NHPRC represents a 7 percent decrease from the FY'92 level of $5.4 million for grants.

The National Endowment for the Humanities will have a small increase in funding in FY'93. Although the President had requested a $11 million increase to raise the NEH budget from its current level of $176 million to $187 million, the Congress sent to the President an Interior Appropriations bill that included only $177.4 million for NEH. The FY'93 budget for NEH includes only minor changes in the FY'92 levels; however, the new budget does allocate almost a $1 million increase for state humanities programs. Regarding the newly funded dissertation fellowships, House Report 102-626 states: "Although the Committee remains committed to the dissertation fellowship program initiated with the 1992 appropriation, no new appropriation is provided in 1993. The funds appropriated in 1992 are sufficient to carry the program through the 1993 grant cycle."

The National Endowment for the Arts (NEA), which was funded in FY'92 at the same level as NEH, did not fare as well in either the President's budget or the final bill. NEA's budget for FY'93 will be $174 million, $3 million less than NEH. This is the first time that the NEH budget has been larger than that of NEA.

The Interior Appropriations bill included $75,000 for a National Historic Landmark Study of American Labor History, which is to be undertaken by a cooperative agreement between the National Park Service and a scholarly organization. Funds for state historic preservation programs remained at the current level, $29 million, with an increase from $5.7 million to $6.2 million for the National Trust for Historic Preservation.

Congress Passes Law to Clarify Fair Use of Unpublished Copyrighted Material

Just prior to adjourning, the Senate passed H.R. 4412, a bill to clarify the "fair use" of unpublished copyrighted material, which had been passed by the House in August. The Senate had passed a similar bill almost a year ago; but in the interest of getting something passed before the end of the 102nd Congress, the Senate agreed to the House version. H.R. 4412 states: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that section 107 of Title 17, United States Code, is amended by adding at the end the following: 'The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the factors set forth in paragraphs (1) through (4).'" Paragraphs 1 through 4 provide four statutory factors that the courts are instructed to consider in making "fair use" judgments. These are: purpose and character of use; nature of copyrighted material (whether published or unpublished); the amount and substantiality of the portion used; and effect of the use on the market value of copyrighted work. House Report 102-836, which accompanied H.R. 4412, however, concerned scholars, for it seemed to approve only very limited use of copyrighted unpublished material.

While the House and Senate bills contain similar language, the way the sponsors of these bills interpret them has been quite different. Representative William Hughes (D-NJ) advocates a narrow interpretation and Senator Paul Simon (D-IL) a broad view. Since the House Report seemed to endorse a narrow view of fair use, Senators Paul Simon (D-IL), Patrick Leahy (D-VT), Edward Kennedy (D-MA), Charles Grassley (R-IA), Howard Metzenbaum (D-OH), and Herbert Kohl (D-WI) made a joint floor statement at the time that the Senate passed H.R. 4412 to emphasize their legislative intent. They asserted that "the effect of the decisions has been profound, resulting in chilling uncertainty and serious apprehension in the publishing community regarding fair use of unpublished material." Their statement observed that these two cases had "threatened to establish a virtual per se rule against the fair use of any unpublished materials, such as letters and diaries." Thus these Senators concluded that "it is no exaggeration to say that if the trend were to continue, it could severely damage the ability of journalists and scholars to use unpublished primary materials. This would be a crippling blow to accurate scholarship and reporting." The floor statement made clear that the purpose of H.R. 4412 is to "undo the harm caused by the overly restrictive standards adopted in Salinger and New Era, and to clearly and indisputably reject the view that the unpublished nature of the work triggers a virtual per se ruling against a finding of fair use." The senators specifically noted that H.R. 4412 was necessary to address the limitations of the recent Wright v. Warner Books which "did not explicitly disavow the narrow formulation of the fair use doctrine espoused in Salinger and New Era."

With passage of this legislation, the courts will be instructed to make a carefully reasoned and complete consideration of each of the fair use factors set forth in Section 107 of the Copyright Act.

Access to JFK Assassination Material

On September 30, the House passed S. 3006, a bill which passed the Senate in August and would make available to the public most of the government's secret files relating to the 1963 assassination of President Kennedy. Although the bill states that agencies have two years to identify, organize, and review pertinent records, there is a provision for a one-year extension. Thus, it will probably be three years before all of the estimated one and a half million Congressional, agency, and Presidential pages are available in the National Archives for researchers' use. The final version of the bill did not include a publication by the National Historical Publications and Records Commission of selected materials, a provision of the House bill. Also the House conceded a requirement calling for appointment of a review board by a special panel of federal judges rather than by the President, as called for in the Senate version. The review board will have responsibility for deciding which documents qualify for continued classification.

NEH Chair Issues New Report on Higher Education

On September 24, Lynne Cheney, chair of the National Endowment for the Humanities, issued a report, Telling the Truth. In the introduction she notes that for decades American colleges and universities had as their goal to seek evidence, to evaluate it critically, and to weigh conflicting opinions, all toward the end of trying to tell what is true. However, Cheney sees that view as being frequently derided today. "An increasingly influential view," she states is "that there is no truth to tell: What we think of as truth is merely a cultural construct, serving to empower some and oppress others." In chapters that deal with politics on the campus, attacks on standards, academic freedom, and the university and society, Cheney argues that "the aim of education, as many on our campuses now see it, is no longer truth, but political transformation—of students and society." Critics of the report assert that Cheney fails to provide specific, quantified evidence on the extent of the problem. Complimentary single copies of this report may be secured by writing: Telling the Truth, National Endowment for the Humanities, Washington, DC 20506.

Congress Adjourns with Much Unfinished Business.

The large majority of bills introduced in the 102nd Congress never made it to the floor for a vote and for most there were never any hearings. Despite initial interest in two Freedom of Information Act bills introduced by Patrick Leahy (D-VT), there was no movement on S.1939, which would have tightened the exemptions for continued classification under the national security and law enforcement provisions, or S. 1940, the Electronic Freedom of Information Improvement Act of 1991, which would have facilitated FOIA requests for information held in an electronic format. Legislation that would have brought the Government Printing Office into the electronic age passed the House but not the Senate. Likewise, the legislation that would have amended the 1989 Ethics in Government Act to allow federal employees to receive honoraria for articles and speeches that are unrelated to their work passed the House but not the Senate. The education reform bills that both the House and the Senate had worked on for over a year were never sent to the White House. Following passage of different Senate and House versions of education reform legislation, the House passed a compromise bill but the Senate never voted on the Conference Committee bill. As expected, there was no movement on H.R. 5356 and S. 2893, the National Archives and Records Administration Authorization Act of 1992.