of those works through computer systems, as long as the additional concerns with regard to a digital environment are in place. What that means, and maybe you will call it ducking the issue, is if they are not in place, you can't use the exemption; or, alternatively, if you are a legislator, you can say they are not in place so I am not going to put in an exemption. But the bottom line is still the same thing. We recognize that there are huge dangers to copyright owners. We do believe that education is really important and that the fact that the exemption that was intended to cover then-existing technology is limited to broadcasting and doesn't cover computers is a problem today, so that is how we ended up where we ended up. Mr. BERMAN. You are right in a way. You have got to acknowledge this new world. I don't know how the authors of the law in 1976-and some of them are around and some of them are in the room-they were better than I was if they could have anticipated this world then and made all the decisions they did make then, with all the different tradeoffs that exist now. But what you are articulating is really an interesting kind of a proposal. We might change the legislation but may condition those changes on the implementation of a technology protection system that is not yet available; but then who decides and how is it decided when they are available? Is it after the fact, judicial determinations? Ms. PETERS. One of the things you can consider is whether having that kind of a system in place would encourage more people to develop those types of systems, including educational institutions themselves. Mr. BERMAN. You mean they are sort of drooling over the broadening of exemptions, and maybe they will get serious looking for a way to utilize them? MS. PETERS. Yeah. Mr. BERMAN. Thank you very much, Mr. Chairman. Mr. COBLE. Thank you very much, Mr. Berman. The gentleman from Indiana. Mr. PEASE. Thank you, Mr. Chairman. Ms. Peters, we have spent a lot of time together on international issues here. That is one area-let me back up. I came in late, and if you have addressed this before I got here, I apologize; but I did not hear you address potential international implications of your proposals regarding either treaty or protocol obligations of the United States. Do you see any there? Ms. PETERS. Actually, in this very long report, we did address international implications. We did point out the fact that article 13 of the TRIPS agreement puts limitations on the types of exceptions that you can have, and as well as Berne. However, exemptions that are narrow, that serve purposes like education, are allowed as long as, and it is very important, they don't interfere with the normal exploitation of the work and the markets that copyright owners have. That is why on our recommendation, a proposal that if we were asked to draft it, it would include all of the technological protection measures. I think we were thinking that it would only apply to works that were not originally intended for the instructional mar ket, because if you are in the instructional market, that is your normal licensing market. It is the television broadcasts that aren't really selling to schools and in fact don't really have an interest in licensing to schools, because the licensing may be more expensive than you would ever get out of any payment of any fee. So it would be a very narrow exemption vis-a-vis the commercial exploitation of a work or the normal anticipation of a copyright owner with regard to gaining royalties or licensing fees from that market or that use. Mr. PEASE. Does the construct that you are discussing, you were discussing with Mr. Berman, of legislation that is dependent upon technology that may or may not yet be available, does that concept present challenges in the international obligations of the United States? That concept, to my knowledge, is not yet acknowledged internationally. Ms. PETERS. Countries that want to adhere to the new WIPO treaties must commit to putting in place remedies for acts or devices that basically take away the protection measures that have been put in place by copyright owners. And that is the only obligation, and they are doing that. This is a little bit different. This is basically saying that in order for-our recommendation is in order for a university or an institution to be able to use a work without getting permission or without having a license, it would require that those protections be in place whether they are in place by the copyright owner or the university. So it really is-the treaties and what we are talking about are a little bit different. The treaties have to do with remedies for copyright owners, for people who get around devices and protection schemes. This is basically saying in order to exploit a work, in order to use an exemption, those protections must be in place to make sure that the market that the copyright owner is entitled to is not undercut. Mr. PEASE. Thank you very much. Thank you, Mr. Chairman. Ms. Peters, thank you for being with us. This dialogue will be ongoing, I am sure. MS. PETERS. I would be pleased to assist you in any way that we can. Mr. BERMAN. The 14 other questions I had I think we can pursue in another forum. I think you are right, we have a large- Mr. COBLE. We will move it along. We will be in touch, Ms. Peters. I am now pleased to call the first big panel to the table and I will introduce them as they make their way to the table. Former Congresswoman Patricia Schroeder, who is President and Chief Executive Officer of the Association of American Publishers, the national trade organization of the U.S. Book publishing industry. Ms. Schroeder left Congress undefeated in 1996. She voluntarily left, in other words, after serving in the House of Representatives for 24 years. Mrs. Schroeder graduated from the University of Minnesota and went on to Harvard Law School, one of only 15 women in a class of more than 500 men. And, Pat, I will say to you and Howard and to Ed, if he is still here, someone asked me the other day if I had planned to retire after this session, and my response was "not voluntarily." We can be involuntarily retired in our business. Pat, it is real good to have you with us today. Our next witness is another old friend whom I have not seen in recent days, Fritz Attaway, who is the Senior Vice President for Congressional Affairs and general counsel at the Motion Picture Association of America. Before joining the MPAA, Mr. Attaway served as attorney advisor in the Cable Television Bureau of the Federal Communications Commission. Mr. Attaway received his J.D. degree from the University of Chicago. Our next witness is Laura Gasaway, who is the director of the law library and professor of law at the University of North Carolina; I am proud to claim, my alma matter. Good to have you with us, Ms. Gasaway. Ms. Gasaway is testifying on behalf of the Association of American Universities and has taught courses in intellectual property, cyberspace law, and law librarianship and legal resources. Ms. Gasaway received her B.A. From the Texas Women's University and her J.D. from the University of Houston. Ms. Gasaway, I am uninformed geographically. Where is the Texas Women's University located? Ms. GASAWAY. It is in Denton, Texas. Mr. COBLE. Thank you. Our next witness is Mr. Glen Ochsenreiter who was recently named Vice President of Industry Relations at iCopyright.com. In 1994 Mr. Ochsenreiter became the Vice President of Marketing and Membership Services for the Software Publishers Association, now known as Software and Information Industry Association, and continued in that position through the beginning of this year. Our final witness is a gentleman who I will let my old friend from Kentucky and also former member of this body introduce, Professor Cross. It is real good to have Ron back with us. Ron Mazzoli from Louisiana. Welcome back, Ron. Mr. MAZZOLI. Thank you very much, Mr. Chairman. It is really great to join you in this historic room that saw so many of our discussions. I want to thank our colleague, Howard Berman, for his nice words about Representative Schroeder and myself, because in fact we all worked together on the immigration bill among others in our years here. And I join my friends, Mr. Jenkins and Mr. Pease, whom I have not served with, but to commend them. It is my opportunity today, Mr. Chairman, to introduce my colleague. I am, as you know, with the University of Louisville. I had the great pleasure of working with Representative Schroeder when she came to Louisville as part of the Authors Forum to have a conversation, I would say, in front of several hundred people in Louisville about her book and to talk about many personal incidences we have had over these years. But my real reason for being here is to introduce part of the panel, this distinguished panel, Professor John Cross who is my colleague at the University of Louisville School of Law, now the Louis D. Brandeis School of Law. Professor Cross graduated from Bradley University and got his J.D. From the University of Illinois, came to the University of Louisville in 1987 to the faculty. Prior to that he was practicing law in Minneapolis. His practice was then lot of different business fields, but included intellectual prop in erty. Professor Cross focuses his research and his teaching in intellectual property and in_ authority of Federal courts. In 1991, Mr. Chairman, Professor Cross received a university award for his research, and in recent years has become active in international law issues conducting research at McGill University in Montreal and the University of Toronto at the request of the Canadian Government, and then taught at Johannes Gutenberg University in Maintz, Germany and also as a Fulbright scholar at the University of Turku in Finland. I wanted to have this opportunity, and I appreciate the gentleman from North Carolina's extending it to me, to introduce Dr. Cross to the panel. Mr. COBLE. Thank you, Ron. Good to have you back. Professor Cross, good to have with us. We have written statements from all the witnesses on this panel and I ask unanimous consent to submit them into the record in their entirety. Ladies and gentlemen, if you will, bear with me as I portray my role as grinch and remind you of that ever-present red light as it flashes before you. We will begin with Mrs. Schroeder. STATEMENT OF PATRICIA SCHROEDER, PRESIDENT AND CEO, ASSOCIATION OF AMERICAN PUBLISHERS, INC. Ms. SCHROEDER. Thank you very much, Mr. Chairman. It is indeed an honor to be in front of you and this distinguished panel. It is like a homecoming. But rather than trade stories with the light blinking, I guess I better get on with my work. You so nicely described the Association of American Publishers, I don't think I need to go any further except to say we have educational publishers, trade publishers, scholarly publishers, university presses, nonprofit presses, for-profit presses and all sorts of others. So AAP represents most of the book publishing done in America. Let me go on and say, too, we all want to thank you, Mr. Chairman, and this committee for what you did 8 months ago when the Digital Millennium Copyright Act passed. I think that was the biggest job's bill in this Congress and in the last Congress because both Bob Rubin and Chairman Greenspan say that the products of the mind, products where you add value with the mind, are really America's 21st century jobs. And you did a tremendous amount 8 months ago by working to apply intellectual property protection in the 21st century. Part of the reason I am here is to say I really think what you did in giving the Register of Copyrights the right to take her staff and go through this whole issue about digital distance education was the right thing to do, and I think she and her staff did a fantastic job. It was very thorough and impartial. They toured America. They allowed many of our publishers to come forward and demonstrate many of the new digital education products that are coming out for distance education. We salute the terrific thorough job they did. Our only problem is we don't agree with the conclusion that we need legislation at this time. I think it is too early for legislation until we see what is transpiring. Some of these areas have already been pointed out. You can take the report, and it talks about the fact that we do not have yet the technology for post-access protection. Terribly important, because people don't want to spend money creating these products and then lose them. I asked many of our publishers: Who are creating digital packages, how are you doing this? How are they creating distance education products that supposedly one can't do this without a change in the law? They said, "It is simple. We are either using our own works in the product, or we are using public domain works, licensing works from other people or we are employing fair use in different instances." So everyone stipulates, including the report, there is a very robust, dynamic market in which all sorts of players are focussing all sorts of creativity. So the market isn't dysfunctional. There is also consensus with the study that we don't have the technology to protect products after they are produced. Let me say there are several other things that we would question. That is, while the paper says on pages 152-3 that in 1976 when we wrote the Distance Education Act, most education was the province of nonprofit institutions, it goes on to say-today profit/nonprofit lines are all blurred. Profitmaking institutions are partnering with nonprofits, and there are all sorts of things going on. We totally agree with the report's picture of the change going on in educational institutions today, so our question to you would be: Why would you change section 110(2) just for nonprofit organizations, because what does that mean today? What does that mean in today's world? It was much clearer in 1976, as they point out. So that is another reason we should pull back and let the market work. The issue that is brought up on orphan works, again, we think that is important to deal with; but what we would say is the idea of orphan works cuts across to everything, not just distance learning. It cuts across course packs. It cuts across in all sorts of areas, not just digital and distance education. And finally we salute what the Register has done in clarifying and identifying many of the issues of confusion around the fair use doctrine. And I think with this report out, many people will be able to focus back and use the knowledge and the gravidas of the Register of Copyrights to be able to try and sort some of fair use issues out. Working out these issues informally rather than starting to hammer it out in huge legislative agendas here on the Hill has always been the best way to proceed in such difficult areas of the law. Basically AAP members has only been 8 months since we acted on the last legislation. We agree with the report that the market is robust and the post access technology isn't here yet. And I see the red light is on, and I thank you again, Mr. Chairman, for letting me pack all this in. Mr. COBLE. Thank you, Pat. Good to have you with us. [The prepared statement of Ms. Schroeder follows:] PREPARED STATEMENT OF PATRICIA SCHROEDER, PRESIDENT AND CEO, ASSOCIATION OF AMERICAN PUBLISHERS, INC. Mr. Chairman and Members of the Subcommittee: Thank you for inviting me to appear here today on behalf of the Association of American Publishers (“ĂAP”) to discuss the Register of Copyrights's "Report on |