CRS-11 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. 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." 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 concern..."28 Thus, 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 confines of Congress would further complicate the "fair use" question." 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...." 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.30 ... "See H.R. Rep. No. 1476, 94th Cong., 2d Seas. 65 (1976); S. Rep. No. 473, 94th Cong., 1st Sems. 61-62 (1975) quoting REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW, 87th Cong., ist Sess. 24 (Comen. Print 1961) (hereafter REGISTER'S REPORT). "See H.R. Rep. No. 1476, Id. at 73. 29 Moreover, if CRS products were generally available to the public, the construction of these products may be affected, with the potential consequent loss when material, such as copyrighted maps or graphs, may be withheld in the writing of the paper with the foreknowledge that the paper could be widely disseminated and thereby subject to differem "fair use" guidelines than those applicable to work for legislative use only. Therefore, public availability may perforce shape selected CRS products so that their contents no longer bring to bear the best information and analysis to assist Members in their decisionmaking. "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 CRS-12 In summary, where permission has been granted to CRS to use copyrighted material, it has likely been based on legislative purpose and limited to selective distribution of hardcopy by Members of Congress. If access is broadened to wholesale release to members of the general public, such release may be outside the scope of "legitimate legislative purpose." If a CRS product, containing substantial copyrighted material (albeit with appropriate credit) is made available to the general public without permission and outside the confines of traditional fair use, liability is possible. In this regard, distinctions can be made between the selective distribution of hardcopy CRS products by Members and Committees and wholesale, potentially world-wide distribution of CRS products on the Internet. Violation of any of the exclusive rights of the copyright owner may give rise to an action for copyright infringement. Although the extent of copyright owners' rights in the online environment is still evolving, wholesale distribution of CRS products via the Internet - unlike the current practice - would likely implicate copyright owners' performance and public display rights," as a matter of direct infringement, and may implicate rights of reproduction and public distributionTM either as a matter of direct, vicarious or contributory infringement. On the other hand, under a "fair use" analysis, there is likely less effect upon the potential market of the copyright owner in the case of selective hardcopy distribution than in the case of wholesale distribution on the Internet. Selective distribution of hardcopy CRS products by Members may not constitute "publication" in the copyright sense. 33 III. CONCLUSION To review, Congress has historically regarded CRS as an extension of its own Member and committee staff. CRS' relationship with Congress is confidential and exclusive; in order to preserve this relationship, Congress has determined as a Congress under article I of section 6 of the Constitution of the United States. 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 ka 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 or public information activities) are concerned, it would appear that § 1498(b) would not shield Congress from a copyright infringement action. CRS-13 matter of policy that CRS products are to be distributed to non-congressional users through congressional offices on a selective basis. Proposals to disseminate CRS products directly to the public would fundamentally change this longstanding congressional policy, with potentially significant institutional and legal consequences for CRS and current congressional operations and practices. In summary, Mr. Chairman and Members of the Committee, CRS submits a budget that takes into account efforts throughout the legislative branch to adapt to continuing fiscal constraints. The goal of this budget request is to fulfill our statutory mission. I would be pleased to discuss any issues in detail and answer any questions. Thank you, Mr. Chairman. [The information follows:] Statement of Daniel P. Mulhollan Subcommittee on Legislative Appropriations Mr. Chairman and Members of the Subcommittee: I am very pleased to appear here today to discuss the fiscal year 1999 budget request for the Congressional Research Service. I would like to outline briefly the accomplishments of the Service, to discuss the challenges facing us in the near future, and to assure you that we have and will continue to focus our efforts on supporting the legislative work of the Congress in an effective manner within the fiscal decisions you make. Sustaining the Quality and Scope of CRS Services Mr. Chairman, the Legislative Reorganization Act of 1970 made it the statutory mission of the Congressional Research Service to provide the Congress with “analysis, appraisal, and evaluation of legislative proposals” in order to assist the Congress in— Based on an underlying belief that the Congress needed this expertise, and that it could most effectively and efficiently meet that need through a nonpartisan, shared pool of |