Thank you for allowing the Congressional Accountability Project to submit this written testimony to the Committee on Rules and Administration regarding proposed revisions to Title 44 of the U. S. Code.
Citizens need ready access to government information. But many citizens already find it hard to obtain the core documents of our democracy; the Government Printing Office (GPO) Act of 1997 could make this problem worse. Moving GPO to the executive branch could:
We begin with a brief review of how difficult it is for citizens to obtain important federal government documents. Access to Congressional documents is generally poor -- particularly in rural areas. Many citizens find it time-consuming to obtain working drafts of bills, such as committee prints, discussion drafts, or chairman's marks. For example, the bill we discuss today, the Government Printing Office Act of 1997, is not available on your Internet site, Chairman Warner, nor is it available from the websites for the Committee on Rules and Administration, Joint Committee on Printing, GPO Access, or the Library of Congress's Thomas Internet site.(1)
Many other important Congressional materials are difficult to obtain, such as hearing records, voting records, financial disclosure reports, and Congressional Research Service reports. Although the Congressional Record is now available via the Internet through GPO Access and Thomas, distribution of paper copies of the Record has been reduced, even though most citizens do not have easy access to the Internet, and as of last year, less than half of all public libraries were connected to the Internet.
In general, this provides great political advantage to Washington's corporate lobbyists and their clients, who are typically able to obtain key legislative documents quickly, while most Americans cannot easily obtain the information they need to participate in the Congressional legislative process.(2)
Federal court decisions are difficult for many citizens to obtain. They are available in expensive bound volumes from West Publishing, from law libraries, and from high-priced computer assisted legal research services, such as Lexis-Nexis, and Westlaw. West Publishing is the only comprehensive publisher of federal and state court decisions. West claims copyright over the page numbers and corrected text of court decisions in its West court reporters. This is splendid for West, which makes ample profits by selling the text of the law back to Americans, while, not coincidentally, protecting its monopoly with generous campaign contributions to the Democratic Party.(3) But this is bad for Americans who want to read the law. Some U. S. Supreme Court decisions are now available through GPO Access, and some law schools have placed some court decisions on the Internet. That is an improvement but is insufficient; citizens should be able to easily obtain and read the law.
In the executive branch, agencies are increasingly erecting copyright or copyright-like barriers to public use of government documents and materials, in spite of statutory prohibition against the copyright of materials prepared by the government.(4) This loss of government documents from the public domain is alarming.
Furthermore, this hearing takes place five months after the Clinton Administration's effort to win passage of the World Intellectual Property Organization (WIPO) proposed treaty on database contents, which was an assault on public access to government information.(5) That proposed treaty and its domestic implementing legislation would have given a sui generis property right to private companies that assemble government documents into databases. For example, the WIPO treaty would have provided West Publishing with a perpetual property right over its database of federal and state court decisions. Fortunately, in spite of the vigorous efforts of the Clinton Administration to win passage of the WIPO database treaty, it was rejected in December, 1996. But WIPO will "further study" sui generis property rights for database holders, according to Bruce Lehman, U.S. Commissioner of Patents and Trademarks.(6)
Given how difficult it is for many Americans to obtain basic information about the federal government, the public needs legislation to protect and improve its access to federal government information. Your legislation does the opposite -- it could easily make these problems worse.
By making the GPO an executive branch agency, your bill would likely subject the GPO to the rule of the Office of Management and Budget (OMB), and its Office of Information and Regulatory Affairs (OIRA), which, at best, has failed to defend citizens' ability to obtain government documents.
OMB has not enforced the law requiring that agency documents printed by private publishers be sent to depository libraries.(7) OMB's Circular No. A-130 established no enforcement mechanism for Title 44 requirements for distribution of agency publications to the depository libraries other than a cursory reference instructing agencies to do so.
OMB has failed to stop agencies from trying to use copyright or copyright-like restrictions that prevent the public from obtaining government documents. For example, Superintendent of Documents Wayne Kelly testified to this Committee last year that the Bureau of the Census's report "The Hispanic Population of the United States: March 1994" was published by a Washington-based trade association, funded by Phillip Morris, and not distributed to the depository libraries. Copyright is held by the trade association.(8) That OMB has tolerated this copyright of a government publication is unacceptable.
OMB failed to stop the transfer of ownership of the Journal of the National Cancer Institute (JNCI) from the government to Oxford University Press -- USA. As of January 1, 1997, Oxford holds copyright to JNCI, even though government employees will work on the JNCI, and the JNCI is based on research funded by the taxpayers.(9)
Given the OMB's record of repeated failure to support citizen access to government documents, the Congress should not give OMB authority over GPO. OMB might use that authority to hinder the distribution of government documents to the public.
Even worse, by making GPO an executive branch agency, you provide a reason for the legislative and judicial branches to withdraw their printing from GPO. That may have dire consequences for the distribution of important government information to the public via GPO Access and the Depository Library Program. Publications not printed by GPO are less likely to enter the Depository Library Program, and GPO Access. Your draft bill may dramatically undercut GPO Access, which has been a tremendously successful program, and the entire Depository Library Program.
Your draft legislative language protecting public information from copyright and copyright-like restrictions is commendable. But the bill should contain broader protections against incursions by the Clinton Administration, OMB, and commercial database vendors. For example, your bill does not protect against a looming threat: that Clinton Administration will establish through WIPO a sui generis property right for commercial vendors of databases containing government information. Explicit protection against such a sui generis property right should be written into your draft legislation.
Most importantly, your bill should remedy the already enormous problems in the distribution of federal government information. At a minimum, it should mandate, by statute, that the Congress provide to the public, through GPO Access, the texts of working drafts of legislation in the Congress, hearing records, voting records, and Congressional Research Service reports. It should establish a database of federal court decisions, since the founding of our nation, via GPO Access, using a public domain citation system. It should require that federal government electronic information products be included in the Depository Library Program, and placed on the Internet via GPO Access.
Without legislative language to vigorously protect public access to government documents, to ensure that government documents stay in the public domain, and to remedy the serious problems already existing in the distribution of government information, your draft bill is inadequate. It does not sufficiently provide for the citizens who rule this nation.
Thank you for the opportunity to submit this testimony for the record
of this hearing.
1. Electronic text of the Government Printing Office Act of 1997 is available at a website constructed by the University of Kentucky and Western Kentucky University, <http://www.uky.edu/Libraries/jcpbill.html>.
2. Gary Ruskin and Kenneth R. Weinstein, "Congress Is Plugged-In; Now It Must Increase Access to Information." Roll Call, December 9, 1996. "Congress on the Net." Editorial, The Washington Post, September 30, 1996. "'Wiring' Congress." Editorial, The Washington Post, July 22, 1996. James Bournemeier, "Shining a Cyber-Light on Hidden Territory." Los Angeles Times, July 12, 1996. Correspondence to Honorable David Dreier and Speaker Newt Gingrich from Gary Ruskin, James Love et al., July 1, 1996.
3. Viveca Novak and Michael Weisskopf, "The Cheerful Giver." Time, April 21, 1997.
4. Senator John Warner, "The Growing Crisis in Public Access to Public Information." Congressional Record, Senate, February 27, 1997, p. S1730. Robert M. Gellman, "Twin Evils: Government Copyright and Copyright-Like Controls Over Government Information." Syracuse Law Review, 45 Syracuse L. Rev. 999 (1995).
5. James Love, "A Primer on the Proposed WIPO Treaty On Database Extraction Rights That Will Be Considered In December 1996." Consumer Project on Technology, November 10, 1996.
6. Remarks of Bruce Lehman, U. S. Commissioner of Patents and Trademarks, April 7, 1997.
7. Prepared Statement of Michael F. DiMario, Public Printer, U. S. Government Printing Office, before the Committee on Rules and Administration, United States Senate, April 24, 1997.
8. Prepared Statement of Wayne P. Kelley, Superintendent of Documents, U. S. Government Printing Office, Before the Committee on Rules and Administration, United States Senate, June 18, 1996.
9. Remarks of Wayne P. Kelley, Superintendent of Documents, U.S. Government Printing Office, before the Government Documents Roundtable, Federal Documents Task Force, February 15, 1997. Congressional Record, Senate, February 27, 1997, p. S1731. Prepared Statement of Senator John Warner before the Committee on Rules and Administration, United States Senate, April 24, 1997. For other examples, see the Prepared Statement of Michael F. DiMario, Public Printer, U. S. Government Printing Office, before the Committee on Appropriations, United States Senate, Subcommittee on Legislative Branch Appropriations, July 10, 1996.