ferentiate among the types of documents and would grant litigants access not only to publicly available information but also to confidential communications between the Service and congressional offices.

The second concern arises from the fact that, in previous instances in which CRS has been involved in litigation or agency proceedings, the judicial or agency decision has emphasized that CRS performs a legislative function and that its staff functions as an adjunct of Member and committee staff.70 With wider dissemination of CRS products to the general public, this longstanding perception of the Service and the nature of its communications to the Congress could be altered, eventually putting at risk speech or debate protection for the Service's confidential work. In other words, extensive involvement by CRS in the direct public information function could lead courts and administrative agencies to reconsider their perception of CRS as playing a significant and unique support role in the legislative process, and thus some day might hamper a claim of immunity even in an instance in which CRS was fulfilling its legislative function.

3. There is some risk of assertion of copyright infringement if CRS materials are made available on-line to members of the general public.

CRS may incorporate preexisting material in its written responses to congressional requests. Although such material is often from public domain sources,71 in certain instances the material may be from copyrighted sources. 72 To the extent that the material is copyrighted, CRS either: obtains permission for the use; 73 considers its information-gathering function protected by the speech or debate clause; 74 or believes that the intended use falls under the "fair use" doctrine of the Copyright Act. 75

United States copyright protection is not available for U.S. Government works.76 Those portions of a public document authored by the U.S. Government are in the "public domain"-freely and widely available to the public without restrictions placed on their dissemination. However, the government's inclusion of copyrighted material in a government publication does not thrust that material into the public domain or impair the rights of the copyright owner.77

bill. Of course, because of the confidential relationship of CRS with its congressional clients, none of the specific analysis of the draft bill included in that memorandum would appear in, or be reflected, in the CRS Report.

70 See Webster v. Sun Oil, 731 F.2d 1 (D.C.Cir. 1984) and 790 F.2d 157 (D.C.Cir. 1986) (communications to CRS analyst are within scope of common law privilege for communications to a legislative body); Smith v. IRS, No. 3778-89 (Tax Ct. 1990) (protecting from compulsory process background materials used by CRS staff in preparing reports and memoranda for Members); In re Exxon Corporation, 95 F.T.C. 919 (1980) (FTC subpoena for CRS documents barred by speech or debate immunity and separation of powers doctrine; CRS performs an "essentially legislative function"). Cf. Browning v. Clerk, U.S. House of Representatives, 789 F.2d 923, 929 (D.C.Cir.) (personnel actions held to be protected by speech or debate immunity if the "employee's duties were directly related to the due functioning of the legislative process”) (emphasis in the original), cert. denied, 479 U.S. 996 (1986).

71 For example, prior CRS Reports; other government publications.

72 CRS's uses of copyrighted material are appropriately credited.

73 Although CRS obtains permission to reproduce certain copyrighted works, the permissions are generally based on legislative use and do not explicitly cover electronic dissemination.

74 U.S. Const., art. 1, §6, cl. 1. Speech or debate clause protection extends to activities within the sphere of legitimate legislative activity (generally considered to be matters that are an integral part of the deliberative process by which members participate in legislative proceedings) rather than activities that are representational or political in nature. When CRS performs a legislative function, the speech or debate clause shield provides protection from copyright infringement claims. See CRS's purposes and duties as set forth in 2 U.S.C. § 166(d); see also Webster v. Sun Oil, supra n.27.

75 Copyright Act of 1976, Act October 19, 1976, Pub. L. No. 94-553 (codified as amended at 17 U.S.C. §§ 101 et seq.). Fair use is a judicial doctrine codified for the first time in the Copyright Act. See 17 U.S.C. § 107. Although the Act does not define "fair use," the Act lists four illustrative factors, based on prior case law, to be considered when determining whether a use made of a work is a fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

76 17 U.S.C. § 105. Sec. 101 defines a "work of the United States Government" as "a work prepared by an officer or employee of the United States Government as part of that person's official duties." While works of the U.S. Government are not protected under U.S. copyright laws, protection may be available under the statutes of certain other countries.

77 The legislative history of the Copyright Act contains the following statement:

The committee here observes: (1) there is nothing in section 105 that would relieve the Government of its obligation to secure permission in order to publish a copyrighted work; and (2) publication or other use by the Government of a private work would not affect its copyright protection in any way. (H.R. Rep. No. 1476, 94th Cong., 2d Sess. 60 (1976).)

The exclusive rights 78 of the copyright owner are qualified or limited by enumerated exceptions.79 Unless excused by a statutory exception, the unauthorized use of a copyrighted work is considered an infringement. Fair use is one of the limitations on the copyright owner's exclusive rights and may be invoked as an affirmative defense to a claim of copyright infringement.8 80

The copyright statute does not expressly include congressional use of copyrighted works as a fair use. However, both the House and Senate Reports on the Copyright Act of 1976 include the "reproduction of a work in legislative or judicial proceedings or reports" among examples of fair use.81 The legislative history also contains an observation that publication of copyrighted material in Congressional documents would constitute fair use "[w]here the length of the work or excerpt published and the number of copies authorized are reasonable under the circumstances, and the work itself is directly relevant to a matter of legitimate legislative ***"82]

concern

In an infringement action, a court might regard the publication of copyrighted material in a Congressional document for legitimate legislative purposes as a "fair use." If, however, the use is outside of such legislative purposes, it is possible that a traditional fair use analysis might result in liability for copyright infringement. Wider dissemination outside the confine of Congress would further complicate the "fair use" question. While courts appear to be applying the same fair use analysis in infringement actions involving the electronic environment as in more traditional environments, the application of fair use in the electronic environment is still developing.

The copyright laws do not contain an exemption from copyright infringement for unauthorized use of copyrighted materials by the U.S. Government. Subsection 1498(b) of Title 28 of the U.S. Code provides that the exclusive remedy of a copyright owner for copyright infringement by the United States is an action against the United States in the U.S. Court of Federal Claims "for the recovery of ** reasonable and entire compensation * * including the minimum statutory damages **"83 Speech or debate clause immunity is not waived under § 1498(b); however, activities outside of the legislative sphere would not be shielded from a copyright infringement action.84 The one case interpreting § 1498(b) narrowly

*

78 17 U.S.C. §§ 106, 106A.

79 17 U.S.C. §§ 107-120.

80 A bright-line approach to fair use is difficult if not impossible; courts examine the fair use defense on a case-by-case basis.

81 See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 65 (1976); S. Rep. No. 473, 94th Cong., 1st Sess. 61-62 (1975) quoting REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW, 87th Cong., 1st Sess. 24 (Comm. Print 1961) (hereafter REGISTER'S REPORT).

82 See H.R. Rep. No. 1476, Id. at 73. A "matter of legitimate legislative concern" is not defined. In a speech or debate clause context, protection extends to activities within the sphere of legitimate legislative activity which is generally considered to be matters that are an integral part of the deliberative and communicative processes by which members participate in legislative proceedings. Such matters are distinguished from those activities that are political in nature and further interests distinct from legislative responsibility. See Gravel v. United States, supra n.2; United States v. Brewster, supra n.1. The republication of intra-Congressional material outside Congress has been held not to be a protected legislative activity. See Miller v. Transamerican Press, Inc., supra n.21; Hutchinson v. Proxmire, supra n.10 at 127-28 (1979). Although obtaining information pertinent to potential legislation is one of the "things generally done in a session of the House" concerning matters within the "legitimate legislative sphere" (see Kilbourn v. Thompson, 103 U.S. 168, 204 (1881)), Congress's "informing function" protected by the speech or debate clause as part of the legislative function is that of informing itself about subjects susceptible to legislation, not that of informing the public. See Hutchinson v. Proxmire, at 132-33.

83 Damages are limited to "reasonable and entire compensation." The available remedies do not include the other remedies for infringement available under the Copyright Act against infringing parties such as: injunctions; impoundment and disposition of the infringing articles; recovery of full costs and attorney's fees.

The subsection provides that before such an infringement action is instituted, "the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations."

84 As originally enacted, § 1498 applied only to suits for patent infringement against the United States. In 1960, Congress amended § 1498 to give its consent to suits for copyright infringement against the United States; Section 2 of Pub. L. 86-726 provided: Nothing in this Act shall be construed to in any way waive any immunity provided for Members of Congress under article I of section 6 of the Constitution of the United States.

Continued

construed the governmental waiver-relying on general construction of such waivers and on prior interpretation of a similar provision.85]

The protection of intellectual property rights in the information age and the balance between copyright owners' exclusive rights to control the uses of their creative works and the public's right of fair use of and access to copyrighted works are being addressed by Congress 86 and the courts.

In summary, where permission has been granted to CRS to use copyrighted material, it has likely been based on legislative purpose and limited to the print (rather than the electronic) environment.

If access is broadened to members of the general public, congressional release may be outside the scope of "legitimate legislative purpose." In such cases, a traditional fair use analysis may not provide an affirmative defense to an infringement action and liability could attach.8

87

The copyright law is intended to foster the creation and dissemination of intellectual works for the public welfare and to reward authors for their contribution to society. Striking a fair balance between the authors' exclusive rights to control the dissemination of their works and the public interest 88 is ever more challenging in the electronic environment.

Section 2 was added to the House bill by Senate amendment in order "to emphasize the fact that no immunities for Members of Congress under article I of section 6 of the Constitution shall be waived by the enactment of this legislation." See S. Rep. No. 1877, 86th Cong., 2d Sess. (1960) as reprinted in 1960 U.S.C.A.A.N. 3444. Presumably, speech or debate clause protection would protect Congressional use of copyrighted material that is used to further legitimate legislative activities that are part of the legislative processes (e.g., copyrighted material inserted into the Congressional Record or congressional document). See Copyright Office Memorandum of May 26, 1958 reprinted in 1960 U.S.C.A.A.N. at 3456. Congress did not waive its speech or debate clause immunity when it amended § 1498. However, insofar as activities outside of the legislative sphere (e.g., political activities) are concerned, it would appear as if § 1498(b) would not shield Congress from a copyright infringement action.

Auerbach v. Sverdrup Corp., 829 F.2d 175 (D.C. Cir. 1987) (holding that the government only waives immunity under § 1498(b) for third-party infringements that are authorized or consented to by the government rather than for any copyright infringement that a third party may choose to undertake). The Auerbach case, relying on the legislative history of this provision, is the sole case construing § 1498(b). Sec. 1498(a), the sister provision waiving immunity for patent infringements, has been interpreted more often-courts holding that such waiver is limited to direct governmental infringement.

In December 1996, the World Intellectual Property Organization (WIPO) adopted two new intellectual property treaties-the WIPO Copyright and WIPO Performances and Phonograms Treaties. The Copyright Treaty covers copyright protection for computer programs and for databases as intellectual works, and uses of copyrighted works in digital electronic environments, including transmissions over the Internet. The Administration's treaty implementation bills (S. 1121 and H.R. 2281) were introduced at the end of July 1997. Alternative WIPO implementation bills (S. 1146 and H.R. 2180) also address additional Internet policies issues. See U.S. Library of Congress Congressional Research Service. World Intellectual Property Organization Performances and Phonograms Treaty: An Overview (CRS Report for Congress 97-523A); and U.S. Library of Congress. Congressional Research Service. Online Service Provider Copyright Liability: Analysis and Discussion of H.R. 2180 and S. 1146 (CRS Report for Congress 97-950A). See also HN 3048, introduced in November 1997, which implements the WIPO treaties and updates Paited States copyright laws to accommodate the developments of digital technology (addressfus eg. "fair use," "first sale," and distance learning). H.R. 2652, the "Collections of Informafrom Antipuracy Act" would create sui generis protection, distinct from copyright protection, for vollections of facts, data or works of authorship. Government collections of information are exClused Exceptions address acts such as the extraction of insubstantial parts of collections of inRumation dependent gathering of information; non-profit educational, scientific or research Hapa and extraction for news reporting. The bill responds to the Supreme Court's decision in New Mukmin v. Rural Telephone Service Co., 499 U.S. 340 (1991) which held that comdive collections of facts arranged in conventional formats were not protected and could How e vitutionally protected under copyright. For an overview of legislative proposals introded in the 104th Congress, see U.S. Library of Congress. Congressional Research Service. Our Propals for the National Information Infrastructure (CRS Report for Congress 95

* Liability, however, would be limited by the exclusive remedies provided for in 28 U.S.C. #14 Cywight owners may not wish to assume the costs associated with § 1498(b) litigaThou in light of the limited damages that are available under this section.

**RIANTERN REPORT, supra n.39 at 6:

Within reale lumits, the interests of authors coincide with those of the public. Both will Hawally benefti fyn the widest possible dissemination of the author's works. But it is often cumbermume for would be users to seek out the copyright owner and get his permission. There are many situation in which copyright restrictions would inhibit dissemination, with little or no benent to the author And the interests of authors must yield to the public welfare where they conflict ••• While some limitations and conditions on copyright are essential in the public interest, they should not be so burdensome and strict as to deprive authors of their just

reward.

Public interest in dissemination of government documents must be weighed against the legitimate governmental purposes that are served in the Government's exercise of due diligence in not infringing copyrights (e.g., restricting the public's use of proprietary information incorporated in a government document). Although it may be possible to limit liability to some extent by taking certain diligent measures, 89 some degree of liability may continue to exist. There is some risk of assertion of copyright infringement if CRS materials containing proprietary material (and intended to support congressional needs) are made available on a wholesale basis online to members of the general public.

MEMORANDUM

FEBRUARY 24, 1998.

Subject: Immunity Issues Related to Dissemination by Members of Material on Their Home Pages

From: Jay R. Shampansky, Legislative Attorney, American Law Division

The Supreme Court recently described the Internet as “a unique and wholly new medium of worldwide human communication." 90 Cyberspace is new technology which raises "novel and unsettled” legal questions.91 This memorandum provides a brief overview of some of the major immunity issues potentially raised in a case in which a Member uses his home page to disseminate materials (e.g., legislative documents, legislative agency products, executive branch reports, information about state governments, press releases, newspaper and magazine articles) to the general public or to provide links to other Web sites. The same basic legal issues discussed below may be presented when Members use means other than their home pages to disseminate information to the general public. However, the potential for liability may be increased when documents are circulated on the Web because of the vast audience.

Speech or Debate Clause Immunity

Dissemination of material via the Internet would not be cloaked with constitutional speech or debate clause immunity.92 The Supreme Court in recent years has narrowed its interpretation of the speech or debate clause so as to limit its protection to "legislative acts." 93 Dissemination by a Member of material on the Internet would not be considered a legislative act, but would be viewed as an exercise of Congress' informing function, for which constitutional immunity is not available. In the absence of constitutional immunity, a Member and/or his aides engaged in public distribution of materials would be vulnerable to a variety of proceedings in which plaintiffs might seek damages or injunctive relief barring further distribution of a particular document.94 Litigants might also claim damages in suits alleging defamation or copyright infringement, or they might seek discovery of documents from congressional files.

Other Possible Defenses

In some cases defenses other than the speech or debate clause may be raised. Of course, the defenses asserted will depend on the particulars of a case. Two of the major defenses are sketched below.

Absolute and qualified immunity.—In several cases, Members have argued that although certain official communications (such as with the press and constituents) are not protected by the speech or debate clause, they are nonetheless shielded by the judicially-created absolute and qualified immunity doctrines available in certain circumstances to executive branch officials. Such a claim of immunity by a Member in a defamation action was rejected in the leading case of Chastain v. Sundquist,95 in which the U.S. Court of Appeals for the District of Columbia Circuit found that

89 For example, notifying the public that although there are no restrictions on the replication of CRS materials copyrighted materials contained therein may not be used without permission of the copyright owner.

90 Reno v. American Civil Liberties Union, 117 S. Ct. 2329, 2334 (1997).

91 Decisions Reflect Nature of Media, National Law Journal, Aug. 11, 1997, at p. B8. 92 Art. I, §6, cl. 1.

93 United States v. Brewster, 408 U.S. 501, 509 (1972). See also Walker, Constitutional Law: Narrowing the Scope of Speech or Debate Clause Immunity, 68 Temple L. Rev. 377 (1995).

94 See, e.g., Doe v. McMillan, 412 U.S. 306 (1973), a suit filed against various Members, their staffs and consultants, the Public Printer, and the Superintendent of Public Documents, seeking declaratory and injunctive relief and damages based on the publication and distribution of an official committee report that included material alleged to invade plaintiffs' privacy. 95 833 F.2d 311 (D.C.Cir. 1987), cert. denied, 487 U.S. 1240 (1988).

this immunity would not be warranted in light of Supreme Court treatment of suits against Members.

Westfall Act.-The Federal Employees Liability Reform and Tort Compensation Act,96 commonly referred to as the Westfall Act, allows for the substitution of the United States for individual federal employees in certain tort suits and provides for immunity for the defendant employees. However, the immunity afforded by the Westfall Act is of limited scope. (1) It applies only to common law torts (e.g., defamation), not to actions alleging violation of constitutional or statutory rights. (2) The immunity only affects a suit for money damages. It does not preclude a suit seeking injunctive or other equitable relief against the United States or an individual federal employee. Thus, it would not bar a suit to enjoin distribution of material on a Member's home page. (3) Application of the act is contingent upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose. Although it appears that Members are covered by the Westfall Act, it is uncertain to what extent the act may apply to Members' communications with the public. In Williams v. United States,97 it was held that the defendant Member "was acting within the scope of his employment at the time he allegedly made defama

tory statements *** [about the plaintiff] during a television interview The Member's comments concerned the status of an appropriations bill.98

MEMORANDUM

FEBRUARY 25, 1998.

Subject: Estimate of financial costs of implementing bills which would require publication of certain CRS products on the Internet.

From: Daniel P. Mulhollan, Director

This memorandum is a response to congressional requests for an estimate of the costs CRS would incur in implementing legislation (S. 1578 and H.R. 3131) which would require the Director of CRS to make various specified CRS products available to the general public on the Internet.

This estimate is based on three major components: costs of meeting technological requirements for implementation; costs of handling increased direct contacts with the general public; and costs resulting from changes in the number and type of congressional requests for CRS services. Before proceeding to the estimate, however, it is important to summarize explicitly the premises and the framework on which this analysis is based, as well as certain limitations resulting from the nature of the issues presented.

First, certain significant costs associated with the bills-indeed the most significant ones in terms of CRS' continued ability to serve the Congress efficiently and effectively cannot be quantified and thus are not included in these estimates. Important costs of this type include the possible loss of Speech or Debate protection for CRS' confidential communications to Members. Another significant non-quantifiable cost is the loss to the Congress and the nation resulting from the diminution of the role of Members as direct providers to their constituents of information about legislative proposals. Yet another cost of the proposal appears likely to be long-term and not readily measured: the shift in the mission of CRS, from serving the Congress directly and exclusively by meeting evolving congressional needs throughout the legislative process to serving broader, more diffused objectives, including preparing products informative to and suitable for the general public.

Second, certain of the cost estimates which we have prepared must be regarded as somewhat speculative, inasmuch as CRS has no previous experience dealing with large-scale direct dissemination of its products to the public and thus cannot readily anticipate the behavior of Members and the public under such circumstances. (It is reasonable and prudent, however, to anticipate that wholesale dissemination on the Internet would vastly increase the circulation of CRS products over the volume that circulates to the public under the current policy of selective dissemination by Members). This analysis presents the assumptions on which the estimates are based. We believe these assumptions are consistent with very conservative cost estimates and that actual financial costs could be substantially greater, perhaps on the order of

96 Pub. L. No. 100-694, 102 Stat. 4563 (1988), 28 U.S.C. §§ 1346(b), 2671–80. 9771 F.3d 502, 503 (5th Cir. 1995).

9 The Westfall Act was recently successfully invoked in a Member's defense of a defamation action based on remarks he had made to the media in regard to pending legislation. Operation Rescue National v. United States, 975 F. Supp. 92 (D.Mass. 1997).