[Ecommerce] Library comments on FTAA 2d draft text
James Love
james.love@cptech.org
Tue Feb 4 18:43:01 2003
COMMENTS OF
THE AMERICAN LIBRARY ASSOCIATION, ASSOCIATION OF RESEARCH
LIBRARIES, AMERICAN ASSOCIATION OF LAW LIBRARIES, MEDICAL
LIBRARY ASSOCIATION, AND SPECIAL LIBRARIES ASSOCIATION
ON THE
SECOND DRAFT CONSOLIDATED TEXTS OF THE FREE TRADE AREA OF
THE AMERICAS AGREEMENT
The American Library Association, Association of
Research Libraries, American Association of Law Libraries,
Medical Library Association, and Special Libraries
Association jointly submit these comments in response to the
notice and request for public comments on the second draft
consolidated texts of the Free Trade Area of the Americas
Agreement (FTAA), published by the Office of the United
States Trade Representative (USTR) in the Federal Register
on December 27, 2002 (67 Fed. Reg. 79,232). These comments
address, in particular, the FTAA chapters on intellectual
property rights and services.
The American Library Association (ALA), the oldest and
largest library association in the world, is a nonprofit
organization of over 64,000 librarians, library trustees,
and other friends of libraries dedicated to the development,
promotion, and improvement of library and information
services to enhance learning and ensure access to
information for all.
The Association of Research Libraries (ARL) is a
nonprofit organization of 124 research libraries in North
America. ARL programs and services promote equitable access
to and effective use of recorded knowledge in support of
teaching, research, scholarship and community service.
The American Association of Law Libraries (AALL) is a
nonprofit educational organization with 5,000 members
dedicated to providing leadership and advocacy in the field
of legal information and information policy.
The Medical Library Association (MLA) is a nonprofit,
educational organization of more than 1,100 institutions and
3,800 individual members in the health sciences information
field.
The Special Libraries Association (SLA) is an
international professional association serving more than
14,000 members of the information profession, including
special librarians, information managers, brokers, and
consultants.
The ALA, ARL, AALL, MLA and SLA (collectively, “Library
Associations”) seek to ensure that the FTAA will not
interfere with the ability of libraries to support education
and research by providing unrestricted access to information
in any form and by whatever means technology may allow in
coming years.
Specifically, with respect to intellectual property
rights protections, the FTAA must not impair the ability of
the United States government to enable libraries to preserve
intellectual works, share them with one another, and provide
public access to them including through lending and the
Internet. Further, the United States must continue to have
the flexibility to enable libraries to keep pace with
developments in information technology. With respect to
services disciplines, the FTAA must allow local, state and
federal government support for nonprofit and public
libraries to continue through subsidies and other forms of
public assistance, and for this support to evolve as well in
light of such technological developments.
A. The Critical Role of America’s Libraries
America’s libraries provide extraordinarily valuable
services, essential to our nation’s basic social goals and
to the proper functioning of our democratic and open
governmental system. Through our libraries we ensure all
Americans access to the myriad sources and types of
information that convey our collective knowledge, values and
diversity of views.
Our libraries help educate our children and our work
force. Libraries help us maintain a well-informed citizenry
able to perform effectively its responsibilities as an
electorate. They help us meet life’s challenges at work, in
our families, as entrepreneurs and as business people. They
support teaching, research and scholarship, the operation of
our legal system, the provision of medical care, and the
general, efficient functioning of our economy. They help us
fully realize our potential as human beings.
Today, there are over 115,000 libraries nation-wide
serving the American public. Americans on average borrow
more than six books per year. Americans go to school,
public and academic libraries more than twice as often as
they go to the movies. Reference librarians answer more
than 7 million questions each week. As technology has
changed, so have the services of libraries. Today, public
libraries are the number one point of online access for
people without Internet access at home, school or work.
For a society and economy increasingly and
extraordinarily reliant upon efficient and broad access to
information, libraries play a crucial role. Not only do
libraries assemble and organize information for ready
access, they often provide the only practical access to the
vast majority of books and to other information sources that
are no longer available for sale.
Each year, federal, state and local governments
reaffirm through appropriations their appreciation and
support for the role of America’s nonprofit and public
libraries, as do millions of American citizens through
charitable donations.
B. The Need to Protect the Ability of Libraries to Provide
Core Library Services
The principal concern of the Library Associations is to
ensure the continuing ability of America’s libraries to
provide the “core” library services they currently offer to
our nation. The basic mission of libraries is to provide
unrestricted access to information resources. The core
services libraries provide in pursuing this mission are:
· Collection, cataloging (whether manually or computer-
aided) and storage of information sources, including books,
maps, periodicals, films, records, tapes, compact disks,
digital video disks, electronic books, and such other
information sources as may become available;
· Archiving, preserving and providing long-term access to
information, including the use of current and future
technologies to reformat information to facilitate storage
and retrieval;
· Providing access to information through lending and
inter-library loans as well as through reading, listening
and viewing rooms equipped with whatever technology may be
needed to access the information from the information
source; and
· Information retrieval services, whether with the
assistance of professional librarians, through Internet
access to databases, or by such other means as may become
available.
In providing these services, our nation’s libraries
bestow an extraordinary and cost-effective social good.
Yet, maintaining our libraries necessitates a substantial
investment of societal resources. Physical infrastructure
must be maintained and updated to accommodate new
information technologies. Obsolete technologies must be
replaced. Collections must be preserved and augmented.
Each year, America’s libraries expend hundreds of millions
of dollars in fees for databases and electronic library
materials alone.
To meet our nation’s needs, libraries depend on the
rights they enjoy under United States law to access,
preserve and share information, and on the financial and
other forms of government support they receive.
C. The FTAA Must Permit the United States to Protect the
Right of Libraries to Access, Preserve and Provide Public
Access to Information
Through copyright law, the United States protects the
interests of authors and creators and of society as a whole
in intellectual works. United States copyright law in its
origins and as it has evolved has always sought to balance
these interests “to promote the Progress of Science and the
useful Arts” as the Constitution provides. Authors and
creators receive certain monopoly rights (which they can
transfer to publishers) to provide an adequate reward for
their efforts and, thereby, stimulate the creation of
intellectual works. These monopoly rights are circumscribed
in various ways, however, to ensure society can fully
realize the benefits of these works.
Various of the limitations on copyright established
under United States law enable libraries to provide their
core services. Explicit limitations authorize libraries to
preserve and distribute intellectual works and to lend them
to other libraries. In addition to updating these
preservation, distribution and sharing rights to take into
account more recent technological needs and resources, the
Digital Millennium Copyright Act of 1998 limited the
liability to which online service providers might be exposed
due to online copyright infringement. These liability
limitations offer protection to the thousands of libraries
that provide their patrons access to the Internet.
The more broadly stated “Fair Use” doctrine protects
libraries and their patrons from liability for copyright
infringement when reproducing intellectual works to further
purposes such as scholarship, research, teaching, news
reporting and criticism. In addition, the Fair Use doctrine
(codified in the United States Copyright Act) serves an
important “gap-filler” function. For example, as new
technologies give rise to new rights and protections for
intellectual works, corresponding expansion of Fair Use
rights for the public can provide a means to maintain an
appropriate balance.1
It is essential to the societal function of libraries
that the United States has the ability to use its copyright
law to maintain this balancing of private and public rights.
The Library Associations call upon USTR to ensure that the
intellectual property chapter of the FTAA does not restrain
Congress or the courts from giving full force to the rights
of the public, even when asserted against the intellectual
property owner, including through application of the Fair
Use and other doctrines.
The Library Associations look forward to working
closely with USTR as the FTAA negotiations advance, to
ensure the favorable management of specific issues of
critical importance to libraries. Such critical issues
include both preventing overly broad protection for
databases and ensuring the ability to circumvent
technological measures for lawful purposes. Whether and
precisely how such issues may be addressed could have
profound consequences for America’s libraries.
D. The FTAA Must Permit Local, State and Federal
Government Support for Publicly Supported Libraries
Currently, American publicly supported (nonprofit and
public) libraries rely upon government assistance of various
kinds to support their operations. Local and state
governments provide much of this support in such forms as
subsidized or free use of building space, funding of
operations, and tax exemptions. Federal support also plays
an important role. This support includes funding from the
Department of Education, the Institute of Museum and Library
Services and other agencies, tax exemption, nonprofit status
to receive tax-exempt contributions, special postage rates,
and subsidized access to modern telecommunications and
information services, including Internet services, under the
Universal Service Support Mechanism.
The government support that these libraries receive is
essential to their ability to provide their core services.
The forms of support have changed over time in light of
technological and other developments relating to these core
services, and will likely continue to evolve in tandem with
future developments. Local, state and federal governmental
bodies must continue to have the ability to provide support
to enable these libraries to offer their core services to
the public without charge.
The Library Associations call upon the USTR to ensure
that governmental support for core library services does not
become subject to disciplines under the services chapter of
the FTAA. This will require a firm understanding of the
core services provided by publicly supported libraries and
the interrelationships between these services and other
services that may be addressed in the services chapter. The
Library Associations wish to work closely with USTR on these
issues as the negotiations progress, to inform its
evaluation and interpretation of potential text for the
chapter and its assessment of commitments the United States
might offer to make under it.
* * * * *
ALA, ARL, AALL, MLA and SLA call upon USTR to ensure
the FTAA does not undermine the existing ability of
libraries to preserve, share and provide public access to
intellectual works; interfere with government support for
publicly supported libraries; or impede the evolution of
library services and public support as technology advances.
We respectfully request that USTR keep the library community
informed of relevant developments and seek our input as
appropriate to ensure that negotiators are fully informed of
our needs and any potential risks posed by the FTAA. We
appreciate the opportunity to provide these comments and
look forward to working with USTR as negotiations proceed
for the FTAA and for other bilateral, regional and
multilateral agreements relating to intellectual property
rights and services.
_______________________________
1 The effort under consideration to recognize in the
FTAA the value of folklore provides another example. The
Library Associations appreciate the importance and challenge
of protecting this valuable form of intellectual work
without unduly reducing the public’s access to it.
--
James Love, Director, Consumer Project on Technlogy
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040