NCC Advocacy Update, March 1999
Copyright Extension Act Challenged
On January 12 the Berkman Center for Internet and Society at Harvard Law School and the Washington law firm of Hale and Dorr submitted on behalf of the Eldritch Press a complaint in the U.S. District Court for the District of Columbia that calls for the recently passed Copyright Term Extension Act of 1998 (Public Law No. 105-298) to be declared unconstitutional. The new law extends copyright protection for 20 years. The original statute of 1790 granted copyright terms of 14 years, with a 14-year renewal period. In 1831 the initial term was extended to 28 years, but the renewal term remained 14 years . In 1909 the renewal term was also expanded to 28 years, creating a total possible copyright term of 56 years. In 1962 Congress passed a series of laws that in some cases extended copyright for as long as 70 years. Amendments passed in 1976 extended the total term allowable to 75 years. The Copyright Term Extension Act of 1998 extended the total term, in some cases, to as much as 95 years.
Eldritch Press, a nonprofit association established in 1995, is committed to demonstrating the expanded capabilities of electronic books and to making available on the Internet books that are in the public domain. The National Endowment for the Humanities' edSITEment project has recognized the Eldritch Press web site as one of the 20 best humanities sites on the Web. Eldritch Press often posts works as soon as the works enter the public domain and had intended, for example, to post Robert Frost's New Hampshire, which was published in 1923 and would have entered the public domain this year under the older law. The new law, however, would make the posting of this work a criminal offense.
The complaint argues that the U.S. Constitution provides for authors and inventors to have exclusive rights to their respective writings and discoveries for only a "limited" time. Upon the expiration of a copyright, the Constitution envisions the material to be freely copyable and usable by anyone as a means "to promote the Progress of Science and useful Arts. The complaint states that Congress has been continually extending copyright retroactively and has far exceeded the intent of the Constitution of "limited" protection. The extension to protection by another 20 years, the complaint argues, undermines the promotion of the public good.
The Eldritch Press web site, which includes works of American literature as well as French and Russian literature, may be found at http://eldred.ne.mediaone.net. More information on this case can be found at http://cyber.law.harvard.edu/eldredvreno.
Federal Regulations Affecting Oral History
Almost a year ago, the Office for Protection from Research Risks of the National Institutes of Health requested comments regarding possible revisions to its regulations that included an expedited review list for research projects. Although there had been some question as to whether there was ever an intention to include interviews for oral histories under this federal regulation, campus review boards have often been applying these regulations to oral history. Thus, working closely with the Oral History Association, several historical organizations endorsed language proposed by the Oral History Association to clarify that oral history interview projects that include an informed consent procedure in their design and that acquire signed legal release forms from all interviewees would be eligible for the expedited review procedures. In December the Office of Protection of Research Risks of the National Institutes of Health released its revised regulations for expedited review and included the clarifying language on oral histories sought by historians.
Update on Electronic Records Court Case
On December 16 Judge Friedman of the U.S. District Court held a status conference in the case of Public Citizen v. John Carlin (Civil Action No. 96-2840). On October 22, 1997, Judge Friedman ruled in favor of the plaintiffs, who include the American Library Association, the American Historical Association, and the Organization of American Historians, stating that the National Archives' regulations that allow federal agencies to destroy electronic records was null and void. The judge ruled that the National Archives must require that agencies appraise and develop retention and disposition schedules for their electronic records systems that include programmatic material. In April 1998 Judge Friedman noted that the National Archives was continuing to operate under the old regulations that allowed for electronic records to be destroyed if paper copies were made of those records having permanent value, and ordered the National Archives to comply by September 30 with the court's decision. On September 24 the National Archives filed a motion with the court requesting a postponement of the September 30 deadline, which the judge partially granted. Although the government has appealed the lower court's decision with oral arguments in the case presented to the court of appeals in October, the National Archives has agreed to comply with Judge Friedman's decision until the court of appeals rules in this case.
Thus, almost 14 months after the district court's ruling, Judge Friedman sought on December 16, 1998, information about the archives' compliance with the October 22, 1997, court order. Jason Baron, the lawyer for the government, reported at the status conference that the National Archives plans to issue guidelines to agencies on scheduling program and w1ique electronic administrative records in March and will also publish in March a proposed revision of General Records Schedule 20 for administrative records. The National Archives is currently evaluating, in conjunction with the Office of Management and Budget, agency comments to the draft of the bulletin that it plans to issue in March.
Michael Tankersley, the attorney for Public Citizen, noted that the proposed guidance that the National Archives is contemplating would give agencies six months to two-and-a-half years to schedule their electronic program records and expressed dismay at the lengthy time frame. Judge Friedman indicated that he was not pleased with the very slow implementation but that he was not inclined to take any action while awaiting a ruling from the court of appeals. He suggested that if the court of appeals affirms the lower court decision, it may be appropriate for the National Archives to change its plans. Judge Friedman has requested another status report in March. In the meantime, everyone is waiting to see what the court of appeals does in its ruling.
Page Putnam Miller is the director of the National Coordinating Committee for the Promotion of History.
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