On the face of it, an amendment to the Stevenson-Wydler Act to allow copywriting of government-developed software is not something likely to electrify the next editorial board meeting.

In fact, most newsrooms would be hard pressed to see any connection between the amendment and their efforts to cover government.

However, this obscure proposed amendment to an equally obscure federal law illustrates the new challenges facing the press as government shifts from storing records on paper to storing them on computers.

The current version of the Stevenson-Wydler Technology Innovation Act makes it profitable for private companies to use discoveries that are jointly developed with government labs - partnerships known as cooperative research and development agreements, or CRADAs.

The law permits the government to obtain patents on inventions, resulting from CRADAs. Federal employees who help develop the innovations share in the royalties, and private industry receives a license on the government's patents to develop commercial products.

While the law allows the government to hold patents, it does not cover copyrights. Current copyright law prohibits the federal government from applying for copyright protection for its works, including software.

One-sixth of the country's scientists and engineers work at the more than 700 government-run laboratories. Rep. Connie Morella (R-Md.) and Sen. John Rockefeller (D-W.Va.) reasoned that by encouraging the private sector to form CRADAs, this country could protect a valuable lead it has in computer technology. Both have submitted legislation that would extend the Stevenson-Wydler Act to include copyright protection for CRADA-produced software. The identical bills are currently winding their way through Congress.

What does this bill have to do with a reporter's access to information?

Everything.

Electronic data is rapidly becoming the dominant form of record keeping in the United States. The Federal government, at last count, had over 30,000 mainframes and mini-computers storing information on everything from crop reports to cancer research. This means that if reporters want to do their jobs, they will have to know how to obtain and use electronic records. While electronic information is similar to its paper-counterpart, there are significant differences - differences which the bills of Morella and Rockefeller, despite their good intentions, do not address.

When a reporter requests a paper record from a government agency, there is an assumption that is so well accepted that it goes unstated: the information will be in English. Not so electronic information, which has no accepted form for electronic records.

There are two different coding schemes (ASCII and EBCDIC), at least four different methods of recording information on magnetic tape, and a seemingly endless number of record formats. What is crucial to note here is that the form in which information is recorded on a tape is controlled by the software. This makes it exceedingly easy for a government agency to keep its records secret by hiding behind the protection of the Morella-Rockefeller amendment.

With the help of a private company, an agency could develop database software that uses a proprietary scheme for storing information. When reporters ask for a copy of the government's database, the agency would gladly oblige. If reporters complain that they can't decipher the way the information is stored, the agency can say, "Sorry, the copyrighted instructions for deciphering the information are not public."

This is not to say that Morella and Rockefeller are trying to upend the concept of open government. Proponents of the amendment argue that only the software will be copyrighted, not the data.

Software in this view is the mechanical version of a clerk that retrieves, sorts, counts, indexes and stores information as if it were paper records.

The distinction between software and data is likely to become even more tenuous as increasingly powerful software programs are developed. What do we make of artificial intelligence (AI) software, where the knowledge base is built into the software as a series of general rules? Are the rules software, data, or something else? Even more esoteric is software that "learns," that develops its own rules as it examines information.

Is it likely that government will be working with such exotic software? If the Morella-Rockefeller amendment is passed, that is precisely the kind of software that the bill's proponents envision.

One way out of this thicket is to copyright the software but require the government to provide public access to the information. This rings hollow. The use will be free only if you are using a government computer loaded with the government's copyrighted software in the government's building. It will be the stand-in-line use, the you-can't-take-it-home-or-to-the-office use. This will be a use devoid of much convenience and solitude.

For the importance of timeliness, imagine this scenario: The government, shortly before an important election, has released new figures on the "negative growth incline" (recession) which show that the economy has turned around to such an extent that the U.S. will have a projected 10-percent positive growth by the end of the year. The government's new, copyrighted software made the analysis possible. Phenomenal figures, you think. Impossible, in fact.

You want to check the government's figures, but to do so, you have to use the government's software. In fact, you want to check out the software, not just the figures it produces. That's impossible, you are told. The first time the much-in-demand software can be available is - you guessed it - after Election Day.

The Morella-Rockefeller amendment should be seen as a signal flare in every newsroom in America. If we do not develop a national policy on access to electronic information, we may wake up one morning to a closed society. "We would love to give you that information," the clerk explains, "but it's on a computer."

This article was reprinted with permission by Editor & Publisher. Jackson and Jen Schmid contributed research for this article.