From: iia.ipo@his.com Date: Fri, 15 Jul 94 11:47:54 Subject: INFORMATION POLICY ONLINE-JULY iiiiii iiiiii a INFORMATION POLICY ONLINE ii ii aaa ii ii aaa An Internet Newsletter ii ii aaa published by the ii ii aaaaaaaaa Information Industry Association ii ii aaa 555 New Jersey Ave., N.W. ii ii aaa Washington, DC 20001 ii ii aaa Internet: iiiiii iiiiii aaaaaaa Volume 1, Number 5, July 1994 ----------------------------------------------------------------- ***************************************************************** IN THIS ISSUE: [1] Administration NII Copyright Report Hailed [2] House OKs Telecom Reform [3] High Court Nixes Forebearance [4] NRENaissance: Observations of a Committee Member, by Cynthia H. Braddon, Vice President, Washington Affairs, McGraw-Hill, Inc. [5] Library of Congress Switches Gears on Fund Legislation [6] Dissemination Is to Access as Paperwork Is to . . . FOIA? [7] Health Care Reform and Health Care Data Collection 101 [8] About INFORMATION POLICY ONLINE and the Information Industry Association ***************************************************************** [1] ADMINISTRATION NII COPYRIGHT REPORT HAILED On July 7, the Intellectual Property Working Group of the Administration's Information Infrastructure Task Force released its long-awaited preliminary report on "Intellectual Property and the National Information Infrastructure." With this report, presented to the public and press by Secretary of Commerce Ron Brown and Bruce Lehman, Commissioner of Patents and Trademarks, the Administration is beginning to use its "bully pulpit" to highlight respect for intellectual property rights as a key ingredient in the success of the information superhighway. The report identifies many of the fundamental issues that must be resolved if the National Information Infrastructure (NII) is to achieve its full potential. Without information, the information superhighway will be an expressway to nowhere; and without respect for intellectual property rights, the information resources the American people expect to find will not materialize on the NII. The information industry comends the overall thrust of the report, which appears to recognize that a strong intellectual property foundation for the NII depends on three supports: LAW: The report concludes that no fundamental rewrite of copyright law is warranted, but points out some areas where the Copyright Act needs updating to clarify how its basic framework applies in the new environment. These include redefinitions of "transmission" and "publication," and amendments to the "first sale docrtrine" to clarify that copyright owners retain rights in copyrighted materials distributed over the NII. TECHNOLOGY: The report acknowledges that technological approaches, from encryption to software "envelopes" to information tagging, can facilitate legitimate transactions in copyrighted materials while discouraging piracy and unauthorized use. It calls for prohibitions on "black box" techniques designed to circumvent these protective technologies or to tamper with copyright management information, and refrains from recommending the unilateral imposition of standards by government in this fast-changing field. EDUCATION: The NII cannot succeed without greater public understanding of and respect for intellectual property. Government can do much to encourage responsible use of information networks. The report calls for conferences on fair use and on copyright education, to bring together interested parties to develop greater consensus among copyright owners and users. These could be crucial first steps in a sustained educational effort. The 141-page report contains many specific recommendations. It was released as a "preliminary draft," with comments invited by September 7. Public hearings will also be held in Washington, Chicago and Los Angeles to receive reactions. The timetable calls for issuance of a final report by year's end, with a legislative agenda to be undertaken next year. ***************************************************************** [2] HOUSE OK's TELECOM REFORM After weeks of apparent stalemate, the House of Representatives gave swift and overwhelming approval on June 27 to two bills to make sweeping changes in regulation of telecommunications services. H.R. 3626, sponsored by two of the most powerful House committee chairs, Reps. Jack Brooks (D-TX) of the Judiciary Committee and John Dingell (D-MI) of the Energy and Commerce Committee, would , among other things, specify the conditions under which regional Bell operating companies (RBOCs) may engage in electronic publishing ventures. One of the bill's most significant pro-competitive safeguards is the requirement that RBOC electronic publishing activities be conducted either through joint ventures or through fully separated subsidiaries, in order to lessen the danger that a local telephone company will use its monopoly status to subsidize its information services activities or discriminate against competitors. The House-passed version of H.R. 3626 includes an expanded definition of "electronic publishing" that includes entertainment services, legal information, and archival material, but excludes interactive games, cable television programming, or full motion video on demand. A last-minute addition to H.R. 3626 (section 206) also requires the FCC to revisit its decision not to require RBOCs to conduct other information services activities through separate subsidiaries. H.R. 3626 also contains provisions to require fairer rules of access to customer proprietary network information generated by use of telephone service. The other bill passed by the House, H.R. 3636, was sponsored by Reps. Ed Markey (D-MA) and Jack Fields (R-TX). It would open the local telephone service market to competition, striking down state laws or regulations that confer monopoly status on one service provider. With the House action, the scene now shifts to the Senate, where S. 1822, introduced by Sen. Ernest Hollings (D-SC), is pending before the Commerce Committee. S. 1822 covers the subject matter addressed by both H.R. 3626 and H.R. 3636. The information industry supports S. 1822 as the best current legislative proposal on issues such safeguards for competition in information services, and sound rules on access to and use of customer proprietary network information. However, time is running short for action before the anticipated October adjournment of the 103rd Congress, and a mark-up of S. 1822 is expected during July. ***************************************************************** [3] HIGH COURT NIXES FORBEARANCE In a decision handed down June 17, the U. S. Supreme Court ruled that the Federal Communications Commission lacked authority to waive the requirement that non-dominant common carriers file tariffs for public disclosure of their service offerings. The decision upheld lower court rulings that disapproved the FCC policy requiring only AT&T to file tariffs. The Supreme Court decision does not resolve whether the FCC has authority to establish looser requirements for tariffs filed by non-dominant carriers. The ruling is likely to increase support for S. 1822, telecommunications reform legislation which specifically authorizes the FCC to exercise forbearance in setting tariff requirements. ***************************************************************** [4] NRENAISSANCE: OBSERVATIONS OF A COMMITTEE MEMBER by Cynthia H. Braddon, Vice President, Washington Affairs, McGraw-Hill, Inc. Last Spring, I was asked by the National Research Council's Computer Science and Telecommunications Board to serve as the sole representative for information providers on a 16-member study group. Our mission was to come to a consensus and provide a report to the National Science Foundation (NSF) and the Administration, which would present a five-year vision and map for the National Research and Education Network (NREN). We were to advise the government on its appropriate role and how best it could fill the needs of broader -- but still mostly academic -- communities. Within months, we named ourselves the NRENAISSANCE Committee and began acquiring presentations and comments from interested parties. A number of things became clear early on: 1) It is lonely and frustrating to be the only information provider in a room filled with very smart people, most of whom believe strongly that information must be free, or at least very, very cheap; 2) The constituencies represented on the panel need access to information electronically, but face many costly obstacles; and 3) The world was not going to stand still while we studied and debated the issues for a year. The Administration began discussing the National Information Infrastructure (NII); mega-mergers and alliances were being formed as we were speaking. But finally, the National Research Council has published our 300 page report, REALIZING THE INFORMATION FUTURE. There are numerous recommendations and substantive discussion meant to move the debate forward. Just to highlight a few of the particularly interesting ones: - The government should play the role of facilitator, overseer and arbiter of last resort. - An Open Data Network which is open to users, service providers and network providers and will change with time, is essential. In fact, the report provides a significant contribution to the debate in this area and is worth review. - Temporary and targeted subsidies for education and research institutions should be considered when needed. - The government should expand important areas of network research, including security and information management applications. The report provides a detailed discussion about the benefits of linking America s educational institutions (K-12 through life-long learning), libraries and research communities. It starkly explains the obstacles which must be overcome -- with big dollars, equipment and training -- to get from here to there. Did you know that, for example, in too many elementary schools, the only telephone is in the administration/principal s office? We devote a chapter to discussing the very principles at the heart of policy on the NII -- the responsible use of information on the network by users and providers. We address the need for further work in the areas of network and data security, First Amendment, intellectual property management and privacy. In sum, I am proud to have been part of this effort and the results. The report does not provide all the answers, but should prove to be a significant contribution to the debate. I also feel fortunate to have had the opportunity to be sequestered for weeks with some very important constituencies. In the end, I surely better understand their needs and perceptions and, I hope, they benefited from better understanding ours. I point to one final aspect of our report: the user wants access to information as it is needed or wanted. The user does not care how it gets from there to here. The user just wants it. ***************************************************************** [5] LIBRARY OF CONGRESS SWITCHES GEARS ON FUND LEGISLATION Over the past several years, the Library of Congress has been pushing hard for legislation to authorize it to offer revenue-generating information products and services. Throughout the same period, the information industry has been pushing back. This spring, LC has changed course. There is even a tantalizing prospect that industry and library groups may join forces in support of the latest LC proposal. The story begins with an audit by the General Accounting Office that questioned the legal basis for some current LC activities that questioned the legal basis for some current LC activities that are not funded through appropriations. These activities range from photo duplication services and gift shop sales to the FEDLINK program (under which LC is the conduit for procurement of information products by a broad range of federal agencies) and LC research projects undertaken for other government agencies. Legislation was needed to satisfy GAO s concerns, but LC used this as a springboard to propose a sweeping expansion of its revenue-generating activities. In industry s view, the proposed Library of Congress Fund Act lacked adequate safeguards against improper LC competition with existing private sector information services. Industry was also concerned about protecting the copyright interests of publishers whose works, deposited with LC, could be used as the basis for revenue generating information services. Groups representing librarians also questioned the legislation, fearing that traditionally free library services would be swept into the fee-producing category. Although the Senate Rules Committee approved a version of the LC fund bill a year ago, Congress has taken no further action. LC s new initiative to break the impasse avoids many of the hot-button issues that plagued the LC fund bill. The draft Library of Congress Financial Reform Act focuses on the current activities questioned by GAO. It sets up a revolving fund for receipts from seven specified activities, but does not authorize any new fee-generating services. It also authorizes LC to recover its distribution costs for cataloging products and services offered to libraries. Title III of the draft legislation does contain a new wrinkle of concern to industry: a fire sale provision, allowing LC to sell books, periodicals, phonorecords and other materials that the Librarian of Congress determines to be excess to the collections, and apply the proceeds to acquisition activities. Most of these sales would be innocuous, and the draft bill contains some safeguards, but concerns remain about fire sales of materials deposited in connection with copyright registration, especially electronic publications. The new LC proposal has not yet been formally introduced in Congress, but so far the draft has received favorable reviews from industry and library groups alike. If it stays on course, it could put several years of contentious debate to rest. ***************************************************************** [6] DISSEMINATION IS TO ACCESS AS PAPERWORK IS TO... FOIA? Legislation to define the role of federal agencies in information dissemination took one step back during June, when the Senate Governmental Affairs Committee failed to act on a compromise draft bill to reauthorize the Paperwork Reduction Act (PRA). But a closely related bill took one step forward, as Sen. Patrick Leahy (D-Vt.) unveiled a new version of his legislation applying the Freedom of Information Act (FOIA) to electronic federal records. The PRA compromise came apart over issues unrelated to government information policy. Plans to offer the compromise at a committee mark-up session June 16 were abandoned. One possible scenario now is that Sen. Sam Nunn (D-Ga.) and his allies, whose PRA reauthorization bill (S. 560) commands wide support, will offer their version as an amendment to other legislation on the Senate floor. The Nunn bill s information dissemination policy provisions are weaker than those in the compromise version: for instance, the compromise would forbid agency restrictions on reuse or redissemination of government information (unless specifically authorized by statute), while S. 560 calls for such restrictions to be avoided to the extent appropriate and practical. Meanwhile, the new version of Leahy s electronic FOIA legislation (S. 1782) underscores the difficulty of continuing to draw distinctions between passive access to government information and active dissemination efforts by government agencies. FOIA has always been viewed as an access statute, but the Leahy draft substitute also requires greatly expanded electronic dissemination efforts by federal agencies. Agencies would have to make available to the public by computer telecommunications ... or other electronic means, ten categories of information, ranging from material now published in the Federal Register to administrative manuals, indexes of decisions and policy statements, and all records whose disclosure has been repeatedly requested under FOIA. The new draft would also allow an agency to finance this activity by retaining half the fees it collects from requesters under FOIA, so long as it is in substantial compliance with statutory time limits for responding to requests. On traditional access issues, the new draft is clearly positive and should help information companies obtain prompt access to federal information in electronic form. However, the scope of its dissemination requirements could raise questions about its impact on private sector information products and services based on government information. The Senate Judiciary Subcommittee on Technology and the Law, which Leahy chairs, is expected to consider the new version of S. 1782 in the near future. ***************************************************************** [7] HEALTH CARE REFORM AND HEALTH CARE DATA COLLECTION 101 The Senate Committee on Labor and Human Resources has completed action on health care reform legislation. Of interest to the information industry is the Wofford- Dodd amendment which includes a comprehensive section on health care collection and dissemination and a section on privacy protection for protected health care information. The bill establishes a Health Care Data Network and requires health care providers and health care plans to standardize certain health care transactions and data and transmit the data to the network. The Health Care Data Network consists of indexing systems, clearinghouses and health information protection organizations. The clearinghouses are public or private entities responsible for standardizing data or storing private entities and making available to other entities standard data. The indexing systems provide standard indexes to all information contained in the clearinghouses so that the information is interoperable. The health information protection organizations (HIPO) take the standardized health care information and process it into non-identifiable health information. They satisfy all requests for non-identifiable health information. The certification process for the indexing systems, clearinghouses and the HIPOs is done by the National Health Care Board, which is also created by the legislation. The bill sets out some of the standards for accessing data, both protected and non-identifiable, and assesses penalties for violations of those rules. In some instances the standards will be established by the National Health Care Board. The bill also establishes a Health Care Data Advisory Panel which will provide assistance to the Board in complying with the requirements of data collection and dissemination. The second part of the health care information section establishes guidelines for dissemination and protection of personally identifiable health care information. This section is similar, although not identical, to legislation, H.R. 4077, introduced by Congressman Condit earlier this year. This part of the health care information section outlines penalties for the wrongful disclosure and misuse of protected health information. Protected health information is defined as any information, whether oral or recorded in any form or medium that is created or received by a participant in the provision of health care or by employers when they are screening or testing employees. It further defines the information to be protected if it identifies an individual or there is a reasonable basis to believe that the information can be used to identify an individual. This information includes the past, present, or future physical or mental health or condition of an enrollee; information about the provision of care to an enrollee; or demographic data collected from the enrollee. Protected health information can be disclosed under specific circumstances including: if an enrollee authorizes it in written form; for provision of care; for payment of claims; to a public health organization for disease or injury reporting, public health surveillance or public health investigation; for emergencies; for law enforcement; and for health research purposes. Health care reform legislation seems to have gotten a jump start in recent weeks and the outlook around Washington now seems somewhat more optimistic that some bill will be adopted this year. ***************************************************************** [8] ABOUT INFORMATION POLICY ONLINE AND THE INFORMATION INDUSTRY ASSOCIATION ABOUT "INFORMATION POLICY ONLINE" INFORMATION POLICY ONLINE (IIA-IPO) is an online newsletter published on the Internet by the Information Industry Association and distributed free of charge. The purpose of the Newsletter is to inform readers of events and activities affecting information policy, and to present an information industry viewpoint concerning these events and activities. IIA-IPO is copyrighted by the Information Industry Association; however, IIA-IPO is distributed without charge and may be freely reproduced and redistributed. Please acknowledge IIA-IPO as the source of the information when quoting or redistributing the newsletter. TO SUBSCRIBE TO IIA-IPO: Send the message "subscribe" to . ARCHIVES. IIA-IPO is archived. To get archived copies, ftp to with the message "GET FILENAME." Individual monthly issues are archived with file names "iia0394.zip" for March 1994, "iia0494.zip" for April 1994, etc. ----------------------------------------------------------------- ABOUT THE INFORMATION INDUSTRY ASSOCIATION THE INFORMATION INDUSTRY ASSOCIATION represents leading organizations involved in the generation, processing, distribution and use of information. IIA is home base for businesses offering the innovative products and services that make up the information marketplace. IIA fosters a responsive and responsible forum for promoting a competitive and growing information marketplace. ----------------------------------------------------------------- President of the IIA: Kenneth B. Allen Editor of Information Policy Online: Steven J. Metalitz, IIA Vice President and General Counsel For messages to IIA-IPO: Voice: (202) 639-8262. Fax: (202)638-4403. ----------------------------------------------------------------- *****************************************************************