Congress hangs tough on digital recording rights

It's been a tough couple of years for those who like to make digital copies of audio recordings. What started with SCMS copy-restriction schemes in DAT machines has quickly spilled over into current digital formats such as those proposed for DVD-Audio. But a glimmer of hope has shone through the haze.

Last month, Members of Congress Rick Boucher (D-VA) and Tom Campbell (R-CA) introduced copyright legislation that would implement the copyright treaties negotiated at the World Intellectual Property Organization (WIPO) last December.

According to Gary Shapiro, Chairman of the Home Recording Rights Coalition (HRRC), "The WIPO copyright treaties reflect an international consensus on balanced copyright protection in the digital age. In particular, the treaties recognize that enhanced protection can be achieved for intellectual property without putting overly broad restrictions on devices available to consumers. HRRC applauds Reps. Boucher and Campbell for introducing legislation that, in this very important respect, reflects the letter and spirit of the treaties."

Shapiro noted that, at the WIPO Diplomatic Conference, one of the most controversial issues was protection against circumvention of "effective technological measures" used to help protect copyrighted material from possible infringement. The measure adopted in the treaties was supported by a broad alliance of high-tech US companies, content providers, and representatives of users, including the HRRC. It simply requires signatories to provide "adequate legal protection and effective legal remedies" against conduct that would circumvent otherwise effective technologies.

At a House Judiciary subcommittee hearing this Fall, Rep. Boucher elicited authoritative testimony that the WIPO provision may be satisfied by legislative measures addressed to the conduct of individuals, and does not require advance impositions on the capabilities of new computer and consumer electronic devices offered to consumers. The bill introduced today by Reps. Boucher and Campbell, H.R. 3048, is consistent with this approach.

The Boucher/Campbell bill takes additional steps to bring copyright into the digital age. It clarifies that "fair use" and "first sale" (lending rights) protections for consumers apply even though material is distributed by digital means, and that devices do not need proprietor authorization to make ephemeral "copies" in the course of processing a work electronically. It protects consumers from unfair and non-negotiable terms in "shrinkwrap" licenses that extend beyond the scope of copyright protection available under Federal law. And it extends the archival and "distance learning" rights enjoyed by library and educational institutions into the new digital and computer environment.

Shapiro said that H.R. 3048 is good news not only for consumers, but also for anyone who is creative in a high-tech environment. It protects rights without limiting the individual activities of researchers, teachers, archivists, and inventors.

Shapiro noted that the Boucher/Campbell bill is, in many respects, similar to S. 1146, sponsored by Senator John Ashcroft (R-MO), which also has been endorsed by HRRC. He said that, with balanced and progressive legislation now pending in both the House and the Senate, consumers ought to be able to look forward to a constructive approach to copyright legislation in the second session of the 105th Congress.