NCC Advocacy Update

NCC Advocacy Update, October 1992

Page Putnam Miller, October 1992

Rush of Legislative Activity before Adjournment

As we go to press, Congress is in the midst of trying to schedule meetings for conference committees and floor votes on a number of pending bills, several of which are of special interest to historians. Additionally, Congress has yet to pass any of the thirteen FY'93 appropriations bills.

Fair Use of Unpublished Copyrighted Material

Just before the August recess, the House finally passed H.R. 4412, a bill to clarify the "fair use" of unpublished copyrighted material. The Senate bill, S. 1035, passed almost one year ago. Now the bills must be reconciled. The language of the two bills is similar. Each of the bills is one long sentence in length. The legislation, moreover, has no budgetary impact. Yet the House and Senate Committees in their respective reports have interpreted the solution to the lack of clarity in the use of unpublished material in significantly different ways. Both bills do respond to rulings of the U.S. Second Circuit Court that have made it legally dangerous to quote even small amounts of unpublished material without obtaining authorized consent for use. Yet the Senate bill stresses the need to strike a proper balance between encouraging the broad dissemination of ideas and safeguarding the rights to first publication and privacy. The stated intent of the House bill, however, is to ensure that there is no per se rule barring claims of fair use of unpublished material and to leave to the courts the task of determining on a case-by-case basis the affirmative defense of fair use of unpublished works.

House Report 102-836 states: "The purpose of this legislation is thus to direct the courts to give proper weight to all factors: it is not the committee's intention to direct the courts how much weight to give to any factor in a particular case." The four statutory factors that the courts are instructed to consider are: purpose and character of use; nature of copyrighted material (whether published or unpublished); the amount and substantiality of the portion used; and effect of the use on the market value of copyrighted work. What is troubling to scholars is the tone of the House Report that would allow in some cases, but would not encourage, the "fair use" of unpublished material. In discussing any evaluation of a claim of fair use of unpublished material, House Report 102-836 quotes from the 1985 Supreme Court case of Harper and Row, Publishers, Inc., v. National Enterprises to make the point that the unpublished nature of the work is "a key, though not necessarily determinative factor tending to negate a defense of fair use." Legislative aides indicate that an informal working group, and not a formal conference committee, will attempt to reconcile the two bills.

Public Access to JFK Assassination Records

Legislation that would within two years make available to the public most of the government's secret files relating to the 1963 assassination of President Kennedy has passed both houses, but each contains somewhat different provisions. Both call for the creation of a collection of records to be known as the President John F. Kennedy Assassination Records Collection; however, the Senate bill, S. 3006, specifies that in establishing the Collection "the Archivist shall ensure the physical integrity and original provenance of all records." The Senate bill also uses more precise language than the House bill, H.R. 454, regarding the definition of assassination records and the development of finding aids. On the other hand, the House bill, unlike the Senate bill, includes a provision for the National Historical Publications and Records Commission to prepare a publication of selected materials from the Collection that would be of broad public interest.

In addition to providing access to the JFK assassination records, this legislation is important for reenforcing the law passed last year on the State Department's declassification program that established standards stricter than those currently used in Executive Order 12356 for the continued withholding of information. Both the House and Senate bills require a showing of "clear and convincing evidence" to postpone the opening of any material and both assert the need to balance the public's need to know with national security concerns. A conference committee will be meeting before adjournment to work out differences between the two bills.

The Government Printing Office (GPO) and Electronic Information

Prior to the August recess the Senate Committee on Rules and Administration and Committee on House Administration held a joint hearing on S. 2813, the GPO Gateway to Government Act, and H.R. 2772, the GPO WINDO Act. The purpose of these similar bills is to establish within the Government Printing Office a single point of on-line public access to a wide range of federal databases containing public information stored electronically. Although the federal government currently produces thousands of databases and documents that are stored electronically, most researchers find it a daunting task to locate the material, establish accounts, and access this information. The databases and documents offered through the GPO would initially consist of a group of core databases, which would expand as the system matures. Some databases that would be candidates for early inclusion would be the Economic Bulletin Board, the Department of State Dispatch, U.S. Supreme Court opinions, and Census's CENDATA. Under this legislation, GPO would have the authority to develop a friendly user interface, with menus, indexes, on-line help, and other aids to make it easier for users to locate databases of interest. A key component of this legislation involves the depository libraries, located in every Congressional district, where the public may access GPO databases without charge. Senator Albert Gore (D-TN), the sponsor of the Senate bill, affirmed that the time had come for the Government Printing Office to adjust to the dramatic changes in technology and to expand its efforts to disseminate government information in electronic form using computer networks.

Much of the cost of this legislation would be offset by fees. S. 2813 states that the Superintendent of Documents, under the direction of the Public Printer, may charge "reasonable" fees that should approximate incremental costs to the agencies and GPO of dissemination of the databases. This bill also sets the authorization level for FY'93 at $3 million with an increase to $10 million in FY'94.

The immediate past president of the American Library Association, Patricia Glass Schuman, testified at the hearing that new technology provides unprecedented opportunities to increase public access to government information, but without an electronic gateway like the one proposed in the legislation, the public will find some government information too expensive or difficult to access and use. A representative of the Information Industry Association, Steve Metalitz, spoke in opposition to the bills, arguing that they would unnecessarily duplicate information products and services already available from other sources, public and private. Senate committee Chair Wendell Ford (D-KY) concluded the standing-room-only hearing by stating his intention to move the legislation in this session of Congress.

Department of Defense Legacy Project

The Legacy Management Resource Program created by the Defense Appropriations Act for 1991 has the mandate to "determine how to better integrate the conservation of irreplaceable biological, cultural, and geophysical resources with the dynamic requirements of military missions." The legislation provides detailed directions for establishing a number of program initiatives to provide for the systematic coordinated management of all natural and cultural resources under the Department of Defense's jurisdiction. As a part of the stated purposes of the Legacy program, the ninth purpose of the legislation requires that the Department of Defense "establish and coordinate by Fiscal Year 1993 with other federal departments, agencies, and entities a project to inventory, protect, and conserve the physical and literary property and relics of the Department of Defense in the United States and overseas, connected with the origins and development of the Cold War, which are not already being carried out by other capable institutions or programs."

In response to the legislation, the Department of Defense initiated internal reviews of its existing program for natural and cultural resources management, began to plan for the identification and preservation of Cold War-related materials, and undertook demonstration projects exploring innovative approaches to the management of such resources. At the same time, the Department of Defense reached outside its ranks to seek advice from other agencies and nongovernmental experts to help identify strengths and weaknesses in existing programs and define opportunities for improvement. Crucial to an understanding of the Cold War and to the preservation of Cold War resources is the preservation of and access to government records that document federal policy and activities. A preliminary December 1991 report on the Legacy Cold War Study identified as one of the anticipated difficulties of the project the inaccessibility of classified information. Thus, the Legacy project initiated an interagency partnership with the National Archives and Records Administration to sponsor jointly a conference this fall to consider issues of records declassification. The purpose of the conference will be to address the unique problems in declassifying records of the Cold War era and will include discussion of the process of declassification as well as means for establishing priorities for resource allocation for timely declassification review.

In addition to the declassification conference, the Legacy project plans to study federal policies and practices for preserving historically significant records of defense contracting companies. Many records crucial to telling important chapters of the Cold War story have been lost or are stored in private warehouses, inaccessible to either the companies, federal employees, or the general public.