SAA Comments on the Hague Convention on Jurisdiction and Foreign Judgments in Commercial and Civil Cases

October 2001

The Honorable Colin Powell
Secretary of State
United States Department of State
2201 C Street NW
Washington, DC 20520

Dear Mr. Secretary:

On behalf of the Society of American Archivists (SAA), I write to endorse the request of the American Library Association (ALA) to add a representative from the library, archival, or information science sector to the official U.S. delegation to the Hague Convention on Jurisdiction and Enforcement of Judgment in Commercial and Civil Cases. In particular, we are concerned that the Hague Convention, as currently written, may abrogate rights guaranteed by the U.S. Constitution (Article I, Section 8) regarding public use of copyrighted material.

The SAA, as the largest archival association in the world, with 3,500 individual and institutional members, promotes public and scholarly access to historical information. Consequently, SAA maintains a very strong interest in copyright law issues that enable broad access to historical documents. We are concerned that unless care is taken in the next stages of the Hague negotiations, American courts may be required to enforce foreign laws that limit use of copyrighted material in ways which American law would otherwise consider inconsistent with the constitutional purpose of copyright.

The issues regarding the use of intellectual property by scholars and students are extremely complex and differ significantly from the issues facing business entities. The SAA therefore strongly urges that someone with specific expertise from the library or archival professions be included in the U.S. delegation lest the intellectual freedoms guaranteed to us by the Constitution are consumed by the interests of other, far less free, nations.

Thank you for your consideration.

Sincerely yours,

Steve Hensen

President
Society of American Archivists

October 2001 

Velica Steadman
Director
Box 4, United States Patent and Trademark Office
Washington, DC 20231

Via Fax to (703) 305-8885

RE: FR Doc. 01-20916, August 17, 2001

Dear Director:

On behalf of the Society of American Archivists (SAA), I write to provide comments on the Hague Convention on Jurisdiction and Foreign Judgment in Commercial and Civil Cases. The SAA, as the largest archival association in the world, with 3,500 individual and institutional members, promotes public and scholarly access to historical information. Our particular concerns with the draft Hague Convention concern negative consequences for United States citizens if matters of copyright law are included in the final Convention.

American copyright law is unique in its basis in Constitutional privileges(Article I Section 8) provided to authors and users of copyrighted materials. Through over two centuries of legislation and judicial interpretations, Americans have achieved an enviable position of a copyright law that provides protections for authors as well as for users, including all citizens. Furthermore, American courts have repeatedly issued opinions which balance authors' property rights in works with users' constitutional free speech and creative rights. Examples such as the Napster or the Skylarov cases illustrate that the balance cannot always be achieved with the first court ruling, but U.S. courts are the only body that can interpret and uphold American rights to copyrighted material.

As curators of manuscript and unpublished material, which can only be disseminated for the benefit of the public, we are very proud of the broad contours of American copyright law. This is why we have grave concerns about the approach of some other jurisdictions, for example those continental legal traditions employ the notion of "moral rights" to use copyright law to prevent the use of unpublished material and thereby censor history. Existing international treaties and organizations, such as the Berne Convention and the World Intellectual Property Organization, are a more appropriate way to deal with the harmonization of copyright law than the Hague Convention's unsophisticated retrofitting of an enforcement mechanism.

Therefore, in negotiations of the Hague Convention, we believe it best for Americans if copyright can be specifically excluded from the final document. Failing that, we believe that the final document needs to guarantee that American rights, such as fair use, library and archival copying privileges, and first sale rights need to be specifically protected. Further, we believe that the exclusive rights of copyright holders should not be allowed to expand beyond those stipulated in Section 106 of U.S. Title 17.

We would be pleased to provide further explanation of these matters if you desire.

Thank you.

Sincerely yours,

Steve Hensen
President
Society of American Archivists