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For the past two years, I have reviewed the efforts to enact a database bill in the U.S. Congress. In the 105th Congress, all attempts to extend copyright-type protection to collections of data and facts failed. In this review, I will cover the year 2000 developments on the database legislation in the 106th Congress. I will also review funding for the Federal Depository Library Program (FDLP), the anti-circumvention regulations, and the Uniform Computer Information Transactions Act (UCITA). THREE STRIKES FOR THE DATABASE BILL (BUT THEY’LL BE BACK) In my review of the previous Congress, “Copyright and the 105th Congress” ( Legal Information Alert, vol. 18, no. 1, January 1999), I was able to report the good news that the information industry-backed database bill (H.R. 2652) was not enacted into law. The bill was reintroduced in the 106th Congress as H.R. 354. As this is being written, it is December and the 106th Congress is still in session. While anything can happen at the last minute, it seems reasonably certain that H.R. 354 is dead. This represents the third consecutive Congress in which an access-destructive database bill has been defeated. While this marks another victory for AALL and its coalition partners in the library, research, and education communities, it is certain that the battle will continue into the 107th Congress. In a rather acerbic statement issued in October, H.R. 354 sponsor Rep. Howard Coble, R-S.C., said: “… this will now be the third Congress in which legislation protecting databases has failed to become law. Over the past years, the opponents of such legislation have done all they can to prevent legislation from moving forward and maintain the status quo, so they may pirate the work of others due to the current gap in protection. They first claimed there was no need for legislation. Then subsequently, they admitted there was, in fact, a need as long as they could get a carve-out for themselves — how selfishly convenient. This issue will not go away. Now, more than ever, America’s database producers need sufficient protection to ensure the continued investment in developing these information products. Their vulnerability remains as the pirates still sail without fear. Rest assured, Mr. Speaker, I will do everything I can next session to finally pass legislation which benefits database producers and, therefore, benefits American consumers.” ( Congressional Record, Oct. 11, 2000, H 9639-40) Talk about a sore loser. Rep. Coble, librarians are not pirates. Nor is our legislative program motivated by selfish convenience. This statement shows us that we can expect the database battle to continue unabated into the 107th Congress and points to the need for us to be prepared to redouble our efforts. (For a complete account of what transpired in the first session of the 106th Congress, see “1999 Legislative Review: The Battle of the Database Bills,” Legal Information Alert, vol. 19, no. 1, January 2000. For more references, see “Statutory Protection for Databases and Compilations: A Resource List” at http://www.ll.georgetown.edu/ aallwash/rep062000.html.) THE FDLP FUNDING CRISES In May 2000, the House Appropriations Committee recommended a massive cut in the Government Printing Office (GPO) budget (H. Rep. 106-635). This would have ended the public distribution of such core titles as the Federal Register, CFR, and the Daily Congressional Recordto depository libraries. The justification for this was based on the assumption that Internet access renders “dual” print distribution unnecessary. In response to this threat, a broad campaign was aimed at senators, urging them to reject these House budget cuts. The basic arguments were that until the problems of permanent public access and authenticity of electronic versions are resolved, print distribution to depository libraries remains essential. The Senate responded positively to this campaign and restored basic funding levels (S. Rep. 106-229). The difference was resolved by a conference committee essentially splitting the difference (H. Rep. 106-797). Significantly, the conference committee deleted the House language that would have ended dual distribution to depositories. (See “Print No More: U.S. Code, Code of Federal Regulations, and the Federal Register” by Tim Coggins in the October 2000 Virginia Lawyerand available online at http://state.vipnet.org/ vsbar/publications/valawyer/oct00/index.html.) This was a victory for the moment. However, like the database bill, the issue will arise again, and we can expect another round in the 107th Congress. ANTI-CIRCUMVENTION REGULATIONS In a setback for library users, the Librarian of Congress issued a set of regulations that will lead to the negation of fair use in the digital era. Section 1201 of the Digital Millenium Copyright Act directed the Librarian of Congress to undertake a rulemaking procedure to determine whether exceptions to aspects of the anti-circumvention rules are necessary. (See the discussion on the DMCA in “Copyright and the 105th Congress,” Legal Information Alert, vol. 18, no. 1, January 1999.) While the library community proposed the adoption of broad exemptions necessary to ensure the survival of fair use rights, the information content industry argued to the contrary. Unfortunately, the Librarian of Congress took the industry position and issued only two extremely narrow exemptions. (See the AALL Washington Brief, Oct. 27, 2000 for further details.) The delegation of rulemaking to the Librarian of Congress was seen by many as an opportunity to mitigate the harsh effects of the Section 1201 anti-circumvention rules. This having failed, it is now clear that Section 1201 itself needs to be reformed to guarantee that fair-use rights attach in the electronic environment. Look for this as a big issue in the 107th Congress. UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT Turning to the states, brief mention needs to be made of UCITA. In July 1999, the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved UCITA as a uniform law to be sent to the states for individual consideration. This measure will allow software publishers and electronic content publishers to accomplish an end run around any of the progress made in maintaining balance in digital copyright law. UCITA will shift the balance dramatically in favor of the information industry at the expense of consumers, libraries, educational institutions, and other software users by replacing the public policies of the federal law of copyright with the private law of contract. This policy debate will occur state-by-state at the state level. Most state legislators have no knowledge of copyright policy and will be under extreme pressure from well-financed lobbyists to adopt the restrictive licensing rules contained in UCITA. These lobbyists have already been successful in Virginia and Maryland. As AALL’s Mary Alice Baish says: “Having participated firsthand during the legislative processes in Virginia and Maryland — the only two states that have enacted UCITA — I warn you that it is not a fair fight. In our state efforts thus far, we have seen the library community being portrayed unfairly as being against electronic commerce and the new digital economy and for the piracy of software and digital resources. These distortions are very difficult to respond to with legislators.” (See http://www.ll.georgetown.edu/ aallwash/ucitatel.html.) At the same time, UCITA was tabled in a number of other states. Iowa even passed a measure making choice of law provisions pointing to a UCITA jurisdiction voidable. Will you be ready for UCITA when it comes to your state in 2001? For a state-by-state update, see http://www.4cite.org/qikstate.html. Jim Heller gives us a good overview in “Coming Soon to Your State (But Not Ready for Prime Time): UCITA” (5 AALL Spectrum 4, November 2000). For ongoing alerts and discussion on these and other policy-related issues, AALL members are encouraged to join the AALL advocacy listserv. You can do this by sending a message with a blank subject and the following message in the body: subscribe aall-advoc first nameast name. You can also use the subscription form at http://www.ll.georgetown.edu/ aallwash/aalladvocsubscribe.html . Samuel E. Trosow is the Boalt Express Librarian at the Boalt Hall Law Library, University of California at Berkeley, and is a member of the AALL Government Relations Committee. He can be reached at [email protected]

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