The following discussion reviews congressional policy concerning distribution
of CRS products to the public and addresses issues for consideration by the Congress
in determining whether to alter current policy regarding public availability of various
CRS products, such as Reports and Issue Briefs.
As set forth below, CRS at present is precluded by law from general public
distribution of its materials without prior approval by a congressional oversight
committee. The Congress has actively exercised its oversight authority regarding
CRS publication practices and has developed and promulgated standards to be applied
in evaluating specific proposals. Current guidelines from the Joint Committee on the
Library and other congressional bodies, issued in 1980, restrict the vast majority of
CRS written products to congressional use and distribution to the public on a
selective basis only.
Many years of congressional consideration of this issue reveal serious concerns
about the institutional and legal consequences likely to result from the wholesale
direct public distribution of CRS products with a potentially large circulation (e.g.,
CRS Reports and Issue Briefs).
March 9, 1999
CONGRESSIONAL POLICY CONCERNING THE
DISTRIBUTION OF CRS WRITTEN PRODUCTS
TO THE PUBLIC
I. BACKGROUND ON CURRENT CONGRESSIONAL POLICY
CONCERNING THE DISTRIBUTION OF CRS WRITTEN PRODUCTS TO
B. Current Restrictions and Guidelines.
- Congress has historically reserved to itself control over the dissemination
of CRS products to the public on the principle that CRS, as an extension
of congressional staff, works exclusively for the Congress.
- To maintain congressional control over dissemination, a provision has been
included in CRS annual appropriations acts since FY1952 requiring prior
oversight committee approval for any CRS publication (as noted above,
"publication" refers to wholesale release of CRS products directly to the
public). For the current version of this provision, see Pub. L. 105-55, 111 Stat. 1190 (1997).
- Congress has never authorized the wholesale public dissemination of CRS
analytical products such as Reports or Issue Briefs (and has seldom
authorized publication of other products), whether by CRS or the
Congress, but rather has preferred to rely on congressional release of
individual products on a case-by-case basis.
- To further indicate the degree of congressional control over CRS products,
Congress, the courts, and administrative tribunals have declared CRS
communications to the Congress to be privileged under the Speech or
Debate Clause of the Constitution and to be under the custody and control
of the Congress. These determinations have assured the maintenance of
confidentiality in CRS relationships with congressional clients, a critical
element of CRS effectiveness and an expectation of those who seek its
At present, CRS is precluded by law from general public distribution of its
materials without prior approval by one of its two congressional oversight
committees. This restriction results from a limitation that has appeared in CRS'
annual appropriations acts in each year since FY 1952. This provision reads as
"Provided, that no part of this appropriation may be used to pay any salary or
expense in connection with any publication, or preparation of material therefor
(except the Digest of Public General Bills), to be issued by the Library of
Congress unless such publication has obtained prior approval of either the
Committee on House Oversight or the Senate Committee on Rules and
The most recent policy statement from Congress regarding the publication of
CRS written products came in 1980. In a communication, dated March 21, 1980, the
Joint Committee on the Library reaffirmed:
"Congressional policy that the circulation of CRS materials prepared specifically
for congressional use be limited to the Congress, and that the long-standing
policy of confidentiality in the work of CRS for individual congressional clients
should be maintained. We believe that, as in the past, CRS and its oversight
committees should consider the publication of only those CRS products whose
release to the general public would be compatible, both in terms of cost and
product content, with the CRS's obligations to the Congress."
This Senate Resolution directed the Senate Legal Counsel to
represent the Senate and CRS in respect to a Federal Trade Commission administrative law judge’s “sweeping
subpoena [on behalf of oil companies involved in a FTC proceeding] to the Congressional Research Service for
documents which discuss the oil industry and governmental policy in relation to it.” Id. The Resolution stated
that “the communications between the Congressional Research Service and the members and committees of
the Congress are an integral part of the legislative process and privileged under the Speech or Debate Clause
of the Constitution.”
The 1980 guidelines were developed subsequent to a 1978 proposal to CRS by
the National Conference of State Legislatures (NCSL) under which CRS would have
received access to the files of State research materials abstracted by the NCSL, and
also would have had the opportunity to order copies of desired items for use in
answering congressional inquiries. In return, CRS would have provided the NCSL
with periodic listings of CRS Reports (called "multiliths" at that time) and with only
one copy of those CRS Reports which the NCSL requested. Under this proposal the
NCSL also would have gained access to certain files from the Library of Congress's
SCORPIO system, including CRS Issue Briefs.
On September 27, 1978, the Joint Committee on the Library held a hearing to
consider the CRS-NCSL exchange proposal. At the hearing, the Committee
concluded that any transmission of CRS material contained in SCORPIO to noncongressional
users via computer terminal would constitute a "publication" and thus,
under the terms of the language contained in CRS's annual appropriations legislation
(noted above) would require the prior approval of either the Committee on House
Administration or the Senate Committee on Rules and Administration. Moreover,
members of the Joint Committee expressed serious reservations about any activity that
might divert CRS resources and priorities from its statutory responsibilities to
Congress. Finally, members of the Committee expressed the view that it was
appropriate for Members of Congress, rather than CRS, to determine whether and to
what extent various CRS products should be publicly disseminated. As a result, no
action was taken to implement the proposed CRS-NCSL exchange.
The March 21, 1980 guidelines were followed later that month (March 27, 1980)
by enactment of a Senate Resolution. (S. Res. 396, 96th Congress). The Senate
"That it is the determination of the Senate that the communications of the
Congressional Research Service to the members and committees of the Congress
are under the custody and control of the Congress and may be released only by
the Congress, its Houses, committees and members, in accordance with the rules
and privileges of each House."2
Senate Majority Leader Byrd, in introducing the Resolution, noted CRS’ role in
advising members and committees on legislative issues and that CRS “thereby
provides a service to the Members and committees of Congress which is equivalent
to that performed by the staffs of Members and committees.”3
Over the years, and at the request of CRS, the Joint Committee on the Library
has authorized a very limited number of CRS publications for broader distribution
through depository libraries, the sales program of the Superintendent of Documents,
and to the public through individual purchases. In addition, several CRS products are
published as the result of specific statutory authorization: the Digest of General Public
Bills and Resolutions (Bill Digest);4 and three publications for which CRS has been
given responsibility by the Librarian of Congress: the Constitution of the United
States of America, Analysis and Interpretation (Constitution Annotated);5 and the
national high school and college debate topic manuals. 6
C. Current Accessibility of CRS Written Products
With few exceptions, congressional offices are the exclusive source for
distributing CRS Reports and Issue Briefs to the public. Member offices use CRS
products to develop their own understanding of policy issues and options and to
inform their constituents regarding these issues and options. The principles of
representative government and of legislative accountability hold that representatives
have an obligation to provide their constituents with the information and
understanding required in order to exercise democratic citizenship; that is, the
democratic idea that the authority of those who govern rests on the consent of those
who are governed, calls for democratic consent to be fully informed and enlightened.
It is well known, both in Washington, D.C. and by interested parties throughout
the country, that constituents may obtain copies of CRS written products through a
Member or Committee of Congress. In addition, congressional offices often respond
directly to constituent requests for information on particular subjects by sending
copies of CRS Reports and Issue Briefs. For example, during fiscal year 1998, over
500,000 printed copies of CRS Reports and Issue Briefs were sent to congressional
offices. Some percentage of these are sent on to constituents -- either because
constituents asked for them specifically or as a means of answering constituent
requests for information. 7
Three changes during the past year have enhanced Members' and Committees'
ability to make CRS products available to constituents in electronic format through
congressional home pages. First, CRS has more than doubled the number of CRS
products available in the popular hypertext (HTML) World Wide Web format. Over
the past year, several hundred CRS reports have now joined issue briefs in being made
available in HTML format. Second, CRS has made all CRS documents available in
portable document format (PDF). This special format allows Members to easily print
high-quality, professional-looking copies of any CRS product from their own offices
at any time.
Third, CRS has greatly simplified finding the right CRS product online. The
Legislative Information System now carries a direct link to all CRS products. And,
new CRS search pages and changes in the search technology applications allow
Members and Committees and staff to more readily locate the CRS products they
need. This upgrade makes it easier for Members and Committees to add Issue Briefs
and Reports to their own home pages for their constituents to the extent such
availability is deemed appropriate by Members and Committees.
II. ISSUES ASSOCIATED WITH THE WHOLESALE RELEASE OF CRS
PRODUCTS TO THE PUBLIC
A. Institutional Issues
The direct, wholesale dissemination by Congress of Reports and Issue Briefs
would have significant effects on the policies, resources, and institutional culture that
CRS utilizes in serving the Congress.
First, CRS' mission is to support the Congress exclusively. Given its limited
resources, CRS can undertake services to non-congressional entities (such as the
public) only at the expense of direct support of the Congress. While the direct and
indirect costs associated with disseminating Reports and Issue Briefs are difficult to
estimate with precision, it is clear that significant resources would have to be diverted
from congressional services. For example, with wider product distribution,
particularly to users of the Internet/World Wide Web, CRS is more likely to get calls,
comments, and requests for additions and changes that would place a burden on CRS
analysts, distracting them from their work for Congress. In particular, outside parties
may judge and question CRS papers on the basis of standards other than the standards
CRS has developed to meet congressional needs (e.g., timeliness, non-partisanship,
balance, objectivity). It is reasonable to anticipate that the volume of communications
between CRS and the public, currently manageable, would rise substantially and affect
the Service's ability to meet the needs of congressional requester. Any mechanisms
developed by CRS to shield analysts from these demands would of course also involve
Second, CRS analysts now direct their writings, focused on legislative issues, to
congressional audiences. The closeness of CRS to the legislative process and the
sensitivity of the Service's traditional culture of exclusively supporting Congress'
legislative needs shape the nature and content of its written products. If CRS written
products were routinely available on a wholesale basis to academic and other
professional peers outside the Congress, CRS analysts might become more conscious
of the need to address views, methods, disciplines, and expectations of noncongressional
professional peers, with the result that CRS written work could shift
away, or appear to shift away, from its current emphasis on the congressional
With an awareness that a CRS Report would be disseminated to the public,
Members may increase the number of confidential requests that they place with CRS
in order to ensure that they are provided an opportunity - should they so desire - to
reflect and consider questions that emerge from evolving legislative proposals before
they have to respond to public inquiry about the resulting issues. This increase in
confidential requests requiring more tailored responses would diminish the ability of
CRS analysts to prepare reports that are generally available to Congress and that
serve a broader congressional audience. With this increase in tailored analysis would
come the necessity of duplicating more analysis because of the demand of those
Members who request that their examination of a legislative proposal remain
confidential at that point in the legislative process.
A third, related concern is potentially increased pressure from interest groups and
lobbying organizations on CRS analysts concerning the content of their reports and
the impact this pressure may have on serving the direct needs of the Congress for
analysis and information that is non-partisan, objective, and balanced. Enhanced
internal mechanisms would have to be developed to ensure that communications with
interested parties did not deflect CRS analysts from producing products that are free
from advocacy and bias, resulting in a further diversion of resources from direct
service to Congress.
Fourth, CRS staff serve by statute as an extension of Member and committee
staff. The release by Congress of CRS Reports and Issue Briefs may set a precedent
leading to greater pressure to have studies prepared by congressional staff for
Members’ exclusive use (e.g., committee staff studies distributed to entire committee
membership) to be disseminated directly to the general public. It might be difficult for
Congress to articulate a convincing rationale for granting public access to the
Service’s work but denying equivalent access to materials prepared by other shared
staff (e.g., committee staff) that are distributed to more than one Member. Thus, a
policy of providing Members’ constituents with the same materials that Members
themselves draw upon to make legislative decisions could have serious implications
for the functions of staff and their relationship with Members.
B. Legal Issues
This section considers three pertinent legal issues associated with the wholesale
dissemination of CRS products to the public. The first two issues involve the speech
or debate clause of the Constitution and the third deals with intellectual property
1. Widespread electronic dissemination to the general public of CRS Reports
and Issue Briefs would be more likely than dissemination pursuant to current
policy to precipitate litigation in which speech or debate clause immunity would
not be a defense.
Since its 1972 ruling in United States v. Brewster, the Supreme Court has
limited the immunity afforded under the speech or debate clause to "legislative acts," 8
which were distinguished from a range of activity described as "entirely legitimate"
but unprotected by the speech or debate clause because it was considered to be
"political in nature."9 In several cases relevant to the applicability of speech or debate
immunity to the public distribution of CRS products, the Court has relied on the
dichotomy established in Brewster to hold that congressional activities intended to
inform the general public are outside the scope of the speech or debate clause.
Notably, in Doe v. McMillan, the Court found that the clause might not protect the
Public Printer and the Superintendent of Documents from liability for distribution of
a committee report, which contained material alleged to have invaded individual
privacy rights, beyond "the legitimate legislative needs of Congress...."10
The dissemination (by Members and/or their aides, by CRS, or by a
congressionally designated entity) to the general public of CRS products would not
be viewed as a legislative act but would be considered to be an exercise of Congress'
representational function, for which speech or debate immunity is not available.11
Those engaged in public distribution of CRS products, as well as CRS analysts who
prepare the products, may be vulnerable to a variety of administrative and judicial
proceedings. In such actions, litigants might seek, for purposes of discovery, the files
of CRS analysts or litigants might ask for damages or injunctive relief barring further
distribution of a particular report or issue brief. Litigants might also claim damages
in suits alleging copyright infringement.
It would seem that these kinds of actions would be more likely to occur as a
result of widespread electronic dissemination to the general public of CRS products
than from the current practice of limited distribution (e.g., dissemination by a
congressional office of a single hard copy of a particular CRS product to a constituent
or incorporation of a CRS product in a committee report or hearing).
2. Widespread electronic public dissemination of CRS products would
jeopardize the confidentiality of CRS files and hamper a claim of constitutional
immunity by CRS.
Widespread electronic circulation of CRS products to the general public could
set CRS on a course accompanied by uncertain legal consequences.12
An inevitable consequence of widespread distribution of CRS products to the
general public would be an increase in public awareness of the research and analysis
prepared by the Service for Congress, which could escalate the efforts of litigants to
obtain, for purposes of discovery, CRS analysts' files. These discovery attempts might
seek not only information and data used to develop CRS Reports and Issue Briefs but
also related material from the Service's files.
Speech or debate immunity may provide a valid defense in such discovery
proceedings if the subject of the proceedings is a protected legislative act.13 However,
it is noted that, even in those cases in which CRS succeeded in defending against
discovery efforts, the litigation would place a burden on CRS and other congressional
resources and could put judges in the position of arbitrating disputes concerning 14
the confidentiality of communications between CRS and Congress.15 Claims of
speech or debate immunity would be subject to review by the courts, potentially
including in camera inspection of material as to which a claim of privilege is made16
and segregation of protected from non-protected material.17 Arguably, this type of
judicial sifting of legislative branch materials would impinge upon the interest in
confidentiality served by the speech or debate clause. 18
Further, for two reasons, it is uncertain whether Congress would prevail in
litigating such matters. First, it is possible that a court would not precisely
differentiate among the information in the superficially similar types of documents
in a CRS subject file and would grant litigants access not only to publicly available
information but also to confidential communications between the Service and
congressional offices. Second, 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.19 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
3. There is some risk of assertion of copyright infringement if CRS materials
are made available online to members of the general public.
United States copyright protection is not available for U.S. Government works.21
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.22
CRS may incorporate preexisting material in its written responses to
congressional requests. Although such material is often from public domain sources,
in certain instances the material, appropriately credited, may be from copyrighted
sources. To the extent that the material is copyrighted, CRS either: obtains
permission for the use;23 considers its information-gathering function protected by the
speech or debate clause; or believes that the use falls under the "fair use" doctrine of
the Copyright Act as applied in the context of the legislative process. 24
The exclusive rights of the copyright owner are qualified or limited by 25
enumerated exceptions.26 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.
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.27 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. 29
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
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 31
of reproduction and public distribution either as a matter of direct, vicarious or 32
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
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 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.
1 Pub. L. 105-55, 111 Stat. 1190 (1997).
2 126 Cong. Rec. 6892 (March 27, 1980).
4 2 U.S.C. 166(d)(6).
5 2 U.S.C. 168.
6 44 U.S.C. 1333.
7 CRS has not undertaken to survey congressional offices to determine this precise percentage.
8 U.S.Constitution, Art. 1, § 6, clause 1.
9 408 U.S. 501, 509, 512 (1972).
10 Doe v. McMillan, 412 U.S. 306, 324 (1973)(emphasis added). The Court remanded for a determination
as to whether the extent of distribution by the Public Printer and the Superintendent of Documents had
exceeded "the legitimate legislative needs of Congress, and hence the limits of immunity." Id. On the remand,
the lower courts upheld the claim of immunity as to the Public Printer and Superintendent of Documents (374
F. Supp. 1313 (D.D.C. 1974), aff'd, 566 F.2d 713 (D.C.Cir. 1977), cert. denied, 435 U.S. 969 (1978)), but the
court of appeals expressly reserved the question of the availability of immunity "in a case where distribution
was more extensive...." 566 F.2d at 718. Apparently the only copies distributed outside the federal
government in the events that precipitated the suit in McMillan were approximately 172 of 796 copies that had
been distributed to various federal agencies.
11 See, e.g., Doe v. McMillan, supra; Hutchinson v. Proxmire, 443 U.S. 111 (1979).
12 As one legal journal has observed, in addressing the Internet and other computer-related issues, the
courts are on "uncharted water." Thou Shalt Not Trespass--Even in Cyberspace, New Jersey Lawyer, Sept.
1, 1997, at p. 10.
13 See, e.g., Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C.Cir. 1995).
14 Discovery attempts to obtain CRS file materials have often been defended by the offices of House
General Counsel or Senate Legal Counsel. See, e.g, S.Res. 291, 101 Cong. (resolution directing Senate Legal st
Counsel to represent a CRS attorney in Smith v. IRS, No. 3778-89 (Tax Ct. 1990)).
15 See In re Grand Jury Investigation, 587 F.2d 589 (3d Cir. 1978); United States v. Eilberg, 507 F. Supp.
267 (E.D.Pa. 1980).
16 See, e.g., Benford v. American Broadcasting Co., 98 F.R.D. 42 (D.Md. 1983), rev'd on other grounds
sub nom. In Re Guthrie, 733 F.2d 634 (4th Cir. 1984).
17 See, e.g., United States v. Helstoski, 442 U.S. 477, 488 n.7 (1979).
18 The courts are divided on the question of whether the speech or debate clause was intended to ensure
confidentiality for legislators. Compare Brown & Williamson Tobacco Corp., 62 F.3d at 420 with In re Grand
Jury Investigation, 587 F.2d at 597.
19 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); 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").
20 See, Doe v. McMillan, note 9, supra.
21 17 U.S.C. § 105.
22 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).
23 Although CRS obtains permission to reproduce certain copyrighted works, the permissions are generally
based on legislative use and the expectation that dissemination is limited to Members of Congress.
24 Copyright Act of 1976, Act October 19, 1976, Pub. L. No. 94-553 (codified as amended at 17 U.S.C.
§§ 101 et seq.). See 17 U.S.C. § 107.
25 17 U.S.C. §§ 106, 106A.
26 17 U.S.C. §§ 107-120.
27 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).
28 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 different “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.
30 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.
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 or public information activities) are concerned, it would appear that § 1498(b)
would not shield Congress from a copyright infringement action.
31 17 U.S.C. §§106(4),(5).
32 17 U.S.C. §106(1), (3).
33 17 U.S.C. §§101,106(3).