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August 23, 2006, Alert No. 1,437.
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Bush Issues Executive Order Regarding Health Care Information Technology

8/22. President Bush issued an executive order titled "Executive Order: Promoting Quality and Efficient Health Care in Federal Government Administered or Sponsored Health Care Programs".

This order states that "It is the purpose of this order to ensure that health care programs administered or sponsored by the Federal Government promote quality and efficient delivery of health care through the use of health information technology", and other things.

It provides that "As each agency implements, acquires, or upgrades health information technology systems used for the direct exchange of health information between agencies and with non-Federal entities, it shall utilize, where available, health information technology systems and products that meet recognized interoperability standards."

It further provides that "Each agency shall require in contracts or agreements with health care providers, health plans, or health insurance issuers that as each provider, plan, or issuer implements, acquires, or upgrades health information technology systems, it shall utilize, where available, health information technology systems and products that meet recognized interoperability standards."

Finally, it states that "Agencies shall comply with the requirements of this order by January 1, 2007."

Bush also gave a speech on August 22, 2006, in Minneapolis, Minnesota, in which he discussed his executive order. He said that "medicine is really behind the times when it comes to information technology. And one of the things we'll talk about here is how to use information technology to wring the costs out of medicine, and yet be able to deliver good quality care to our citizens."

He said that "It's estimated that between 25 -- that we can reduce costs by 25 to 30 percent with the advent of what we call medical -- electric medical records, so each person has got their own electronic medical record that you've got to add on -- in other words, we'll be passing information from provider to provider via the Internet, via new technology as opposed to handwritten files that are carried from one office to the other."

Robert Laurence, President of the Information Technology Association of America (ITAA) praised the order. He said in a release that "Standard IT systems spell an end to paper records; interoperable data means beneficiaries can understand which plans are of higher quality than others; transparency will promote more efficient and effective programs; and ultimately commercial providers can follow suit."

1st Circuit Construes Visual Artists Rights Act

8/22. The U.S. Court of Appeals (1stCir) issued its opinion in Phillips v. Pembroke Real Estate, a copyright case regarding the Visual Artists Rights Act of 1990 (VARA), which is codified at 17 U.S.C. 106A. The Court of Appeals affirmed the judgment of the District Court, although on different grounds. The Court of Appeals rejected the legal theory that the VARA protects site specific art.

This case illustrates some of the risks that owners, lessors and purchasers of buildings, land, and other real property interests face when their property incorporates, or is the location of, works or features that may be construed as "visual art" within the meaning of the VARA. Artists might enjoin the owner or lessee of the property from freely using and improving the property, on the grounds that doing so would impair the rights of the artist.

David Phillips, a sculpture artist, filed a complaint in the U.S. District Court (DMass) against Pembroke Real Estate, seeking to enjoin Pembroke from moving certain of his sculpture works from a public park managed by Pembroke. Phillips alleged violation of the VARA and state law.

Subsection 106A(a) provides, in part, that "the author of a work of visual art ... shall have the right ... to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and ... to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right."

Then, Subsection 106A(c) provides, in part, that "The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence."

The statute makes no reference to site specific art.

The District Court held that Phillips' sculptures are "site specific art", for which movement of the art is deemed destruction of the art. However, it also held that Pembroke could move the works under the "public presentation" exception of Subsection 106A(c).

The Court of Appeals affirmed the judgment that Pembroke may move the art. However, it did so upon its conclusion that the "plain language of VARA does not protect site-specific art".

This case is David Phillips v. Pembroke Real Estate, Inc., U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 05-1970, an appeal from the U.S. District Court for the District of Massachusetts, Judge Patti Saris presiding. Judge Lipez wrote the opinion of the Court of Appeals, in which Judges Cyr and Stahl joined.

Notice
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Washington Tech Calendar
New items are highlighted in red.
Wednesday, August 23

The House will next meet at 2:00 PM on Wednesday, September 6. See, Republican Whip Notice.

The Senate will next meet at 11:00 AM on Tuesday, September 5.

8:30 AM - 2:30 PM. The American Electronics Association (AeA) will host an event titled "AeA Annual Government - Industry Executive Interchange". See, notice. Prices to attend range from $195-$295. Location: The Spy Museum, 800 F St., NW.

9:30 AM - 4:30 PM. Day one of a two day meeting of the U.S.-China Economic and Security Review Commission to consider drafts of material for the 2006 Annual Report. The agenda includes discussion of export controls and China's WTO compliance. See, notice in the Federal Register, August 16, 2006, Vol. 71, No. 158, at Page 47328. Location: Conference Room 381, Hall of The States, 444 North Capitol St., NW.

12:00 NOON - 3:00 PM. The DC Bar Association will host a panel discussion titled "DR-CAFTA: The United States-Dominican Republic-Central America Free Trade Agreement A Roundtable with the Ambassadors". The speakers will include ambassadors to the U.S. from Dominican Republic, Guatemala, Honduras, Nicaragua, El Salvador, and Costa Rica. The price to attend ranges from $15-40. For more information, call 202-626-3488. See, notice. Location: Arnold & Porter, 555 12th St., NW.

1:30 - 3:30 PM. The Department of State will host a meeting to hear public views on issues related to the possible expansion of the mandate of the International Mobile Satellite Organization (IMSO) to include new oversight and regulatory responsibilities that may affect U.S. and non-U.S. mobile satellite services providers. See, notice in the Federal Register, August 10, 2006, Vol. 71, No. 154, at Pages 45897-45898. Location: Harry S. Truman building, 2201 C St., NW.

CANCELLED. Federal Communications Commission (FCC) Auction 67 is scheduled to begin. This is the 400 MHz Air-Ground Radiotelephone Service auction. See, FCC notice of cancellation [PDF] and notice of cancellation in the Federal Register, May 17, 2006, Vol. 71, No. 95, at Page 28695.

Thursday, August 24

9:30 AM - 4:30 PM. Day two of a two day meeting of the U.S.-China Economic and Security Review Commission to consider drafts of material for the 2006 Annual Report. The agenda includes discussion of export controls and China's WTO compliance. See, notice in the Federal Register, August 16, 2006, Vol. 71, No. 158, at Page 47328. Location: Conference Room 381, Hall of The States, 444 North Capitol St., NW.

Friday, August 25

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its draft [159 pages in PDF] of Special Publication 800-53, Revision 1 (Second Public Draft), titled "Recommended Security Controls for Federal Information Systems".

Monday, August 28

Deadline to submit comments to the Department of Homeland Security (DHS) regarding its proposed rule changes that would amend its United States Visitor and Immigrant Status Indicator Technology (US-VISIT) rules to extend US-VISIT requirements to all aliens with the exception of aliens who are specifically exempted and Canadian citizens applying for admission as B1/B2 visitors for business or pleasure. See, notice in the Federal Register, July 27, 2006, Vol. 71, No. 144, at Pages 42605-42611.

Deadline to submit nominations of individuals for appointment to the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT). See, notice in the Federal Register, August 11, 2006, Vol. 71, No. 155, at Pages 46199-46200.

Tuesday, August 29

LOCATION CHANGE. 10:00 AM. The Internal Revenue Service (IRS) will hold a hearing regarding its notice of proposed rule making pertaining to the application of 26 U.S.C. 199, which provides a deduction for income attributable to domestic production activities, to certain transactions involving computer software. See, notice in the Federal Register, June 1, 2006, Vol. 71, No. 105, at Pages 31128-31129, and notice in the Federal Register, July 31, 2006, Vol. 71, No. 146, at Page 43085. Location: IRS Auditorium (New Carrollton location), 5000 Ellin Road, Lanham, MD.

Wednesday, August 30

Deadline to submit comments to the Internal Revenue Service (IRS) in response to its notice of proposed rule making pertaining to the application of 26 U.S.C. 199, which provides a deduction for income attributable to domestic production activities, to certain transactions involving computer software. See, notice in the Federal Register, June 1, 2006, Vol. 71, No. 105, at Pages 31128-31129.

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