What Are the Issues in the 1998 Copyright Legislation?
Following is the oral testimony of Professor Peter Jaszi, on behalf of the Digital Future Coalition, before the US Senate Foreign Relations Committee, 10 September 1998. Professor Jaszi teaches at American University, Washington, D.C. Portions of his testimony are highlighted, with reference to comments we have added below Professor Jaszi's text.
As a professor of domestic and international copyright law, I am honored to appear before you today on behalf of the Digital Future Coalition, which represents millions of educators, librarians, high-tech innovators, creators, and electronic information consumers. Our members own and use copyrighted works, and they depend on a legal regime which assures both strong proprietary rights and reasonable opportunities for public access.
We welcome this chance to make three principal points about ratification and implementation of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty:
First, as we have emphasized throughout the 105th Congress, the DFC strongly supports ratification of the WIPO treaties in connection with the enactment of balanced implementing legislation of appropriate scope. Our members would welcome the additional protection abroad which the treaties could bring. But foreign protection should not be secured at the expense of the American public.
Second, neither S. 2037, the Senate passed implementing bill, nor H.R. 2281, adopted in the House, yet strikes the necessary balance in domestic law. The Senate bill does not do enough to preserve fair use, while the House bill includes a host of controversial extraneous provisions, which would overturn the effect of three recent Supreme Court decisions.
Third, and finally, we therefore urge the Committee to put its own stamp on the implementation process by delaying adoption of a resolution of ratification until Congress has passed legislation which maintains copyright's historic balance between owners' rights and users' privileges.
Here, I would note two important statements by the delegates to the 1996 WIPO Diplomatic Conference. In a gesture without precedent in international law, the preambles to the new treaties specifically acknowledge, [quote] "the need to maintain a balance between the rights of [authors, performers, and producers] and the larger public interest, particularly education, research and access to information . . . ." [end quote] Moreover, at the urging of the U.S. delegation, the texts of both treaties are qualified by an "Agreed Statement" making it clear that nations may [quote] "carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws . . . ." [end quote]
These statements mean, for example, that the United States may "carry forward" the centuries-old fair use doctrine, which we take for granted in the analog world. Because of it one may photocopy a newspaper article, quote from a book, or make other limited use of another's work without advance permission. All Americans would benefit if implementing legislation assured the continued vitality of fair use, and of the other limitations and exceptions that have helped to make our national copyright system the most successful in the world.
Unfortunately, S. 2037 would effectively gut fair use by giving copyright owners broad new authority to block what are now lawful acts. Under Section 1201(a)(1) of the bill, it would be a criminal offense for a student to circumvent a technological protection measure to include a map in a multimedia school report. It could become illegal to use the next generation of VCRs to record an over the air broadcast program, a privilege specifically recognized by the Supreme Court in its Betamax decision. It would even be unlawful for your staff to destroy a copyprotected computer virus that had infected your office information system.
In addition, S. 2037 would stifle the development of new technology by potentially banning a host of useful consumer products under the guise of regulating so-called "black boxes." Like Mr. Valenti, our members are quite prepared to outlaw black boxes. But we want to be certain that in doing so Congress does not enact legislation that would outlaw perfectly legitimate devices with substantial noninfringing uses.
H.R. 2281 does the bare minimum necessary to maintain some semblance of balance. It includes a "no mandate" provision making clear that makers of consumer electronics, telecommunications, and computing products are not required to design their devices to respond to any particular technological protection measure. Moreover, the House bill permits encryption research, and provides strong protections for the privacy of information consumers. And it establishes a procedure to ensure public access to categories of copyrighted works if certain findings are made by the Secretary of Commerce. In our view, still more should be done to achieve balance. As demonstrated in an analysis attached to my statement, the Senate could preserve a strong fair use doctrine and still meet our WIPO treaty obligations by dropping Section 1201(a)(1) entirely. If Sec. 1201(a)(1) remains, the exceptions to its prohibitions of circumvention conduct must be broadened. [Discussions are underway, for example, to ensure that legitimate companies can continue to engage in security systems testing.]
Although it moves toward balance in some respects, the House bill unfortunately includes many controversial provisions unrelated to the treaties. Perhaps most troubling, the bill would provide an extraordinary new form of protection for collections of information, hampering the development of electronic commerce and imposing new costs on libraries, universities, and consumers. Its effect could be to award some database proprietors a perpetual exclusive right in simple facts -- subject to few if any meaningful exceptions. No hearings have been held on the proposal in the Senate, and yet the House apparently expects the Senate to accede to this extraordinary power grab benefiting a few wealthy information owners. (Attached to my written testimony is a copy of a memo from the Office of Legal Counsel of the Justice Department, strongly questioning the constitutionality of such database legislation. And with your permission, Mr. Chairman, I would like to include in the record a letter signed by 38 national organizations, spelling out their concerns.) I would emphasize that database legislation is not called for by the WIPO treaties; in fact, the 1996 Diplomatic Conference specifically declined to act on proposals to create new international norms for data protection.
Your Committee can play an important role by making clear that implementing legislation should be limited to just that "implementing" the treaties, while leaving for another day a resolution of the controversial, extraneous matters added by the House without debate.
In short, Mr. Chairman, while we support ratification of the treaties, the DFC continues to have serious reservations about the scope and balance of implementing legislation.