NCC Washington Update 2:13, 4/25/96

[mwidener@mail.law.utexas.edu (Mike Widener)]

NCC Washington Update, vol 2, #13, April 25, 1996
 by Page Putnam Miller, Director of the National Coordinating Committee
    for the Promotion of History <pagem@CapAccess.org>

1.  House Passes Omnibus FY'96 Spending Bill
2.  Update on Cuts at the Center of Military History
3.  Appeals Court to Rehear Course Pack Case
4.  Senate Copyright Hearing Set for May 7

1.  House Passes Omnibus FY'96 Spending Bill -- After passing a 24
hour extension to the April 24 expiration date of the Continuing
Resolution, the House passed on April 24, shortly before midnight, an
Omnibus Spending bill for FY'96.  This bill will fund the nine
cabinet departments and dozens of agencies whose appropriations bills
for 1996 had not been passed.  The House restored funding to a number
of education, job training, and environmental programs, including
funding for the Goals 2000 educational initiatives.

For some time the sticking points that had prevented an agreement were
over issues unrelated to the funding level of history related
programs.  The funding for NEH in the Omnibus Spending bill is $110
million, as had been expected, and the funding for historic
preservation programs is the same as in earlier continuing
resolutions.  The controversial provisions introduced by
Representative Ernest Istook (R-OK) -- which called for the addition
of extensive record keeping requirements for nonprofit organizations
that receive federal grants -- were dropped from the bill.

Prior to the midnight April 25 expiration of the 24-hour Continuing
Resolution, the Senate is expected to pass the bill and send it to the
President for his signature, thus averting another partial government
shutdown.

2.  Update on Cuts at the Center of Military History -- As had been
anticipated, high level staff at the Pentagon received a briefing on
April 16 that recommended a 30% cut in the staff of the Center of
Military History.  However it appears that the top leadership of the
Army have not yet signed off on the recommendation.  Those familiar
with the value of this program and the importance of a historical
perspective within the Army are continuing to seek a reconsideration
of the 30% cut.  Indications are that the program will remain in the
Washington area and could move to the vacated commissary building at
Fort McNair.  However this building is being refurbished and it could
take up to two years before the work on it is completed.  The
timetable for the cuts is another item of discussion.  It appears that
50% of the cut may be targeted for completion by October 1, 1997, and
the other 50% by October 1, 1998. But as stated above, no final
decision has been made.

3.  Appeals Court Grants Rehearing of Course Pack Case -- In mid-April
the U.S. Court of Appeals for the Sixth Circuit "effectively
dissolved" the decision that had been handed down on February 12 which
ruled in favor of the Michigan Document Services and against the
plaintiffs -- Princeton University Press, Macmillan, and St. Martin's
Press -- in case No 94-1778.  In that decision the three-judge panel
ruled that the copying of excerpts without author's permission was
allowable in course packs.  The judges stated that although the copy
shop is a commercial enterprise, the copying of course packs for
educational purposes falls under the "fair use" provision of the
copyright act.  This Sixth Circuit Court has said that all 16 judges
would serve as a panel to rehear the case and deliver an opinion.  No
date has been set for the rehearing.

An important factor in this case is that the ruling resulted for
motions for summary judgment, that is the judges reached their
conclusions based on briefs prepared by the plaintiffs and the
defendants but there was no trial in which there were oral arguments
and cross questioning.

The Sixth Circuit Court made no mention in its February 14 ruling of
the Kinko's Case and there is some confusion about the relationship of
Kinko's case to the Michigan Documents Services case.  A Federal
District Court in New York ruled in 1991 that Kinko's violated the
"fair use" provision of the copyright act when it copied chapters for
course packs without securing permission from the publishers.  The
Kinko's case was not appealed because as a part of the final
settlement Kinko's waived its opportunity to appeal the case.
Following the Kinko's case there has evolved a general practice by
which many copy shops do secure permission for all materials to be
included in course packs.  However, since the Kinko's decision
occurred in the Federal District Court for the district of Manhattan,
the ruling strictly applies only to cases in that jurisdiction.  The
Michigan Document Services case had moved from the district court
level to the Sixth Circuit Court of Appeals which has jurisdiction
over the states of Michigan, Ohio, Kentucky, and Tennessee.  Although
the Kinko's and the Michigan Documents Services rulings affect only
persons living in the jurisdiction of the ruling court, it is clear
that much confusion surrounds the course pack issue no matter where
one lives.

4.  Senate Copyright Hearing Set for May 7 -- The Senate Judiciary
Committee plans to hold a hearing on the morning of May 7 for public
witnesses to testify on S.1284, the National Information
Infrastructure Copyright Protection Act, a bill to adapt copyright law
to the digital, networked environment of the information highway.
This hearing had originally been scheduled for March 27 and had to be
postponed.  It is expected that issues of "fair use" will be addressed
in this hearing.

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