Rough Week, legislatively

The other troubling developments last week involved legislative proposals to amend the copyright law.  It is surprising that Congress should be so interested in copyright right now, what with an election coming up.  Nevertheless, as Public Knowledge phrased it on their website, there was a “perfect storm” of [bad] copyright activity last week.

First was the approval, on Sept. 11, in the Senate Judiciary Committee of a bill to (again) increase enforcement of intellectual property rights.  This is mostly a big gift to the major content companies, especially in its provisions to allow the government to prosecute civil suits for IP infringement, with the damages going to the content owners.  The taxpayer gets to foot the bill, in other words, for Hollywood and the recording industry, something that is rather a recurring theme in these bills.  The Enforcement of Intellectual Property Act of 2008 would also increase the number of cases in which civil forfeiture is possible — that means that property implicated in infringement could be seized, even if it belonged to innocent parties and even if it contained private data — and it would create more bureaucracy to oversee enforcement of what is, after all, supposed to be a civil action in which the plaintiffs traditionally have been responsible to enforce their own rights.  This bill, which has incorporated much of the “PRO IP” bill about which I have written before, reverses that tradition and gets the government to do much of the work for private industry.

Also moving forward are the Orphan Works proposals.  While it is still not clear if any definitive action will be taken, it does seem that the direction of amendments to the bill are more and more tending to render it useless for its purported purpose.  As it becomes more freighted with burdensome requirements and limitations, it is increasingly likely that users of orphan works will continue to rely on fair use, just as they must do now.  Thus passage of the bill will not likely accomplish its stated purpose of freeing up the huge amount of cultural material for which there is no rights holder to be found and no market to be harmed.  For the sake of calming some very unrealistic fears, those who want to make culture and scholarship more widely available and usable will be left to make the fair use gamble that currently chills so much teaching and learning.

Finally, the winner for bad idea of the week was the poorly-named “Fair Copyright in Research Works Act,” which could be more aptly called the “Taxpayer Pays Twice Act.”  This bill is intend to reverse the NIH Public Access policy, about which I have written a good deal.  Its intent, then, is to make sure that taxpayer funded research stays behind toll barriers so the those who paid to have the research done must pay again to read the results of their investment.  Accountability is reduced, and nobody wins except the special interests who insist on uncompensated transfers of copyright before they will publish these works, then sometimes charge tens of thousands of dollars for subscriptions.  There is a story about the bill here on Ars Technica, and a summery of comments is available on the Open Access News site here.

Perhaps the best news one can find about the “Fair Copyright” bill is that it is quite unlikely to be adopted this term, as “Library Journal” reports here.  The impact of this bill on scientific and medical research would certainly be regressive, denying research and taxpayers the chance to take advantage of the new opportunities offered by the digital environment.  But it is also bad policy because it would enact into law an unnecessary and potentially damaging limitation on how the government can spend its money.  The bill is structured to make it illegal for the government to place, as a condition of government funding, any provision that would require the transfer or licensing of a copyrighted work.  The potential unintended consequences here are considerable, as are the opportunities to force the government to spend tax money over and over again to gain the use of material paid for by taxpayers in the first place.  Conditions on the grant of money is a major way Congress enacts policy, and no one seems to have examined how many contracts and grants might be invalidated, nor what the impact could be, if this legislation were adopted.  Indeed, some of the impetus behind the bill seems to be a “turf war” over what policies can or should be pursued via appropriations; sponsor John Conyers explicitly referred to the need to defend what he called “sacred turf.”  This bill is an object lesson in the harm that can be done when legislators listen only to the demands of a narrow group of special interests and to their own parochial prerogatives instead of the broader need to serve the public interest.

As with the judicial decision reported earlier, these bills, with the exception of the last one, will not do much direct harm to academia.  They would leave us where we are, while doing most of their damage to the public interest in general.  But the “Fair Copyright in Research Works Act” is both terrible policy and potentially devistating to the progress of scholarly research.  The positive impact of the NIH Public Access policy is beginning to be felt; choking it off at this point would be the height of foolishness.  We seem to be able to relax for the remainder of this Congressional term, if the speculation is correct, but we should remain ready to fight tooth and nail if this poorly-conceived bill ever develops any real legs.