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From: rbcraig@nccph.org [mailto:rbcraig@nccph.org]
Sent: Thursday, May 23, 2002 9:49 AM
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Subject: [NCCmailings] NCC WASHINGTON UPDATE, Vol. 8, #21, May 23, 2002

NCC WASHINGTON UPDATE, Vol. 8, #21, May 23, 2002
by Bruce Craig <rbcraig@nccph.org>
National Coordinating Committee for the Promotion of History (NCCPH)
*****************

1.   Amici Curiae Briefs Filed in Eldred Case
2.   National Heritage Area Legislation Passes Key Park's Subcommittee
3.   "Preserving America's Heritage" Executive Order in the Works
4.   NEH Withdraws Name From Fellowship
5.   News Bits and Bytes: Lake Tahoe Case Decided
6.   Articles of Interest:  "Smithsonian Curators Scramble to Save
Artifacts: Exhibit to Bear Witness to 9/11" (Washington Post/Chicago
Tribune)

1.  AMICI CURIAE BRIEFS FILED IN ELDRED CASE
On May 20, 2002 several amici curiae briefs were filed on behalf of a
diverse group of academics and organizations including the American Library
Association, the American Historical Association, Association of Research
Libraries, College Art Association, Council on Library and Information
Resources, the Midwest Archives Conference, National Humanities Alliance,
the National Council on Public History, the Organization of American
Historians, the Society of American Archivists, and dozens of other groups,
in support of Eric Eldred, an online publisher who is challenging the
constitutionality of the 1998 Sony Bono Copyright Term Extension Act.  The
case, Eldred v. Ashcroft is to be heard by the U.S. Supreme Court this fall.

The briefs will be used by the Court to help determine whether the new
copyright act that grants protection of existing copyrights by an
additional 20 years (to 70 years after a creator's death) is
constitutional.  Eldred contends that Article I, Section 8 of the
Constitution which provides that the purpose of copyright is to "promote
the progress of science and useful arts" is undermined by the new law. In
filing their briefs, intellectual property scholars, professors, as well as
historical, archival and library groups with national constituencies assert
that old books, songs and movies should flow continuously into the public
domain and that the present law prevents published material from entering
that domain. In fact, the existing copyright law effectively prohibits
non-copyright owners -- i.e. librarians, curators, archivists, historians
and scholars -- from republishing and disseminating older works, even
though they may have no significant commercial value but may have strong
historical interest or artistic merit.

The case is perhaps the most important copyright matter the Court has taken
up in decades in part due to the ramifications that the decision will have
on the distribution of creative and historical works in the digital age.
The Court's decision may have broad implications for historians and
archivists as it could result in thousands of classic films, books, and
music that first appeared in the 1920s and 30s becoming freely available on
the Internet and elsewhere.

To date, Congress's right to extend the copyright law has been upheld in
rulings by both a federal district and an appellate court. Most recently,
in a 2 to 1 decision, the U.S. Court of Appeals for the District of
Columbia Circuit found that Congress indeed had the authority to extend
copyright and found that the law actually gave copyright holders "an
incentive to preserve older works."  That court held that retroactive term
extensions clearly are within congressional authority under the copyright
clause and that the 20-year term extension did not violate the First
Amendment. When the Supreme Court agreed to hear the case, many legal
scholars were taken by surprise and some predict that now there may well be
a different outcome.

The amici briefs argue that a "fundamental part of the genius of the United
States copyright system is that the Constitution ensures that after
original, creative works of authors have been rewarded with a limited term
of protection, those works become part of the public domain" and should "be
freely used by all."  Collectively, the briefs also argue that Congress
exceeded its authority under the Constitution when it passed the Copyright
Term Extension Act (CTEA) as the Act  "materially impoverishes the public
domain that the clause was designed to enrich."

Court insiders believe the Justices will decide the case by focusing
narrowly on the question of whether Congress exceeded its authority when it
passed the most recent copyright extension.  Oral arguments before the
Supreme Court are expected to take place in the fall.

For all the briefs and other background material, tap into:
http://eon.law.harvard.edu/openlaw/eldredvashcroft/legal.html

2.  NATIONAL HERITAGE AREA LEGISLATION PASSES KEY PARK SUBCOMMITTEE
On May 22, 2002 the House Committee on Resources voted out of committee
Representative Joel Hefley's (R-CO) bill, "The National Heritage Areas
Policy Act" (H.R. 2388) -- legislation that establishes criteria and a
mechanism for the designation and economic support of national heritage
areas. Passage of the measure though was not without controversy and while
it was voted out of committee, one important provision -- owner
notification --  remains unresolved.

National heritage area (NHA) criteria legislation has been a testy issue
for lawmakers for some time. Legislation similar to Hefley's bill has been
unsuccessfully advanced in Congress since 1994.  The first NHA was
designated in 1984, yet there are no formal guidelines or criteria for the
creation or management of such areas. At present there nine NPS studies
underway with an additional 17 bills pending legislative action in the
House and Senate.

Hefley introduced his bill on June 28, 2001 when he was Chair of the House
Subcommittee on National Parks, Recreation and Public Lands. The
legislation authorized the Secretary of the Interior to recommend an area
for NHA designation only after the Secretary conducts an approved
feasibility study and concludes that the study area is appropriate for such
designation.  The measure provided that, as a starting point, the study
area must possess natural, historic, cultural and/or recreational
amenities.  Hefley proposed that the federal government would fund 50% of
the costs of such studies and that, in general, the maximum federal
commitment would end after ten years of grants to local coordinating
entities. Hefley envisioned that the total authorization for the NHA grants
programs would be $10 million per year with no single heritage area
receiving more that $1 million per year.

When the measure came to a vote in full committee, the Hefley "amendment in
the nature of a substitute" was offered.  It clarifies unresolved issues in
the original bill and creates a two-tier process for establishing a
heritage area as well as two separate grant programs.  The substitute
measure also establishes a five-year matching program to local coordinating
entities for the development of their feasibility study and management plan
and then, like the original bill, sets a ten-year cap on federal funding to
carry out their preservation programs and management plan.

Controversy centered on several amendments dealing with the acquisition of
real property from willing sellers and on provisions relating to land owner
notification. Both issues were of prime concern to the American Land Rights
Association, a property-rights organization that is actively opposing the
bill.  According to Rep. Hefley this group "flooded" the subcommittee with
letters and petitions objecting to the bill in its entirety prior to the
mark-up.

Representative Nick Rahall (D-WV) offered an amendment that sought to
authorize the use of federal grant money to purchase real property or
interests in real property from willing sellers - the amendment was
defeated 22 to 15.  A second amendment, offered by Representative Richard
Pombo (R-CA), sought to require written notification and responses from
each and every land owner in a proposed heritage area boundary prior to
designation. Rep. Hefley opposed the amendment as did Rahall and most of
the Democrats in the hearing room. In the words of one National Park
Service insider who attended the hearing, inclusion of the language would
render the bill "unworkable" given the number of landowners in the typical
heritage area. While the amendment was defeated 21 to 19, Hefley agreed to
work with Pombo and committee staff to find some other acceptable
"alternative for owner notification" before the measure is advanced to the
House floor.

Clearly, this legislation is still not without controversy.  It is not
likely to be advanced to the House floor for passage under the routine
"suspension of the rules" procedure because the measure remains
controversial and at least one important unresolved matter remains -- owner
notification.  National Park Service officials hope to meet with committee
staff in the near future to work out some acceptable solution to the
controversy.

3.  "PRESERVING AMERICA'S HERITAGE," EXECUTIVE ORDER IN THE WORKS
The Advisory Council for Historic Preservation has advanced to the Office
of Management and Budget a proposed executive order (E.O.) entitled
"Preserving America's Heritage." The E.O. which is expected to be forwarded
to federal agencies and other interested parties for comment in the near
future, is designed to articulate the Bush Administration's support for
historic preservation and to reiterate the responsibilities of federal
agencies in applying the nation's historic preservation laws. The order is
expected to be formally issued by the White House in about three months.

While details of the proposed order have not been publicly released,
sources inside the preservation community report that it is designed to
accomplish several things: it includes a broad statement that every federal
agency (regardless of its mission) is responsible for protecting the
nations' heritage; it includes a statement in support of preservation
"partnerships;" it directs federal agencies to inventory and to
periodically make condition assessments of their heritage resources and
report on the corrective actions needed; it directs federal agencies to
find ways to cooperate with local agencies; and it encourages agencies to
make their holdings more accessible to the public.

The order follows on the heels of an Advisory Council 2001 report entitled,
"Caring for the Past Managing for the Future."  That report looks at the
wealth of historic assets managed by the federal government and recommends
actions to remedy many of the problems plaguing the government in its legal
mandate to care for historic properties.  The report urges lawmakers to
change government policies that put historic preservation at a disadvantage
when management decisions are made by federal property managers; it
encourages public-private partnerships; it calls for focused collaboration
among different branches of government; and it urges higher levels of
funding for federal historic preservation activities.  To access the report
tap into: <http://www.achp.gov/pubs-stewardship.html)>

4.  NEH WITHDRAWS NAME FROM FELLOWSHIP
The National Endowment for the Humanities (NEH) has requested that the
Newberry Library in Chicago withdraw the federal agency's name from a
$30,000 fellowship the library awarded to Michael Bellesiles an Emory
University professor and author of the controversial work, "Arming
American: The Origins of a National Gun Culture," to complete research on a
new book.  Bellesiles has come under recent attack for alleged "errors of
fact, omission and judgement" in his book that concludes that guns were
rare in the early years of the nation.

In a letter to the institution, Lynne Munson NEH Deputy Chair, stated that
"by neglecting its crucial oversight responsibilities, the Newberry Library
failed to meet the high scholarly and ethical standards necessary for any
award bearing the NEH name. . . .We are therefore revoking the NEH name
from this fellowship."  The grant money was part of a larger NEH grant the
Newberry received in FY 2000 for 12 research fellowships. The Newberry
reports that it will comply with the request and has changed Bellesiles'
designation from "NEH Fellow" to "Newberry Library Fellow."

Bellesiles has one week remaining on his fellowship at the library. When
reached for comment about the NEH request, Bellesiles stated that the
action of the agency "should send chills through academics everywhere.  The
spirit of Joe McCarthy stalks the halls of the NEH. . . .I regret that my
name has been associated with an agency that values so little the
principles of the First Amendment, due process, and academic freedom."

5.  NEWS BITS AND BYTES
Item #1 -- Lake Tahoe Case Decided:   On April 23, 2002, the U.S. Supreme
Court ruled in favor of preservationists when it decreed in the case
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency that
"compensation for every delay in the use of property would render
government processes prohibitively expensive or encourage hasty decision-
making."
The issue focused on whether a temporary moratorium on land development
constitutes a compensable "taking" of private property.  In the Tahoe case,
the local government had imposed a moratorium on development around Lake
Tahoe to protect its pristine waters while local planners drafted permanent
regulations to prevent the lake's degradation. In the 6 to 3 decision the
Court reaffirmed several key land-use principles in Penn Central Transp.
Co. v. New York City (438 U.S. 104) which is viewed as the linchpin
decision for the 2,500-plus local preservation ordinances in existence
around the country.  For a copy of the decision, tap
into:  http://www.supremecourtus.gov/opinions/01pdf/00-1167.pdf.

6.  ARTICLES OF INTEREST
This week, an article on  the Smithsonian Institution's efforts to preserve
and interpret the events of 9/11: see "Smithsonian Curators Scramble to
Save Artifacts: Exhibit to Bear Witness to 9/11" (The Washington
Post/Chicago Tribune) at
<http://www.chicagotribune.com/features/lifestyle/chi-0205200138may20.story>
.


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