[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1858 Introduced in House (IH)]







106th CONGRESS
  1st Session
                                H. R. 1858

To promote electronic commerce through improved access for consumers to 
     electronic databases, including securities market information 
                               databases.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 19, 1999

   Mr. Bliley (for himself, Mr. Dingell, Mr. Tauzin, Mr. Markey, Mr. 
Oxley, and Mr. Towns) introduced the following bill; which was referred 
                      to the Committee on Commerce

_______________________________________________________________________

                                 A BILL


 
To promote electronic commerce through improved access for consumers to 
     electronic databases, including securities market information 
                               databases.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Consumer and Investor Access to 
Information Act of 1999''.

          TITLE I--COMMERCE IN DUPLICATED DATABASES PROHIBITED

SEC. 101. DEFINITIONS.

    As used in this title:
            (1) Database.--The term ``database'' means a collection of 
        discrete items of information that have been collected and 
        organized in a single place, or in such a way as to be 
        accessible through a single source, through the investment of 
        substantial monetary or other resources, for the purpose of 
        providing access to those discrete items of information by 
        users of the database. However, a discrete section of a 
        database that contains multiple discrete items of information 
        may also be treated as a database.
            (2) Duplicate of a database.--A database is ``a duplicate'' 
        of any other database if the database is substantially the same 
        as such other database, and was made by extracting information 
        from such other database.
            (3) Information.--The term ``information'' means facts, 
        data, or any other intangible material capable of being 
        collected and organized in a systematic way, with the exception 
        of works of authorship.
            (4) Commerce.--The term ``commerce'' means all commerce 
        which may be lawfully regulated by the Congress.
            (5) In competition.--The term ``in competition with'' when 
        used with respect to the sale or distribution of a database to 
        the public means that the database--
                    (A) displaces substantial sales or licenses of the 
                database of which it is a duplicate; and
                    (B) significantly threatens the opportunity to 
                recover a return on the investment in the collecting or 
                organizing of the duplicated database.
            (6) Government database.--The term ``government database'' 
        means a database that--
                    (A) has been collected or maintained by the United 
                States of America, or any agency or instrumentality 
                thereof; or
                    (B) is required by Federal statute or regulation to 
                be collected or maintained, to the extent so required.

SEC. 102. PROHIBITION AGAINST DISTRIBUTION OF DUPLICATES.

    It is unlawful for any person, by any means or instrumentality of 
interstate or foreign commerce or communications, to sell or distribute 
to the public a database that--
            (1) is a duplicate of another database that was collected 
        and organized by another person; and
            (2) is sold or distributed in commerce in competition with 
        that other database.

SEC. 103. PERMITTED ACTS.

    (a) Collecting or Use of Information Obtained Through Other 
Means.--Nothing in this title shall restrict any person from selling or 
distributing to the public a database consisting of information 
obtained by means other than by extracting it from a database collected 
and organized by another person.
    (b) News Reporting.--Nothing in this title shall restrict any 
person from selling or distributing to the public a duplicate of a 
database for the sole purpose of news reporting, including news 
gathering and dissemination, or comment, unless the information 
duplicated is time sensitive and has been collected by a news reporting 
entity, and the sale or distribution is part of a consistent pattern 
engaged in for the purpose of direct competition.
    (c) Law Enforcement and Intelligence Activities.--Nothing in this 
title shall prohibit an officer, agent, or employee of the United 
States, a State, or a political subdivision of a State, or a person 
acting under contract of such officers, agents or employees, from 
selling or distributing to the public a duplicate of a database as part 
of lawfully authorized investigative, protective, or intelligence 
activities.
    (d) Scientific, Educational, or Research Uses.--No person or entity 
who for scientific, educational, or research purposes duplicates the 
same information that has been collected or generated by another person 
or entity shall incur liability under this title so long as such 
conduct is not part of a consistent pattern engaged in for the purpose 
of direct commercial competition with that other person.

SEC. 104. EXCLUSIONS.

    (a) Government Information.--
            (1) Exclusion of government databases.--Protection under 
        section 102 shall not extend to government databases.
            (2) Incorporated nongovernment portions protected.--The 
        incorporation of all or part of a government database into a 
        non-government database does not preclude protection for the 
        portions of the non-government database which came from a 
        source other than the government database.
            (3) Authority to exclude additional government-supported 
        databases.--Nothing in this title shall prevent the Federal 
Government or a State or local government from establishing by law or 
contract that a database, the creation or maintenance of which is 
substantially funded by such Federal, State, or local government, shall 
not be subject to the protection afforded under this title.
    (b) Databases Related to Internet Communications.--Protection under 
section 102 does not extend to a database incorporating information 
collected or organized--
            (1) to perform the function of addressing, routing, 
        forwarding, transmitting, or storing Internet communications; 
        or
            (2) to perform the function of providing or receiving 
        connections for Internet communications.
    (c) Computer Programs.--
            (1) Protection not extended.--Subject to paragraph (2), 
        protection under section 102 shall not extend to computer 
        programs, including any computer program used in the 
        manufacture, production, operation, or maintenance of a 
        database, or any element of a computer program necessary to its 
        operation.
            (2) Incorporated databases.--A database that is otherwise 
        subject to protection under section 102 is not disqualified 
        from such protection solely because it resides in a computer 
        program, so long as the database functions as a database within 
        the meaning of this title and not as an element necessary to 
        the operation of the computer program.
    (d) Nonprotectable Subject Matter.--Protection for databases under 
section 102 does not extend to the sale or distribution to the public 
of a duplicate of any individual idea, fact, procedure, system, method 
of operation, concept, principle, or discovery.
    (e) Subscriber List Information.--Protection for databases under 
section 102 does not extend to subscriber list information within the 
meaning of section 222(f) of the Communications Act of 1934 (47 U.S.C. 
222(f)). Nothing in this subsection shall affect the operation of 
section 222(e) of such Act, under which a telecommunications carrier 
provides, upon request, subscriber list information for the purposes of 
publishing directories in any format under nondiscriminatory and 
reasonable rates, terms, and conditions.

SEC. 105. RELATIONSHIP TO OTHER LAWS.

    (a) Other Rights Not Affected.--Subject to subsection (b), nothing 
in this title shall affect rights, limitations, or remedies concerning 
copyright, or any other rights or obligations relating to information, 
including laws with respect to patent, trademark, design rights, 
antitrust, trade secrets, privacy, access to public documents, misuse, 
and the law of contract.
    (b) Preemption of State Law.--On or after the effective date of 
this Act, no State law that prohibits or that otherwise regulates 
conduct that is subject to the prohibitions specified in section 102 
shall be effective to the extent that such State law is inconsistent 
with section 102.
    (c) Licensing.--Subject to the provisions on misuse in section 
106(b), nothing in this title shall restrict the rights of parties 
freely to enter into licenses or any other contracts with respect to 
the use of information.
    (d) Communications Act of 1934.--Nothing in this title shall affect 
the operation of the Communications Act of 1934 (47 U.S.C. 151 et seq.) 
or the authority of the Federal Communications Commission.

SEC. 106. LIMITATIONS ON LIABILITY.

    (a) Service Provider Liability.--A provider of telecommunications 
services or information services (within the meaning of section 3 of 
the Communications Act of 1934 (47 U.S.C. 153)), or the operator of 
facilities therefor, shall not be liable for a violation of section 102 
if such provider or operator did not initially place the database that 
is the subject of the violation on a system or network controlled by 
such provider or operator.
    (b) Misuse.--A person shall not be liable for a violation of 
section 102 if the person benefiting from the protection afforded a 
database under section 102 misuses the protection. In determining 
whether a person has misused the protection afforded under this title, 
a court shall consider, among other factors--
            (1) the extent to which the ability of persons to engage in 
        the permitted acts under this title has been frustrated by 
        contractual arrangements or technological measures;
            (2) the extent to which information contained in a database 
        that is the sole source of the information contained therein is 
        made available through licensing or sale on reasonable terms 
        and conditions;
            (3) the extent to which the license or sale of information 
        contained in a database protected under this title has been 
        conditioned on the acquisition or license of any other product 
        or service, or on the performance of any action, not directly 
        related to the license or sale;
            (4) the extent to which access to information necessary for 
        research, competition, or innovation purposes has been 
        prevented;
            (5) the extent to which the manner of asserting rights 
        granted under this title constitutes a barrier to entry into 
        the relevant database market; and
            (6) the extent to which the judicially developed doctrines 
        of misuse in other areas of the law may appropriately be 
        extended to the case or controversy.

SEC. 107. ENFORCEMENT.

    (a) Use of Federal Trade Commission Act Authority.--The Federal 
Trade Commission shall have jurisdiction, under section 5 of the 
Federal Trade Commission Act (15 U.S.C. 45), to prevent violations of 
section 102 of this title.
    (b) Rulemaking Authority.--The Federal Trade Commission may, 
pursuant to subparagraph (A) or (B) of section 18(a) of the Federal 
Trade Commission Act (15 U.S.C. 57a(a)), but without regard to the 
limitations contained in section 18(b)(3) of such Act, prescribe rules 
to implement this title.
    (c) Enforcement.--Any violation of any rule prescribed under 
subsection (b) shall be treated as a violation of a rule respecting 
unfair or deceptive acts or practices under section 5 of the Federal 
Trade Commission Act (15 U.S.C. 45). Notwithstanding section 5(a)(2) of 
such Act (15 U.S.C. 45(a)(2)), communications common carriers shall be 
subject to the jurisdiction of the Federal Trade Commission for 
purposes of this title.
    (d) Actions by the Commission.--The Federal Trade Commission shall 
prevent any person from violating section 102 or a rule of the 
Commission under subsection (b) of this section in the same manner, by 
the same means, and with the same jurisdiction, powers, and duties as 
though all applicable terms and provisions of the Federal Trade 
Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a 
part of this title. Any person who violates section 102 or such rule 
shall be subject to the penalties and entitled to the privileges and 
immunities provided in the Federal Trade Commission Act in the same 
manner, by the same means, and with the same jurisdiction, power, and 
duties as though all applicable terms and provisions of the Federal 
Trade Commission Act were incorporated into and made a part of this 
title.

SEC. 108. REPORT TO CONGRESS.

    Not later than 36 months after the date of enactment of this title, 
the Federal Trade Commission shall report to the Congress on the effect 
this title has had on electronic commerce and on the United States 
database industry and related parties, including--
            (1) the availability of databases, search engines, and 
        other tools for locating information necessary for electronic 
        commerce;
            (2) the extent of competition between database producers, 
        including the concentration of market power within the database 
        industry;
            (3) the investment in the development and maintenance of 
        databases, including changes in the number and size of 
        databases;
            (4) the availability of information to industries and 
        researchers which rely upon such availability;
            (5) whether in the period after enactment of this title 
        database producers have faced unfair competition, particularly 
        from publishers in the European Union; and
            (6) the extent to which extraction of information from 
        databases, to a degree insufficient to result in liability 
        under section 102, is harming database producers' incentive to 
        collect and organize databases.

SEC. 109. EFFECTIVE DATE.

    This title shall take effect on the date of the enactment of this 
Act, and shall apply to the sale or distribution after that date of a 
database that was collected and organized after that date.

                TITLE II--SECURITIES MARKET INFORMATION

SEC. 201. MISAPPROPRIATION OF REAL-TIME MARKET INFORMATION.

    Section 11A of the Securities Exchange Act of 1934 (15 U.S.C. 78k-
1) is amended by adding at the end the following new subsection:
    ``(e) Misappropriation of Real-Time Market Information.--
            ``(1) Prohibition against misappropriation.--Subject to 
        paragraphs (3), (4), and (5), any person who--
                    ``(A) obtains directly or indirectly from a market 
                information processor real-time market information, and
                    ``(B) directly or indirectly sells, distributes or 
                redistributes, or otherwise disseminates such real-time 
                market information, without the authorization of the 
                market information processor,
        shall be liable to that market information processor for the 
        remedies set forth in paragraph (2).
            ``(2) Civil remedies.--
                    ``(A) Civil actions.--Any person who is injured by 
                a violation of paragraph (1) may bring a civil action 
                for such a violation in an appropriate United States 
                district court, except that any action against a State 
                governmental entity may be brought in any court that 
                has jurisdiction over claims against such entity.
                    ``(B) Temporary and permanent injunctions.--Any 
                court having jurisdiction of a civil action under this 
                subsection shall have the power to grant temporary and 
                permanent injunctions, according to the principles of 
                equity and upon such terms as the court may deem 
                reasonable, to prevent a violation of paragraph (1).
                    ``(C) Monetary relief.--When a violation of 
                paragraph (1) has been established in any civil action 
                arising under this subsection, the plaintiff shall be 
                entitled to recover any damages sustained by the 
                plaintiff.
                    ``(D) Disgorgement.--When a violation of paragraph 
                (1) has been established, if the plaintiff is not able 
                to prove recoverable damages to the full extent of the 
                defendant's monetary gain directly attributable to the 
                violation, the court, in its equitable discretion, may 
                order the defendant to disgorge the amount of such 
                monetary gain to the plaintiff.
            ``(3) Permitted acts.--
                    ``(A) Gathering or use of real-time market 
                information independently obtained.--Nothing in this 
                subsection shall restrict any person from independently 
                gathering real-time market information, or from 
                redistributing or disseminating such independently 
                gathered information.
                    ``(B) News reporting.--Nothing in this subsection 
                shall restrict any news reporting entity from 
                extracting real-time market information for the sole 
                purpose of news reporting, including news gathering, 
                dissemination, and comment, unless the extraction is 
                part of a consistent pattern of competing with a market 
                information processor in the distribution of real-time 
                market information.
            ``(4) Relationship to other laws.--
                    ``(A) Preemption.--Subject to subparagraphs (B), 
                (C), and (D), on and after the date of enactment of 
                this subsection, this section--
                            ``(i) shall exclusively govern the 
                        unauthorized extraction, sale, distribution or 
                        redistribution, or other dissemination of real-
                        time market information; and
                            ``(ii) shall supersede any other Federal or 
                        State law (either statutory or common law) to 
                        the extent that such other Federal or State law 
                        is inconsistent with this section.
                    ``(B) Federal securities laws.--Nothing in this 
                subsection shall be construed--
                            ``(i) to limit or otherwise affect the 
                        application of any provision of the securities 
                        laws (as defined in section 3(a)(47)), or the 
                        rules and regulations thereunder; or
                            ``(ii) to impair or limit the authority of 
                        the Commission.
                    ``(C) Antitrust.--Nothing in this subsection shall 
                limit in any way the constraints that are imposed by 
                Federal and State antitrust laws on the manner in which 
                products and services may be provided to the public, 
                including those regarding single suppliers of products 
                and services.
                    ``(D) Licensing.--Nothing in this subsection shall 
                restrict the rights of parties freely to enter into 
                licenses or any other contracts with respect to the 
                extraction, sale, distribution or redistribution, or 
                other dissemination of real-time market information.
            ``(5) Limitations on actions.--
                    ``(A) Civil actions.--No civil action shall be 
                maintained under this subsection unless it is commenced 
                within one year after the cause of action arises or 
                claim accrues.
                    ``(B) Additional limitation.--No civil action shall 
                be maintained under this subsection for the extraction, 
                sale, distribution or redistribution, or other 
                dissemination of market information that is not real-
                time market information.
                    ``(C) Persons subject to contractual remedies.--No 
                civil action shall be maintained under this subsection 
                by a market information processor against any person to 
                whom such processor provides real-time market 
                information pursuant to a contract or agreement between 
                such processor and such person with respect to any 
                real-time market information or any rights or remedies 
                provided pursuant to such contract or agreement.
            ``(6) Definitions.--As used in this subsection:
                    ``(A) Market information.--The term `market 
                information' means information--
                            ``(i) with respect to quotations and 
                        transactions in any security; and
                            ``(ii) the collection, processing, 
                        distribution, and publication of which is 
                        subject to this title.
                    ``(B) Real-time market information.--Taking into 
                account the present state of technology, different 
                types of market data, how market participants use 
                market data, and other relevant factors, the Commission 
                may, consistent with the protection of investors and 
                the public interest, prescribe by rule the extent to 
                which market information shall be considered to be 
                real-time market information for purposes of this 
                subsection.
                    ``(C) Market information processor.--The term 
                `market information processor' with respect to any 
                market information means the securities exchange, self-
                regulatory organization, securities information 
                processor, or national market system plan administrator 
                that is responsible under this title or the rules or 
                regulations thereunder, for the collection, processing, 
                distribution, and publication of, or preparing for 
                distribution or publication, such market 
                information.''.

SEC. 202. EFFECTIVE DATE.

    (a) In General.--The amendment made by section 201 shall take 
effect on the date of the enactment of this Act, and shall apply to 
acts committed on or after that date.
    (b) Prior Acts Not Affected.--No person shall be liable under 
section 11A(e) of the Securities Exchange Act of 1934 (15 U.S.C. 78k-
1(e)), as added by section 201 of this Act, for the extraction, sale, 
distribution or redistribution, or other dissemination of real-time 
market information prior to the date of enactment of this Act, by that 
person or by that person's predecessor in interest.
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