NCC Advocacy Update, September 1999
Legislation Introduced for a House History
On June 22 John Larson (D-Conn.) introduced H.R. 2303, a bill that directs the librarian of Congress to prepare a history of the House of Representatives. Larson, a former high school history teacher and a newly elected member of the House, introduced this bill because of his disappointment as a new member of Congress with the lack of awareness in the House to its own history. He sees this as a bipartisan initiative and has enlisted 245 cosponsors, including the leadership of both parties.
The bill mandates that "subject to available funding" the librarian consult, commission, or engage the services or participation of eminent historians and current members and former members of the House in preparing the history. Additionally the bill specifies that the history should be illustrated and prepared for the general reader as well as members of Congress and their staffs.
The bill also authorizes the librarian to expand and update the oral history of the House as told by current and former members. In carrying out this section, the bill states that the librarian may enlist the voluntary aid of organizations such as the United States Association of Former Members of Congress or may contract with such organizations for services.
Many in the historical profession are pleased to see a renewed interest in the history of the House of Representatives; however, there is a hope that this move will not preclude efforts to restore the House Historical Office, which was dismantled in 1995. There is also some concern in the historical profession about how this history will be prepared. Just five years ago the Congressional Research Service, which is part of the Library of Congress, prepared a history of the House that was never widely distributed because of its disjointed narrative and its heavy reliance on lists, tables, and charts. Ironically, the House Historical Office was in the process of preparing a history of the House and had completed about one-third of the manuscript at the time the office was disassembled. There is also the question, in light of the Library of Congress's own budgetary priorities and constraints, of how the library would deal with this "unfunded mandate."
Increased Funding for the Wilson Center Recommended
The House Interior Appropriations Bill calls for an increase from $5 .8 million to $7.04 million in fiscal 2000 for the Woodrow Wilson International Center for Scholars. Last year the center came under special scrutiny from Rep. Ralph Regula (R-Ohio), the chair of the Interior Appropriations Committee, who had recommended a major reduction in the center's funding. In January, however, former Rep. Lee Hamilton of Indiana became the new director of the center. Regula noted at the subcommittee markup that the Woodrow Wilson Center had carried out the reforms identified in a management review ordered by Congress and conducted by the National Academy of Public Administration. Regula said the center was now more fully addressing its mandates to serve as an international center for advancing study and as a facilitator for discussions among scholars, public officials, journalists, and business leaders from across the country on long-term issues facing the United States and the world. Additionally, Regula praised Hamilton for the leadership and vision he brought to the center. The Senate Interior Bill includes a budget of $6.04 million for the Wilson Center in 2000.
Judge Orders Hiss Jury Record Made Public
In May, Judge Peter K. Leisure of the United States District Court for the Southern District of New York ordered the release of thousands of pages of 1940s grand jury testimony in the investigation of Alger Hiss. This case, No. M-11-189, focused on the grand jury proceedings that led to Hiss's indictment and later conviction of two counts of perjury arising out of his denials under oath before the grand jury of having passed State Department documents to a communist agent.
In December 1998, Public Citizen filed a petition requesting the release of these papers on behalf of the American Historical Association, the Organization of American Historians, the Society of American Archivists, and the American Society for Legal History. The petition built on a 1997 decision by the Second Circuit of the U.S. Court of Appeals in the case of Bruce Craig v. United States of America (No. 96-6264). In that decision the court denied historian Bruce Craig access to the specific historical records he sought; however, the court made clear that historical interests are appropriate grounds for the release of grand jury material and provided some specific guidance for determining the "special circumstances" under which sensitive grand jury records should be unsealed for historical reasons.
Current law requires that grand jury information remain secret except in certain "special circumstances" where a "particularized need" for the material is demonstrated. In the past, release for historical research has not been regarded as meeting this standard. Thus, Judge Leisure's decision broke new ground by concluding that the petitioners fulfilled their burden to justify disclosure. Leisure's opinion states that, "The court is confident that disclosure will fill in important gaps in the existing historical record, foster further academic and other critical discussion of the far-ranging issues raised by the Hiss case, and lead to additional noteworthy historical works on those subjects, all to the immense benefit of the public. The materials should languish on archival shelves, behind locked doors, no longer."
While this is a groundbreaking decision, the case makes clear that grand jury records should be opened only in very exceptional cases where there is broad public and researcher interest in the issues, where the records are very old, and where there are no outstanding privacy issues.
Amendments Pose Serious Problems for Declassification
Two amendments to the Defense Authorization Act of 2000, one in the House and the other in the Senate, could seriously jeopardize recent progress on declassification. The House provision requires sharp cuts in the amount of money spent on declassification while the Senate provision calls for enormous amounts of additional work re-reviewing documents that have already been declassified.
H.R. 1401, the National Defense Authorization Act for 2000, establishes a ceiling of $20 million on the amount that the Department of Defense can spend on declassification activities. Since the Defense Department estimates that it now spends about $200 million, this would mean a 90 percent cut and make it impossible for the Defense Department to comply with Executive Order 12958, which requires that agencies declassify all but the most sensitive historic records over 25 years old.
The parallel bill in the Senate does not include this provision. However, the Senate bill, S. 1060, calls for a page-bypage re-review of a large percentage of the 600 million pages of documents that have been declassified since Executive Order 12958 went into effect four years ago. There is no similar provision in the House version of this bill. The recent concern about Chinese espionage prompted a frenzy of activity to try to deny access to any documents that may contain information on how to develop nuclear weapons. Unfortunately, many older historical records that lack sensitive weapons information have been caught up in this frantic activity.
The Senate amendment is attached to a 1998 law called the Kyl Amendment, which directed the administration to develop and implement a plan for agencies to incorporate a visual inspection of all 25-year-old permanent records into their declassification process to ensure that no documents containing nuclear weapons design information are opened. However, the plan has already been developed and is currently being implemented, which leaves it unclear as to how this amendment could be inserted into a plan that has already been adopted. Also, since the 1998 plan dealt with records that had not been released to the public, it is unclear how this amendment—which deals with records that have been released to the public—would be implemented. Despite the imprecise language of this amendment, it sends a strong message that efforts to increase openness to older historical records are no longer in favor.
Copyright Office Recommends Legislation to Promote Distance Learning
On May 25 the U.S. Copyright Office issued a "Report on Copyright and Digital Distance Education." Complying with a prov1s10n in the Digital Millennium Copyright Act, Public Law 105-304, the report includes recommendations to Congress about new legislation to promote distance education. The 348-page report summarizes the current status of distance education, describes the practice of licensing copyrighted works on the Internet, and analyzes various technologies involved in digital distance education. The report also provides an account of previous initiatives to address copyright issues involved in digital distance education and then concludes with a lengthy section titled "Should Current Law Be Changed?" The authors stress that the answer to this question is complicated by the rapid developments occurring in both technologies and markets. However, with this in mind, the Copyright Office makes a series of recommendations that focus on the "appropriate treatment under copyright law of materials delivered to students through digital technology in the course of mediated instruction."
The report has four policy recommendations. The first recommendation, and the only one that involves a change in the wording of the law, calls for an updating of the language in section 110, which deals with limitations on the exclusive rights of copyright owners and provides exemptions for certain performances and displays. Specifically the recommendations call for changes to 110(2) so that the term "transmission" is clarified to cover instructional transmissions by digital means to remote locations and at times convenient to students as well as instruction in a physical classroom where all students are present at the same time. Additionally the report recommends expanding the scope of the exemptions to the extent technologically necessary. The report spells out a number of safeguards that need to be included to counteract new risks to copyright owners and urges that the existing standard for eligibility for the exemption be retained so that only non-profit educational institutions are eligible for the exemption in section 110(2).
The second recommendation calls for the affirmation that section 107 of the copyright law, which embodies the "fair use" doctrine, is "technology-neutral." The report contends that no amendment is necessary but suggests that the legislative history affirm that "fair use" applies to activities in the digital environment and provide "some examples of digital uses that are likely to qualify as fair." The report stresses that the lack of established guidelines for any particular type of use does not mean that fair use is inapplicable. "Guidelines are intended as a safe harbor," the report states, "rather than a ceiling on what is permitted."
The third recommendation deals with the topic of licensing. The report claims that many of the current fears and concerns will diminish with time and experience. Thus the report concludes that there should be no changes to the law to deal with "licensing." The report calls for giving the market for licensing of nonexempted uses leeway to evolve and mature, with the proviso that the issue be revisited in a relatively short period of time to reassess "fears" and "risks."
The fourth and final recommendation deals with international considerations and focuses on the relationship of U.S. law to the Berne Convention of the World Intellectual Property Organization. The report concludes that the balance between copyright holders and users that is fundamental to sections 110(2) and 112 of the U.S. copyright law are in harmony with the Berne Convention.
The Report may be seen at the U.S. Copyright Office web site at http://www.loc.gov/copyright/ under "What's New."
Page Putnam Miller is executive director the National Coordinating Committee for the Promotion of History.
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