ACRL News Issue (B) of College & Research Libraries


C&RL News ■ December 2000 / 1035

W a s h i n g t o n  H o t l i n e Lynne E. Bradley

New digital copyright rules are bad 
fo r libraries
On October 26, the Librarian of Congress James 
Billington ruled against library users by allow­
ing only tw o exceptions in the fair use pro­
ceeding involving the 1201 anticircumvention 
provision of the Digital Millennium Copyright 
Act.

The ruling reveals that Billington adopted 
recommendations by Register of Copyrights 
Marybeth Peters to provide exemptions only 
for malfunctions and to determine which sites 
are blocked by filtering software. H ie exem p­
tion related to circumventingfiltering software 
may be useful although problematic.

The library community, members of Con­
gress, the U.S. Department of Commerce, the 
K-12 and higher education communities, and 
many others have argued in the 1201 proceed­
ing and elsewhere that the longstanding prin­
ciple of fair use must continue in the digital 
era. Because of this decision, users of digital 
information will have fewer rights and oppor­
tunities than users of print information. In fact, 
the pay-for-use scenario that librarians have 
feared appears to have now  become a reality 
with this rule.

The affect on library users
The ruling is not some narrow legalism. It has 
real consequences for the American people 
because it is a direct threat to public access to 
information. The rule appears to give in to the 
demands o f the proprietary community: it es­
sentially locks up information and requires li­
brary users to pay for each use.

“The Copyright Office has issued a mis­
guided ruling taking away from students, re­
searchers, teachers, and librarians the long­
standing basic right of fair use’ to our nation’s 
digital resources,” said Nancy Kranich, ALA 
president. “All library users will be impacted.”

The ruling itself
Peters concluded: Pursuant to the mandate of 
17 U.S.C. 1201 (b) and having considered the

Lynne E. Bradley is Office of Government Relations director 
of ALA's Washington Office; e-mail: leb@alawash.org

evidence in the record, the contentions of the 
parties, and the statutory objectives, the Regis­
ter of Copyrights recommends that the Librar­
ian of Congress publish two classes of copy­
righted works w here the register has found 
that non-infringing uses by users of such copy­
righted works are, or are likely to be, adversely 
affected, and the prohibition found in 17 U.S.C., 
1201 (a) should not apply to such users with 
respect to such class of work for the ensuing 
three-year period. The classes of work so iden­
tified are:

1. compilations consisting of lists of Web sites 
blocked by filtering software applications; and

2. literary works, including computer pro­
grams and databases, protected by access con­
trol mechanisms that fail to permit access be­
cause of malfunction, damage, or obsoleteness.

Any exemption of classes of copyrighted 
works published by the librarian will be effective 
only until October 28, 2003. Before the period 
expires, the register will initiate a new rulemaking 
to consider de novo what classes of copyright 
works, if any, should be exempt from 1201 
(a)(1)(A) commencing October 28, 2003.

W hat is the library com m unity 
doing?
Before the decision, ALA, in conjunction with 
the American Association of Law Libraries, the 
Association of Research Libraries, the Medical 
Library Association, and the Special Libraries, 
submitted filings and testimony in the proceed­
ing arguing that there should be exemptions 
from the Copyright Act’s new restrictions against 
accessing copyright works that are protected 
by technological measures. These groups are 
now  considering either requesting a reconsid­
eration of the ruling, asking for new legisla­
tion, or beginning litigation.

For updates, subscribe to ALAWON, the ALA 
Washington Office Electronic Newsline (www. 
ala.org/washoff/alawon). Additional information 
is at the Library of Congress Web site: http:// 
www.loe.gov/copyright/1201/anticirc.html.

At this writing, results of the Presidential 
and Congressional elections are unclear. Fu­
ture columns will address likely issues in the 107th 
Congress and the new administration. ■

mailto:leb@alawash.org
http://www.loe.gov/copyright/1201/anticirc.html


7 036 / C&RL News ■ Decem ber 2000