[Congressional Record Volume 141, Number 153 (Thursday, September 28, 1995)]
[Senate]
[Pages S14547-S14553]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. KERRY (for himself and Mr. Kennedy):
S. 1281. A bill to authorize the Secretary of Transportation to issue
a certificate of documentation with appropriate endorsement for
employment in coastwise trade for the vessel Sarah-Christen; to the
Committee on Commerce, Science, and Transportation.
jones act waiver legislation
Mr. KERRY. Mr. President, I am pleased to join my colleague,
the distinguished senior Senator from Massachusetts, in introducing a
bill to allow the vessel Sarah-Christen to be employed in coastwise
trade of the United States. This boat has a small passenger capacity,
carrying up to 12 passengers in a charter business. The purpose of this
bill is to waive those sections of the Jones Act which prohibit
foreign-made vessels from operating in coastwise trade. The waiver is
necessary because, under the law, a vessel is not considered built in
the United States unless all major components of its hull and
superstructures are fabricated in the United States, and the vessel is
assembled entirely in the United States. This vessel was originally
built in a foreign shipyard in 1971, but since then has been owned and
operated by American citizens, repaired in American shipyards, and
maintained with American products. The owner of the vessel simply
wishes to start a small business, a charter boat operation, seasonally
taking people out for cruises.
After reviewing the facts in the case of the Sarah-Christen, I find
that this wavier does not compromise our national readiness in times of
national emergency, which is the fundamental purpose of the Jones Act
requirement. While I generally support the provisions of the Jones Act,
I believe the specific facts in this case warrant a waiver to permit
the Sarah-Christen to engage in coastwise trade. These include the
facts the vessel is more than 20 years old, the owner has invested
significant funds in vessel maintenance and restoration in the United
States, and the vessel has a relatively small passenger-carrying
capacity. I hope and trust the Senate will agree and will speedily
approve the bill being introduced today.
______
By Mr. KERRY (for himself and Mr. Kennedy):
S. 1282. A bill to authorize the Secretary of Transportation to issue
a certificate of documentation with appropriate endorsement for
employment in coastwise trade for the vessel Triad; to the Committee on
Commerce, Science, and Transportation.
JONES ACT WAIVER LEGISLATION
Mr. KERRY. Mr. President, I am pleased to join my colleague,
the distinguished senior Senator from Massachusetts, in introducing a
bill to allow the vessel Triad to be employed in coastwise trade of the
United States. This boat has a small passenger capacity, carrying up to
6 passengers in a charter business. The purpose of this bill is to
waive those sections of the Jones Act which prohibit foreign-made
vessels from operating in coastwise trade. The waiver is necessary
because, under the law, a vessel is not considered built in the United
States unless all major components of its hull and superstructure are
fabricated in the United States, and the vessel is assembled entirely
in the United States. This vessel was originally built in a foreign
shipyard in 1982, but since 1992 it has been owned and operated by
American citizens, repaired in American shipyards, and maintained with
American products. The owner of the vessel now wishes to start a small
business, a charter boat operation, seasonally taking people out for
cruises.
After reviewing the facts in the case of the Triad I find that this
waiver would not compromise our national readiness in times of national
emergency, which is the fundamental purpose of the Jones Act
requirement. While I generally support the provisions of the Jones Act,
I believe the specific facts in this case warrant a waiver to permit
the Triad to engage in coastwise trade. These include the facts the
vessel is more than 10 years old, the owner has invested significant
funds in vessel maintenance and restoration in the United States and
the vessel has a relatively small passenger-carrying capacity. I hope
and trust the Senate will agree and will speedily approve the bill
being introduced today.
______
By Mr. McCONNELL:
S. 1283. A bill to authorize the Secretary of Agriculture to regulate
the commercial transportation of horses, and for other purposes; to the
Committee on Agriculture, Nutrition, and Forestry.
the humane methods of livestock slaughter act amendments act of 1995
Mr. McCONNELL. Mr. President, last year I introduced
legislation amending the Federal Humane Methods of Livestock Slaughter
Act to regulate the commercial transportation of horses to slaughter
facilities. After considerable discussion and much mail on this
important issue, I have made several modifications to the original
bill. Today, I am introducing legislation that will provide greater
oversight and
[[Page S 14548]]
integrity concerning the commercial transportation of horses to
slaughter facilities.
I am pleased that my bill is supported by the American Horse Council,
and the American Horse Protection Association. Other organizations that
support this legislation include the American Association of Equine
Practitioners, the American Humane Association, the American Society
for Prevention of Cruelty to Animals, and the Humane Society of the
United States.
Currently, some horses are being transported for long periods in
overcrowded conditions without rest, food, or water. Some vehicles used
for transport have inadequate headroom and are not intended to
transport large animals. Further, some of the horses transported have
serious injuries which can be severely aggravated by the journey. This
legislation would give the Secretary of Agriculture the authority to
correct these practices by regulating those in the business of
transporting horses to processing facilities.
I want to make it clear that it is not my intention to either promote
or prevent the commercial slaughter of horses. This industry has been
in existence for a long time in this country, and I expect that it will
continue to operate long into the future. My purpose in this
legislation is to protect horses from unduly harsh and unpleasant
treatment as they are transported across the country.
Horses occupy a central role in the traditions, history, and economy
of Kentucky. Thousands of Kentuckians are employed either directly or
indirectly by the horse industry. Horses have been good to Kentucky;
and we should try to the maximum practical extent to be good to horses.
This bill would require that horses be rested off the vehicle after
24 hours, with access to food and water. Vehicles used to transport the
horses would have to have adequate headroom and interiors free of sharp
edges. Transporting vehicles must be maintained in a sanitary
condition, offer adequate ventilation and shelter from extremes of heat
and cold, be large enough for the number of horses transported, and
allow for the position of horses by size, with stallions segregated
from other horses. Finally, in order to be transported, horses must be
physically fit to travel.
Enforcement of the Act is placed with the U.S. Department of
Agriculture, which presently regulates the slaughter process itself
under the Humane Methods of Slaughter Act. The Department would be
authorized to work with State and local authorities to enforce the
provisions of this bill. This bill, while correcting abuses that exist,
will not be an excessive burden on the processing facilities, auctions,
or the commercial transporters of these horses.
Unlike other livestock, the transportation of horses to processing
facilities is often a lengthy process, because there are fewer
facilities that handle horses and they are located in only a few areas.
Moreover, not all of them operate on a full-time basis. The result is
that the transporting of these animals requires special protection.
There are several States that have passed legislation to regulate the
transportation of these horses, but most of the travel is interstate,
across wide areas. This is why Federal legislation is needed. The
shipment of horses over long distances in inappropriate trailers,
without food or water, is unacceptable. This bill would extend Federal
regulation to the commercial transport of horses to slaughter and
assure the humane and safe conditions of that transport.
I invite all groups that are concerned about these horses to work
with me in passing this legislation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1283
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 ``Safe Commercial
Transportation of Horses for Slaughter Act of 1995''.
SEC. 2. COMMERCIAL TRANSPORTATION OF HORSES FOR SLAUGHTER.
Public Law 85-765 (7 U.S.C. 1901 et seq.) is amended by
adding at the end the following:
``TITLE II--COMMERCIAL TRANSPORTATION OF HORSES FOR SLAUGHTER
``SEC. 201. FINDINGS.
``Congress finds that, to ensure that horses sold for
slaughter are provided human treatment and care, it is
essential to regulate the transportation, care, handling, and
treatment of horses by any person engaged in the commercial
transportation of horses for slaughter.
``SEC. 202. DEFINITIONS.
``In this title:
``(1) Commerce.--The term `commerce' means trade, traffic,
transportation, or other commerce--
``(A) between any State, territory, or possession of the
United States, or the District of Columbia, and any place
outside thereof;
``(B) between points within the same State, territory, or
possession of the United States, or the District of Columbia,
but through any place outside thereof; or
``(C) within any territory or possession of the United
States or the District of Columbia.
``(2) Department.--The term `Department' means the United
States Department of Agriculture.
``(3) Equine.--The term `equine' includes any member of the
Equidae family.
``(4) Foal.--The term `foal' means a horse that is not more
than 6 months of age.
``(5) Horse.--The term `horse' includes any member of the
Equidae family.
``(6) Horse for slaughter.--The term `horse for slaughter'
means any horse that is transported, or intended to be
transported, to a slaughter facility or intermediate handler
from a sale, auction, or intermediate handler by a person
engaged in the business of transporting horses for slaughter.
``(7) Intermediate handler.--The term `intermediate
handler' means any person engaged in the business of
receiving custody of horses for slaughter in connection with
the transport of the horses to a slaughter facility,
including a stockyard, feedlot, or assembly point.
``(8) Person.--The term `person' includes any individual,
partnership, firm, company, corporation, or association.
``(9) Secretary.--The term `Secretary' means the Secretary
of Agriculture.
``(10) Vehicle.--The term `vehicle' means any machine,
truck, tractor, trailer, or semitrailer, or any combination
thereof, propelled or drawn by mechanical power and used on a
highway in the commercial transportation of horses for
slaughter.
``(11) Stallion.--The term `stallion' means any uncastrated
male horse that is 1 year of age or older.
``SEC. 203. STANDARDS FOR HUMANE COMMERCIAL TRANSPORTATION OF
HORSES FOR SLAUGHTER.
``(a) In General.--Not later than 180 days after the date
of enactment of this title, the Secretary shall issue, by
regulation, standards for the humane commercial
transportation of horses for slaughter.
``(b) Prohibition.--No person shall transport in commerce,
to a slaughter facility or intermediate handler, a horse for
slaughter except in accordance with the standards and this
title.
``(c) Minimum Requirements.--The standards shall include
minimum requirements for the humane handling, care,
treatment, and equipment necessary to ensure the safe and
humane transportation of horses for slaughter. The standards
shall require, at a minimum, that--
``(1) no horse for slaughter shall be transported for more
than 24 hours without being unloaded from the vehicle and
allowed to rest for at least 8 consecutive hours and given
access to adequate quantities of wholesome food and potable
water;
``(2) a vehicle shall provide adequate headroom for a horse
for slaughter with a minimum of at least 6 feet, 6 inches of
headroom from the roof and beams or other structural members
overhead to floor underfoot, except that a vehicle
transporting 6 horses or less shall provide a minimum of at
least 6 feet of headroom from the roof and beams or other
structural members overhead to floor underfoot if none of the
horses are over 16 hands;
``(3) the interior of a vehicle shall--
``(A) be free of protrusions, sharp edges, and harmful
objects;
``(B) have ramps and floors that are adequately covered
with a nonskid nonmetallic surface; and
``(C) be maintained in a sanitary condition;
``(4) a vehicle shall--
``(A) provide adequate ventilation and shelter from
extremes of weather and temperature for all equine;
``(B) be of appropriate size, height, and interior design
for the number of equine being carried to prevent
overcrowding; and
``(C) be equipped with doors and ramps of sufficient size
and location to provide for safe loading and unloading,
including unloading during emergencies;
``(5)(A) horses shall be positioned in the vehicle by size;
and
``(B) stallions shall be segregated from other horses;
``(6)(A) all horses for slaughter must be fit to travel as
determined by an accredited large animal veterinarian, who
shall prepare a certificate of inspection, prior to loading
for transport, that--
``(i) states that the horses were inspected and satisfied
the requirements of subparagraph (B);
``(ii) includes a clear description of each horse; and
[[Page S 14549]]
``(iii) is valid for 7 days;
``(B) no horse shall be transported to slaughter if the
horse is found to be--
``(i) suffering from a broken or dislocated limb;
``(ii) unable to bear weight on all 4 limbs;
``(iii) blind in both eyes; or
``(iv) obviously suffering from severe illness, injury,
lameness, or physical debilitation that would make the horse
unable to withstand the stress of transportation;
``(C) no foal may be transported for slaughter;
``(D) no mare in foal that exhibits signs of impending
partition may be transported for slaughter; and
``(E) no horse for slaughter shall be accepted by a
slaughter facility unless the horse is accompanied by a
certificate of inspection issued by an accredited large
animal veterinarian, not more than 7 days before the
delivery, stating that the veterinarian inspected the horse
on a specified date.
``SEC. 204. RECORDS.
``(a) In General.--A person engaged in the business of
transporting horses for slaughter shall establish and
maintain such records, make such reports, and provide such
information as the Secretary may, by regulation, require for
the purposes of carrying out, or determining compliance with,
this subtitle.
``(b) Minimum Requirements.--The records shall include, at
a minimum--
``(1) the veterinary certificate of inspection;
``(2) the names and addresses of current owners and
consignors, if applicable, of the horses at the time of sale
or consignment to slaughter; and
``(3) the bill of sale or other documentation of sale for
each horse.
``(c) Availability.--The records shall--
``(1) accompany the horses during transport to slaughter;
``(2) be retained by any person engaged in the business of
transporting horses for slaughter for a reasonable period of
time, as determined by the Secretary; and
``(3) on request of an officer or employee of the
Department, be made available at all reasonable times for
inspection and copying by the officer or employee.
``SEC. 205. AGENTS.
``(a) In General.--For purposes of this title, the act,
omission, or failure of an individual acting for or employed
by a person engaged in the business of transporting horses
for slaughter, within the scope of the employment or office
of the individual, shall be considered the act, omission, or
failure of the person engaging in the commercial
transportation of horses for slaughter as well as of the
individual.
``(b) Assistance.--If a horse suffers a substantial injury
or illness while being transported for slaughter on a
vehicle, the driver of the vehicle should seek prompt
assistance from a large animal veterinarian.
``SEC. 206. COOPERATIVE AGREEMENTS.
``Not later than 180 days after the date of enactment of
this title, the Secretary shall, to the maximum extent
practicable, establish cooperative agreements and enter into
memoranda of agreement with appropriate Federal and State
agencies or political subdivisions of the agencies, including
State departments of agriculture, State law enforcement
agencies, and foreign governments, to carry out and enforce
this title.
``SEC. 207. INVESTIGATIONS AND INSPECTIONS.
``(a) In General.--The Secretary shall make such
investigations or inspections as the Secretary considers
necessary--
``(1) to enforce this title (including any regulation
issued under this title); and
``(2) pursuant to information regarding alleged violations
of this title provided to the Secretary by a State official
or any other person.
``(b) Access.--For the purposes of conducting an
investigation or inspection under subsection (a), the
Secretary shall, at all reasonable times, have access to--
``(1) the place of business of any person engaged in the
business of transporting horses for slaughter;
``(2) the facilities and vehicles used to transport the
horses; and
``(3) records required to be maintained under section 204.
``(c) Minimum Requirement.--An investigation or inspection
shall include, at a minimum, an inspection by an employee of
the Department of all horses and vehicles carrying horses, on
the arrival of the horses and vehicles at the slaughter
facility.
``(d) Assistance to or Destruction of Horses.--The
Secretary shall issue such regulations as the Secretary
considers necessary to permit employees or agents of the
Department to--
``(1) provide assistance to any horse that is covered by
this title (including any regulation issued under this
title); or
``(2) destroy, in a humane manner, any such horse found to
be suffering.
``SEC. 208. INTERFERENCE WITH ENFORCEMENT.
``(a) In General.--Subject to subsection (b), a person who
forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with any person while engaged in or on account of
the performance of an official duty of the person under this
title shall be fined not more than $5,000 or imprisoned not
more than 3 years, or both.
``(b) Weapons.--If the person uses a deadly or dangerous
weapon in connection with an action described in subsection
(a), the person shall be fined not more than $10,000 or
imprisoned not more than 10 years, or both.
``SEC. 209. JURISDICTION OF COURTS.
``Except as provided in section 210(a)(5), a district court
of the United States in any appropriate judicial district
under section 1391 of title 28, United States Court, shall
have jurisdiction to specifically enforce this title, to
prevent and restrain a violation of this title, and to
otherwise enforce this title.
``SEC. 210. CIVIL AND CRIMINAL PENALTIES.
``(a) Civil Penalties.--
``(1) In general.--A person who violates this title
(including a regulation or standard issued under this title)
shall be assessed a civil penalty by the Secretary of not
more than $2,000 for each violation.
``(2) Separate offenses.--Each horse transported in
violation of this title shall constitute a separate offense.
Each violation and each day during which a violation
continues shall constitute a separate offense.
``(3) Hearings.--No penalty shall be assessed under this
subsection unless the person who is alleged to have violated
this title is given notice and opportunity for a hearing with
respect to an alleged violation.
``(4) Final order.--An order of the Secretary assessing a
penalty under this subsection shall be final and conclusive
unless the aggrieved person files an appeal from the order
pursuant to paragraph (5).
``(5) Appeals.--Not later than 30 days after entry of a
final order of the Secretary issued pursuant to this
subsection, a person aggrieved by the order may seek review
of the order in the appropriate United States Court of
Appeals. The Court shall have exclusive jurisdiction to
enjoin, set aside, suspend (in whole or in part), or to
determine the validity of the order.
``(6) Nonpayment of penalty.--On a failure to pay the
penalty assessed by a final order under this section, the
Secretary shall request the Attorney General to institute a
civil action in a district court of the United States or
other United States court for any district in which the
person is found, resides, or transacts business, to collect
the penalty. The court shall have jurisdiction to hear and
decide the action.
``(b) Criminal Penalties.--
``(1) First offense.--Subject to paragraph (2), a person
who knowingly violates this title (or a regulation or
standard issued under this title) shall, on conviction of the
violation, be subject to imprisonment for not more than 1
year or a fine of not more than $2,000, or both.
``(2) Subsequent offenses.--On conviction of a second or
subsequent offense described in paragraph (1), a person shall
be subject to imprisonment for not more than 3 years or to a
fine of not more than $5,000, or both.
``SEC. 211. PAYMENTS FOR TEMPORARY OR MEDICAL ASSISTANCE FOR
HORSES DUE TO VIOLATIONS.
``From sums received as penalties, fines, or forfeitures of
property for any violation of this title (including a
regulation issued under this title), the Secretary shall pay
the reasonable and necessary costs incurred by any person in
providing temporary care or medical assistance for any horse
that needs the care or assistance due to a violation of this
title.
``SEC. 212. RELATIONSHIP TO STATE LAW.
``Nothing in this title prevents a State from enacting or
enforcing any law (including a regulation) that is not
inconsistent with this title or that is more restrictive than
this title.
``SEC. 213. AUTHORIZATION OF APPROPRIATIONS.
``There is authorized to be appropriated for each fiscal
year such sums as are necessary to carry out this title.''.
SEC. 3. CONFORMING AMENDMENTS.
(a) The first section of Public Law 85-765 (7 U.S.C. 1901)
is amended by striking ``That the Congress'' and inserting
the following:
``SEC. 1. SHORT TITLE.
``This Act may be cited as the `Federal Humane Methods of
Livestock Slaughter Act'.
``TITLE I--HUMANE METHODS OF LIVESTOCK SLAUGHTER
``SEC. 101. FINDINGS AND DECLARATION OF POLICY.
``Congress''.
(b) Section 2 of the Federal Humane Methods of Livestock
Slaughter Act (7 U.S.C. 1902) is amended by striking ``Sec.
2. No'' and inserting the following:
``SEC. 102. HUMANE METHODS.
``No''.
(c) Section 4 of the Act (7 U.S.C. 1904) is amended by
striking ``Sec. 4. In'' and inserting the following:
``SEC. 103. METHODS RESEARCH.
``In''.
(d) Section 6 of the Act (7 U.S.C. 1906) is amended by
striking ``Sec. 6. Nothing'' and inserting the following:
``SEC. 104. EXEMPTION OF RITUAL SLAUGHTER.
``Nothing''.
SEC. 4. EFFECTIVE DATE.
(a) In General.--This Act and the amendments made by this
Act shall become effective 180 days after the date of
enactment of this Act.
(b) Regulations.--As soon as practicable, but not later
than 180 days after the date of enactment of this Act, the
Secretary of Agriculture shall issue such regulations as the
Secretary determines are necessary to implement this Act and
the amendments made by this Act.
(c) Compliance.--A person shall be required to comply
with--
(1) sections 203 and 204 of the Federal Humane Methods of
Livestock Slaughter Act (as added by section 2) beginning on
the date
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that is 180 days after the date of enactment of this Act; and
(2) other sections of title II of the Act beginning on the
date that is 90 days after the Secretary issues final
regulations under subsection (b).
______
By Mr. HATCH (for himself and Mr. Leahy):
S. 1284. A bill to amend title 17 to adapt the copyright to the
digital, networked environment of the National Information
Infrastructure, and for other purposes; to the Committee on the
Judiciary.
the national information infrastructure copyright protection act
Mr. HATCH. Mr. President, today, together with my distinguished
colleague from Vermont, Senator Leahy, I am introducing the National
Information Infrastructure Copyright Protection Act of 1995, which
amends the Copyright Act to bring it up to date with the digital
communications age.
The National Information Infrastructure or ``NII'' is a fancy name
for what is popularly known as the ``information highway.'' Probably
most people today experience the information highway by means of their
computers when they use electronic mail or subscribe to a bulletin
board service or use other on-line services. But these existing
services are only dirt roads compared to the superhighway of
information-sharing which lies ahead.
The NII of the future will link not only computers, but also
telephones, televisions, radios, fax machines, and more into an
advanced, high-speed, interactive, broadband, digital communications
system. Over this information superhighway, data, text, voice, sound,
and images will travel, and their digital format will permit them not
only to be viewed or heard, but also to be copied and manipulated. The
digital format will also ensure that copies will be perfect
reproductions, without the degradation that normally occurs today when
audio and videotapes are copied.
The NII has tremendous potential to improve and enhance our lives, by
providing quick, economical, and high-quality access to information
that educates and entertains as well as informs. When linked up to a
``Global Information Infrastructure,'' the NII will broaden our
cultural experiences, and allow American products to be more widely
disseminated.
Highways, of course, are meant to be used, and in order to be used,
they must be safe. That's why we have ``rules of the road'' on our
asphalt highways and that's why we need rules for our digital highway.
No manufacturer would ship his or her goods on a highway if his trucks
were routinely hijacked and his or her goods plundered. Likewise, no
producer of intellectual property will place his or her works on the
information superhighway if they are routinely pirated. We might end up
having enormous access to very little information, unless we can
protect property rights in intellectual works. The piracy problem is
particularly acute in the digital age where perfect copies can be made
quickly and cheaply.
Protecting the property rights of the owners of intellectual property
not only induces them to make their products available, it also
encourages the creation of new products. Our copyright laws are based
on the conviction that creativity increases when authors can reap
benefits of their creative activity.
But the NII also promises to increase creativity in a more dramatic
way by providing individual creators with public distribution of their
works outside traditional channels. For example, authors who have been
unsuccessful in finding a publisher will be able to distribute their
works themselves to great numbers of people at very low cost.
The bill that I am introducing today begins the process of designing
the rules of the road for the information superhighway. It was drafted
by the Working Group on Intellectual Property Rights of the Information
Infrastructure Task Force. Chaired by the Honorable Bruce A Lehman,
Assistant Secretary of Commerce and Commissioner of Patents and
Trademarks, the Working Group labored for 2 years examining the
intellectual property implications of the NII to determine if changes
were necessary to intellectual property law and to recommend
appropriate statutory language.
The Working Group drew upon the expertise of 26 departments and
agencies of the Federal Government; it heard the testimony of 30
witnesses and received some 70 written statements from all interested
parties. On July 7, 1994, it produced a preliminary draft (``Green
Paper''), which opened another period of extensive testimony and
comment. The Final Report, containing a draft of the legislation that I
am introducing today, was unveiled on September 5, 1995.
The length and scope of the Working Group's investigation would alone
commend its recommendations to serious attention, but I have also
studied the legislation and find it an excellent basis for the
Committee on the Judiciary to begin its own examination of the issues
with a view to fine-tuning the solutions proposed by the Working Group.
The bill deals with five major areas:
(1) transmission of copies,
(2) exemptions for libraries and the visually impaired,
(3) copyright protection systems,
(4) copyright management information, and
(5) remedies.
In general, the bill provides as follows:
Transmission of Copies. The bill makes clear that the right of public
distribution in the Copyright Act applies to transmission of copies and
phonorecords of copyrighted works. For example, this means that
transmitting a copy of a computer program from one computer to ten
other computers without permission of the copyright owner would
ordinarily be an infringement.
Exemptions for Libraries and the Visually Impaired. The bill amends
the current exemption for libraries to allow the preparation of three
copies of works in digital format, and it authorizes the making of a
limited number of digital copies by libraries and archives for purposes
of preservation.
The bill adds a new exemption for non-profit organizations to
reproduce and distribute to the visually impaired--at cost--Braille,
large type, audio or other editions of previously published literary
works, provided that the owner of the exclusive right to distribute the
work in the United States has not entered the market for such editions
during the first year following first publication.
Copyright Protection Systems. The bill adds a new section which
prohibits the importation, manufacture or distribution of any device or
product, or the provision of any service, the primary purpose or effect
of which is to deactivate any technological protections which prevent
or inhibit the violation of exclusive rights under the copyright law.
Copyright Management Information. ``Copyright management
information'' is information that identifies the author of the work,
the copyright owner, the terms and conditions for uses of the work, and
other information that the Register of Copyrights may prescribe. The
bill prohibits the dissemination of copyright management information
known to be false and the unauthorized removal or alteration of
copyright management information.
Remedies. The bill provides for civil penalties for circumvention of
copyright protection systems and for tampering with copyright
management information, including injunction, impoundment, actual or
statutory damages, costs, attorney's fees, and the modification or
destruction of products and devices.
The bill provides criminal penalties for tampering with copyright
management information--a fine of not more than $500,000 or
imprisonment of not more than 5 years or both.
There is widespread support for the general thrust of the bill among
interested parties. However, during the hearing process, I am sure that
issues will arise that no one has yet anticipated. Already, some
potential discussion points have been identified: the scope of the
library exemption and the exemption for the visually impaired, the
absence of criminal penalties for circumvention of copyright protection
systems, the use of encryption as a copyright protection system, the
application of the doctrine of fair use, the development of efficient
licensing models, and the liability of on-line service providers.
In the interest of time, it may be that fuller discussion and
solution may
[[Page S 14551]]
have to be deferred for those points not covered expressly in the bill.
The fully commercial information superhighway is not yet here, and we
must resign ourselves to a period of experimentation. We want to be on
the cutting edge, not the bleeding edge of new technology.
Once again, I would like to commend the Working Group on Intellectual
Property Rights of the Information Infrastructure Task Force for
providing an excellent model for us to work with. I also recommend to
all interested parties that they read the full report of the Working
Group. Without endorsing any of the specific language of that report, I
believe that it provides useful background material for the recommended
changes.
In conclusion, Mr. President, I would like to thank my colleague from
Vermont, Senator Leahy, for joining me in introducing this important
legislation.
Mr. President, I ask unanimous consent that a copy of this bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1284
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 ``NII Copyright Protection Act
of 1995''.
SEC. 2. TRANSMISSION OF COPIES.
(a) Distribution.--Section 106(3) of title 17, United
States Code, is amended by striking ``or by rental, lease, or
lending'' and inserting ``by rental, lease, or lending, or by
transmission''.
(b) Definitions.--Section 101 of title 17, United States
Code, is amended--
(1) in the definition of ``publication'' by striking ``or
by rental, lease, or lending'' in the first sentence and
insert ``by rental, lease, or lending, or by transmission'';
and
(2) in the definition of ``transmit'' by inserting at the
end thereof the following: ``To `transmit' a reproduction is
to distribute it by any device or process whereby a copy or
phonorecord of the work is fixed beyond the place from which
it was sent.''.
(c) Importation.--Section 602 of title 17, United States
Code, is amended by inserting ``whether by carriage of
tangible goods or by transmission,'' after ``Importation into
the United States,''.
SEC. 3. EXEMPTIONS FOR LIBRARIES AND THE VISUALLY IMPAIRED.
(a) Libraries.--Section 108 of title 17, United States
Code, is amended--
(1) in subsection (a) by deleting ``one copy or
phonorecord'' and inserting in lieu thereof ``three copies or
phonorecords'';
(2) in subsection (a) by deleting ``such copy or
phonorecord'' and inserting in lieu thereof ``no more than
one of such copies or phonorecords'';
(3) by inserting at the end of subsection (a)(3) ``if such
notice appears on the copy or phonorecord that is reproduced
under the provisions of this section'';
(4) in subsection (b) by inserting ``or digital'' after
``facsimile'' and by inserting ``in facsimile form'' before
``for deposit for research use''; and
(5) in subsection (c) by inserting ``or digital'' after
``facsimile''.
(b) Visually Impaired.--Title 17, United States Code, is
amended by adding the following new section:
``Sec. 108A. Limitations on exclusive rights: Reproduction
for the Visually Impaired
``Notwithstanding the provision of section 106, it is not
an infringement of copyright for a non-profit organization to
reproduce and distribute to the visually impaired, at cost, a
Braille, large type, audio or other edition of a previously
published literary work in a form intended to be perceived by
the visually impaired, provided that, during a period of at
least one year after the first publication of a standard
edition of such work in the United States, the owner of the
exclusive right to distribute such work in the United States
has not entered the market for editions intended to be
perceived by the visually impaired.''
SEC. 4. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT MANAGEMENT
INFORMATION.
Title 17, United States Code, is amended by adding the
following new chapter:
``CHAPTER 12.--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS
``Sec.
``1201. Circumvention of Copyright Protection Systems
``1202. Integrity of Copyright Management Information
``1203. Civil Remedies
``1204. Criminal Offenses and Penalties
Sec. 1201. Circumvention of Copyright Protection Systems
``No person shall import, manufacture or distribute any
device, product, or component incorporated into a device or
product, or offer or perform any service, the primary purpose
or effect of which is to avoid, bypass, remove, deactivate,
or otherwise circumvent, without the authority of the
copyright owner or the law, any process, treatment, mechanism
or system which prevents or inhibits the violation of any of
the exclusive rights of the copyright owner under section
106.
Sec. 1202. Integrity of Copyright Management Information
``(a) False Copyright Management Information.--No person
shall knowingly provide copyright management information that
is false, or knowingly publicly distribute or import for
public distribution copyright management information that is
false.
``(b) Removal or Alteration of Copyright Management
Information.--No person shall, without authority of the
copyright owner or the law, (i) knowingly remove or alter any
copyright management information, (ii) knowingly distribute
or import for distribution copyright management information
that has been altered without authority of the copyright
owner or the law, or (iii) knowingly distribute or import for
distribution copies or phonorecords from which copyright
management information has been removed without authority of
the copyright owner or the law.
``(c) Definition.--As used in this chapter, ``copyright
management information'' means the name and other identifying
information of the author of a work, the name and other
identifying information of the copyright owner, terms and
conditions for uses of the work, and such other information
as the Register of Copyrights may prescribe by regulation.
Sec. 1203. Civil Remedies
``(a) Civil Actions.--Any person injured by a violation of
Sec. 1201 or 1202 may bring a civil action in an appropriate
United States district court for such violation.
``(b) Powers of the Court.--In an action brought under
subsection (a), the court--
``(1) may grant temporary and permanent injunctions on such
terms as it deems reasonable to prevent or restrain a
violation;
``(2) at any time while an action is pending, may order the
impounding, on such terms as it deems reasonable, of any
device or product that is in the custody or control of the
alleged violator and that the court has reasonable cause to
believe was involved in a violation;
``(3) may award damages under subsection (c);
``(4) in its discretion may allow the recovery of costs by
or against any party other than the United States or an
officer thereof;
``(5) in its discretion may award reasonable attorney's
fees to the prevailing party; and
``(6) may, as part of a final judgment or decree finding a
violation, order the remedial modification or the destruction
of any device or product involved in the violation that is in
the custody or control of the violator or has been impounded
under subsection (2).
``(c) Awards of Damages.--
``(1) In general.--Except as otherwise provided in this
chapter, a violator is liable for either (i) the actual
damages and any additional profits of the violator, as
provided by subsection (2) or (ii) statutory damages, as
provided by subsection (3).
``(2) Actual damages.--The court shall award to the
complaining party the actual damages suffered by him or her
as a result of the violation, and any profits of the violator
that are attributable to the violation and are not taken into
account in computing the actual damages, if the complaining
party elects such damages at any time before final judgment
is entered.
``(3) Statutory damages.--
``(A) At any time before final judgment is entered, a
complaining party may elect to recover an award of statutory
damages for each violation of section 1201 in the sum of not
less than $200 or more than $2,500 per device, product, offer
or performance of service, as the court considers just.
``(B) At any time before final judgment is entered, a
complaining party may elect to recover an award of statutory
damages for each violation of section 1202 in the sum of not
less than $2,500 or more than $25,000.
``(4) Repeated violations.--In any case in which the
injured party sustains the burden of proving, and the court
finds, that a person has violated section 1201 or 1202 within
three years after a final judgment was entered against that
person for another such violation, the court may increase the
award of damages up to triple the amount that would otherwise
be awarded, as the court considers just.
``(5) Innocent violations.--The court in its discretion may
reduce or remit altogether the total award of damages in any
case in which the violator sustains the burden of proving,
and the court finds, that the violator was not aware and had
no reason to believe that its acts constituted a violation.
Sec. 1204. Criminal Offenses and Penalties
``Any person who violates section 1202 with intent to
defraud shall be fined not more than $500,000 or imprisoned
for not more than 5 years, or both.''
SEC. 5. CONFORMING AMENDMENTS.
(a) Table of Sections.--The table of sections for chapter 1
of title 17, United States Code, is amended by inserting
after the item relating to section 108 the following:
``108A. Limitations on exclusive rights: Reproduction for the Visually
Impaired.''
(b) Table of Chapters.--The table of chapters for title 17,
United States Code, is amended by adding at the end the
following:
``12. COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS...............1201''.
[[Page S 14552]]
SEC. 6. EFFECTIVE DATE.
This Act, and the amendments made by this Act, shall take
effect on the date of the enactment of this Act.
Mr. LEAHY. Mr. President, I join today in the introduction of the
``NII Copyright Protection Act.'' This bill reflects the effort of the
Working Group on Intellectual Property Rights, chaired by Assistant
Secretary of Commerce and Commissioner of Patents and Trademarks Bruce
A. Lehman. The Working Group included key Federal agencies in
consultation with the private sector, public interest groups and State
and local governments. Its examination of the intellectual property
implications of the National Information Infrastructure forms a
critical component of the Information Infrastructure Task Force,
created in early 1993 by President Clinton and Vice President Gore.
This legislative proposal confronts fundamental questions about the
role of copyright in the next century. On July 7, 1995, the Working
Group released its preliminary draft report. Following additional
hearings, public comment and consultation, the Administration released
its long-awaited ``White Paper,'' or final report, on copyright
protection in the digital, electronic information age on September 5,
1995. This 238-page report, ``Intellectual Property and the National
Information Infrastructure,'' culminates in legislative recommendations
that are incorporated in this bill. This bill takes important steps
toward answering questions about the structure of copyright protection
for decades to come.
Increasing the accessibility to computer networks is of vital
importance to our Nation's continued economic health and growth.
Computers have already been integrated into virtually everything we do
from getting cash at bank ATMs, paying for our groceries at the local
market, and sending e-mail messages to friends, to making a simple
telephone call that is directed by the telephone companies' computers.
Our dependence on computers only grows. Businesses both large and
small depend on computers to communicate, manage and improve their
delivery of goods and services. In fact, small businesses can use
computers successfully to keep up with their bigger competitors.
We have to make sure that all of us feel as comfortable with using
computers as we did, in my youth, using a typewriter. We have to make
sure that we appreciate all the advantages that networked communities,
such as the Internet, have to offer. Computer networks will
increasingly become the means of transmitting copyrighted works in the
years ahead. This presents great opportunities but also poses
significant risks to authors and our copyright industries.
I believe that we can legislate in ways that promote the use of the
Internet, both by content providers and users. We must and will update
our copyright laws to protect the intellectual property rights of
creative works available online. The future growth of computer networks
like the Internet and of digital, electronic communications requires
it. Otherwise, owners of intellectual property will be unwilling to put
their material online. If there is no content worth reading online, the
growth of this medium will be stifled, and public accessibility will be
retarded.
The Report of the Working Group on Intellectual Property Rights put
it this way:
Thus, the full potential of the NII will not be realized if
the education, information and entertainment products
protected by intellectual property laws are not protected
effectively when disseminated via the NII. Creators and other
owners of intellectual property will not be willing to put
their interests at risk if appropriate systems--both in the
U.S. and internationally--are not in place to permit them to
set and enforce the terms and conditions under which their
works are made available in the NII environment. Likewise,
the public will not use the services available on the NII and
generate the market necessary for its success unless a wide
variety of works are available under equitable and reasonable
terms and conditions, and the integrity of those works is
assured. All the computers, telephones, fax machines,
scanners, cameras, keyboards, televisions, monitors,
printers, switches, routers, wires, cables, networks, and
satellites in the world will not create a successful NII, if
there is no content. What will drive the NII is the content
moving through it.
The emergence of the computer networks forming the backbone of the
National Information Infrastructure in this country and the Global
Information Infrastructure worldwide hold enormous promise. They also
present an enormous challenge to those of us in government and in the
private sector to make sure it is accessible and affordable to all.
I support a balanced approach to digital communications and have
already proposed a series of other bills to foster the continued growth
of electronic communications while encouraging creativity. Together
with this NII Copyright Protection Act, they will go a long way toward
creating an environment for growth of digital networks.
When we consider information providers we cannot leave out the
Federal Government. Government databases hold vast amounts of
information that is not restricted by copyright and is legally required
by the Freedom of Information Act to be available to the public, who
paid for its collection. Earlier this year I introduced, along with
Senators Hank Brown and John Kerry, the ``Electronic Freedom of
Information Improvement Act of 1995,'' S.1090, to require federal
agencies to make more information available in electronic form and
online so that it can be readily accessible to students and scholars
doing research, companies who need the data for business purposes or
simply curious members of the public.
Government ought to be using technology to make itself more
accountable and government information more accessible to the public.
Individual federal agencies are already contributing to the development
of the much heralded National Information Infrastructure by using
technology to make Government information more easily accessible to our
citizens. For example, the Internet Multicasting Service [IMS] now
posts massive government data archives, including the Securities and
Exchange Commission EDGAR database and the U.S. Patent and Trademark
Office database on the Internet free of charge. Similarly, FedWorld, a
bulletin board available on the Internet, provides a gateway to more
than 60 Federal agencies.
The Electronic Freedom of Information Improvement Act would
contribute to that information flow by increasing online access to
Government information, including agency regulations, opinions, and
policy statements, and FOIA-released records that are the subject of
repeated requests. This bill passed the Senate in the last Congress and
I hope to see it through both Houses of this Congress.
Our increasing reliance on networked computers for business and
socializing also makes us more vulnerable to hackers and computer
criminals. Anyone who has had to deal with the aftermath of a computer
virus knows what havoc can be. Having previously been active in
legislation to prevent computer crime and abuse, I have this year
introduced the National Information Infrastructure Protection Act,
S.982, with Senators Kyl and Grassley to increase protection for both
government and private computers, and the information on those
computers, from the growing threat of computer crime. This bill would
increase protection against computer thieves, hackers and blackmailers
and protecting computer systems used in interstate and foreign commerce
and communications from destructive activity. It also serves to
increase personal privacy, a matter on which I feel most strongly.
Finally, I note my recent introduction with Senator Feingold of the
Criminal Copyright Improvement Act of 1995, S.1122. This bill is
designed to close a significant loophole in our copyright law and
encourage the continued growth of the NII by insuring better protection
of the creative works available online.
Under current law, a defendant's willful copyright infringement must
be for purposes of commercial advantage or private financial gain to be
the subject of criminal prosecution. As exemplified by the recent case
of United States v. LaMacchia, this presents an enormous loophole in
criminal liability for willful infringers who can use digital
technology to make exact copies of copyrighted software or other
digitally encoded works, and then use computer networks for quick,
inexpensive and
[[Page S 14553]]
mass distribution of pirated, infringing works.
The Report of the Working Group recognizes that the LaMacchia case
demonstrates that the current law is insufficient to prevent flagrant
copyright violations in the NII context and generally supports the
amendments to the copyright law and the criminal law (which sets out
sanctions for criminal copyright violations) set forth in S.1122,
introduced in the 104th Congress by Senators Leahy and Feingold
following consultations with the Justice Department. This increasingly
important problem must be solved and the Criminal Copyright Improvement
Act, S.1122, is a necessary component of the legal changes we need to
adapt to the emerging digital environment.
Today I join in sponsoring a bill that will help update our copyright
law to the emerging electronic and digital age by revising basic
copyright law definitions to take electronic transmissions into
account. Further it endorses the use of copyright protection systems so
that we may take fullest advantage of the technological developments
that can be used to protect copyright and provide incentives for
creativity. The bill provides graduated civil and criminal remedies for
the circumvention of copyright protection systems through the use of
false copyright management information.
Finally, it suggests certain limited exemptions for libraries and the
visually impaired. In this bill and others we need carefully to
construct the proper balance that will respect copyright, encourage and
reward creativity and serve the needs of public access to works.
I believe that technological developments, such as the development of
the Internet and remote computer information databases, are leading to
important advancements in accessibility and affordability of
information and entertainment services. We see opportunities to break
through barriers previously facing those living in rural settings and
those with physical disabilities. Democratic values can be served by
making more information and services available.
The public interest requires the consideration and balancing of such
interests. In the area of creative rights that balance has rested on
encouraging creativity by ensuring rights that reward it while
encouraging its public performance, distribution and display.
The Constitution speaks in terms of promoting the progress of science
and useful arts, by securing for limited times to authors and inventors
the exclusive right to their respective writings and discoveries.
Technological developments and the emergence of the Global Information
Infrastructure hold enormous promise and opportunity for creators,
artists, copyright industries and the public. There are methods of
distribution emerging that dramatically affect the role of copyright
and the accessibility of art, literature, music, film and information
to all Americans.
I was pleased to work with Chairman Hatch, Senator Thurmond, Senator
Feinstein, Senator Thompson and others earlier this year to craft a
bill creating a performance right in sound recordings, a matter that
had been a source of contention for more than 20 years. That bill, The
Digital Performance Rights in Sound Recordings Act of 1995, S.227,
deals with digital transmissions, has already passed the Senate and
should soon be the law of the land.
Senator Hatch and I have also previously joined to cosponsor the
Anticounterfeiting Consumer Protection Act of 1995, S.1136, to add law
enforcement tools against counterfeit goods and to protect the
important intellectual property rights associated with trademarks. I
anticipate prompt hearings on that important measure and its enactment
this Congress.
I look forward to working with Chairman Hatch, the Chairman of the
Judiciary, and others to adapt our copyright laws to the needs of the
NII and the global information society, as well. The amendment of our
copyright laws is an important and essential effort, one that merits
our time and attention. I hope and trust that we will soon begin
hearings on this important measure so that we may be sure to understand
its likely impact both domestically and internationally. We must
carefully balance the authors' interest in protection along with the
public's interest in the accessibility of information.
Ours is a time of unprecedented challenge to copyright protection.
Copyright has been the engine that has traditionally converted the
energy of artistic creativity into publicly available arts and
entertainment. Historically, Government's role has been to encourage
creativity and innovation by protecting copyrights that create
incentives for the dissemination to the public of new works and forms
of expression. That is the tradition that I intend to continue in this
bill, the NII Copyright Protection Act of 1995.
____________________