[Congressional Record Volume 143, Number 160 (Thursday, November 13, 1997)]
[Extensions of Remarks]
[Pages E2352-E2354]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       INTRODUCTION OF THE DIGITAL ERA COPYRIGHT ENHANCEMENT ACT

                                 ______
                                 

                           HON. RICK BOUCHER

                              of virginia

                    in the house of representatives

                      Thursday, November 13, 1997

  Mr. BOUCHER. Mr. Speaker, I rise today with my distinguished 
colleague the gentleman from California, Mr. Campbell, to introduce the 
Digital Era Copyright Enhancement Act. We believe this legislation best 
advances the interests of both creators and users of copyrighted works 
in the digital era by modernizing the Copyright Act in a way that will 
preserve the fundamental balance built into the act by our predecessors 
throughout the analog era.
  We offer this measure as an appropriate starting point for 
congressional discussion of a range of copyright changes which the 
advent of digital technology will require in the belief that the 
legislation will serve as a solid foundation for the debate on these 
matters next year. We look forward to participating with the 
administration, other Members of Congress and interested external 
parties as next year's discussions commence.
  At the request of the administration, legislation was introduced 
earlier this year to implement two treaties negotiated by more than 100 
nations under the auspices of the World Intellectual Property 
Organization [WIPO]. The matters raised by introduction of the 
administration's WIPO implementing legislation certainly are important, 
but these issues should not be addressed in isolation.
  I believe that we should address other compelling matters as part of 
a comprehensive measure revising the Copyright Act for the digital era. 
Moreover, I have serious concerns regarding the approach taken in the 
administration's legislation in addressing so-called circumvention 
devices.
  As more fully explained in the section-by-section analysis that 
accompanies this statement, our comprehensive legislation addresses 
matters of concern not only to copyright proprietors, but also to 
consumers, educators, librarians, archivists, device manufacturers, and 
other groups concerned about maintaining a proper balance in the 
Copyright Act. For the benefit of my colleagues, I thought it would be 
helpful to describe the provisions of our legislation, focusing in 
particular on proposed section 1201.
  Section 1201. Because I have serious reservations about the 
implications for digital technologies of the administration's device-
oriented approach to section 1201, I have crafted an alternative that 
is more properly and closely tailored to our WIPO treaty obligations.
  Last December, when the U.S. Government and the representatives of 
more than 100 other governments met in Geneva to negotiate the text of 
the two WIPO treaties, they initially considered a draft text prepared 
by the chairman of the drafting committee, Mr. Liedes of Finland. That 
provision would have essentially outlawed the manufacturing of any 
device the primary purpose or effect of which is to avoid any 
anticopying technology. Perhaps not surprisingly, opposition to this 
device-oriented approach was expressed by numerous countries based upon 
a concern that such a provision could sweep within its reach legitimate 
and useful technology and inhibit the willingness of manufacturers to 
bring new products to market. As a result of that strong opposition, 
the device oriented this approach was dropped. Instead, the delegates 
adopted an alternative formulation that closely followed language I had 
proposed to the administration prior to the diplomatic conference.
  And yet, the device-oriented approach having been rejected by the 
delegates in Geneva, the administration nonetheless has proposed as the 
core of its legislation implementing the WIPO treaties a device-
oriented provision.
  During the hearings held this fall before the Judiciary Committee's 
Courts and Intellectual Property Subcommittee, the Commissioner of 
Patents and Trademarks confirmed what many private-sector witnesses 
argued in their testimony, namely that the adoption of legislation that 
essentially would punish the manufacturers of devices, such as general 
purpose computers and recorders, is not necessary for the 
implementation of the WIPO treaties. Commissioner Lehman correctly 
stated that the United States could take an entirely different and I 
think more positive approach by adopting legislation that does not 
punish the manufacturer of devices but instead punishes circumvention 
conduct tied to the act of infringement.

  The subcommittee also heard compelling testimony that the approach of 
the administration's bill would stifle the introduction of new 
technology and would effectively overturn the long-settled law of the 
United States as announced by the Supreme Court in 1984 in its Betamax 
decision, Sony Corp. of America versus Universal City Studios, Inc. In 
that case, the Court held that a manufacturer could not be held liable 
for contributory copyright infringement for manufacturing a device that 
had a substantial non-infringing use. Even though there may be 
infringing uses for the device, the presence of a single substantial 
non-infringing use renders the manufacturer unanswerable under the 
copyright law.
  That case is the state of our law today with respect to devices which 
have both infringing and non-infringing uses. It is that settled law 
which the administration's proposed treaty implementing legislation 
would effectively overturn.
  If that measure were to become law, equipment manufacturers would be 
liable when their devices have legitimate, non-infringing uses. The 
consequences, I fear, will be a reluctance to bring pioneering new 
technology to market or even to continue the manufacturing of existing 
technology that has potential infringing uses.
  Mr. Speaker, what is needed is a more thoughtful approach, one 
clearly contemplated by the WIPO convention that rejected the device-
oriented approach, one consistent with well-settled American law, and 
one that will not stifle the development of new technology. We have 
proposed that alternative.
  Section 1201 of our legislation would create liability for a person 
who, for purposes of facilitating or engaging in an act of 
infringement, knowingly removes, deactivates, or otherwise circumvents 
the application or operation of an effective technological measure used 
by a copyright owner to preclude or limit reproduction of a work in a 
digital format. Our legislation appropriately puts the focus on 
conduct, not on devices.
  Let me now briefly describe the other elements of our legislation.
  Section 1202. We have taken as our starting point the 
administration's proposed section 1202, but have revised it in part to 
ensure protection of the privacy interests of users of new technology. 
Our legislation would create liability for a person who knowingly 
provides false copyright management information or removes or alters 
copyright management information without the authority of the copyright 
owner, and with the intent to mislead or induce or facilitate 
infringement. In order to assure privacy protection, the measure 
explicitly excludes from the definition of copyright management 
information any personally identifiable information relating to the 
user of a work.
  Fair Use. The legislation makes clear that the Fair Use doctrine in 
the copyright law--which generally preserves the ability of users, 
including libraries, teachers and scholars, to make limited, 
noncommercial use of copyrighted works--continues to apply with full 
force in a digital networked environment.
  First Sale. Given the historical importance to libraries, scholars, 
educators, and consumers of transferring to others lawfully acquired 
copies of works, the legislation offers assurances of the continued 
applicability in the digital environment of the First Sale doctrine.
  Library Provisions. The legislation permits libraries to utilize 
digital technologies for preservation purposes and increases the number 
of copies of a work that may be made for archival purposes.
  Distance Learning. The legislation fully authorizes educators to use 
data networks for distance learning in the same way they now use 
broadcast and closed-circuit television for that purpose.
  Ephemeral Copying. The legislation amends the Copyright Act to make 
explicit that it is not an infringement for a person to make a digital 
copy of a work when such copying is made incidental to the operation of 
a computer in the course of the use of the work in a way that is 
otherwise lawful.

[[Page E2353]]

  Preemption. Finally, the measure includes a measure to address the 
increasing practice by which copyright owners use non-negotiated terms 
in ``shrink-wrap'' or ``click-on'' licenses in ways that can abrogate 
or narrow federal rights consumers otherwise would enjoy under the 
federal Copyright Act.
  With this bill, Mr. Campbell and I have proposed the only 
comprehensive legislation offered in this body to date that addresses 
the fundamental issues raised by the transition from the analog era to 
the digital era. I look forward to working with the gentleman from 
California, the members of the Judiciary Committee, the administration, 
and external interested parties as we preserve the balance that will be 
necessary to advance the progress of science and useful arts in the 
21st century.

                 Digital Era Copyright Enhancement Act


                      section-by-section analysis

       Short title. The ``Digital Era Copyright Enhancement Act.''
       Fair Use. Section 2 makes clear that the fair use doctrine 
     continues to apply with full force in the digital networked 
     environment. As initially proposed, the World Intellectual 
     Property Organization (WIPO) Copyright Treaty would have 
     expanded the rights of information owners while arguably 
     narrowing the exceptions to those rights which have long been 
     recognized as appropriate for limited copying by libraries 
     and similar entities for public information purposes. At the 
     instigation of the United States, the delegates adopted the 
     following Agreed Statement to clarify the meaning of the 
     treaty in this respect:
       ``It is understood that the provisions of Article 10 permit 
     Contracting Parties to carry forward and appropriately extend 
     into the digital environment limitations and exceptions in 
     their national laws which have been considered acceptable 
     under the Berne Convention. Similarly, these provisions 
     should be understood to permit Contracting Parties to devise 
     new exceptions and limitations that are appropriate in the 
     digital network environment.''
       Consistent with this Agreed Statement, Section 2 of the 
     proposed bill would amend section 107 of the Copyright Act to 
     reaffirm that a finding of ``fair use'' may be made where 
     appropriate, without regard to the technological means by 
     which a work has been performed, displayed or distributed or 
     whether an effective technological protection measure has 
     been applied to it. This language would assure that the fair 
     use doctrine would remain technology neutral, applying to all 
     copyrighted works, regardless of the manner in which they are 
     distributed or used.
       Library/Archive Exemptions. In 1976, the Copyright Act was 
     expressly amended to facilitate the preservation of decaying 
     or otherwise unavailable copyrighted works by authorizing 
     libraries and archives to make a ``facsimile'' of such works. 
     (An analog facsimile was the best available technology at the 
     time.) This clause has been read by some, however, to 
     preclude the use of digital or other advanced technology for 
     preservation purposes.
       Like the Administration's original NII legislation 
     introduced in the 104th Congress (H.R. 244I/S. 1284), Section 
     3 would amend section 108 of the Copyright Act to allow 
     libraries and archives to use new forms of technology by 
     deleting the phrase ``in facsimile form''. In addition, 
     Section 3 would permit the making of three rather than just 
     one copy of a work for archival purposes as allowed under 
     current law, as well as in instances in which the existing 
     format in which a work is stored has become obsolete. Such an 
     approach was specifically endorsed by the Register of 
     Copyrights in her testimony on the original NII legislation.
       First Sale. Section 4 would amend section 109 of the 
     Copyright Act to establish the digital equivalent of the 
     ``first sale'' doctrine. Under current law, a person who has 
     legally obtained a book or video cassette may physically 
     transfer it to another person without permission of the 
     copyright owner.
       Given the historical importance to libraries, scholars, 
     educators, and consumers of transferring to others lawfully 
     acquired copies of works, Section 4 would permit electronic 
     transmission of a lawfully acquired digital copy of a work as 
     long as the person making the transfer eliminates (e.g., 
     erases or destroys) that copy of the work from his or her 
     system at substantially the same time as he or she makes the 
     transfer. To avoid any risk that the mere act of making the 
     transfer would be deemed an infringing act under existing 
     section 116 of the Copyright Act, Section 4 of the proposed 
     bill states that the ``reproduction of the work, to the 
     extent necessary for such performance, display, or 
     distribution, is not an infringement.''
       Distance Learning. Since the advent of broadcasting, 
     educators have striven to use the latest communications 
     technologies to enhance educational opportunities. Through 
     the Copyright Act, as amended in 1976, Congress has supported 
     such ``distance learning'' by exempting qualifying television 
     transmissions designed to be received in traditional class-
     room like settings. (At the time, broadcast and closed-
     circuit television was the ``state of the art'' distance 
     learning technology.)
       Section 5 of the proposed bill would amend sections 110(2) 
     and 112(b) of the Copyright Act to ensure that educators can 
     use personal computers and new technology in the same way 
     they now use televisions to foster distance learning. 
     Students today enjoy the benefits of distance education in 
     large part because section 110(2) allows for the 
     ``performance or display'' of certain works delivered by 
     means of ``transmission'' (principally television) in non-
     profit educational settings. It is generally understood, 
     however, that transmission of a work over a digital network 
     may constitute a ``distribution'' as well as (or even instead 
     of) a ``performance'' or ``display.'' Section 5 of the 
     proposed bill thus would specifically add ``distribution'' to 
     the list of conditionally exempt educational uses.
       In addition, Section 5 would broaden the range of works 
     that may be performed, displayed, or distributed to include 
     the various kinds of works that might be included in a 
     multimedia lesson. It also would broaden the educational 
     settings subject to the exemption to include the various no-
     classroom settings (including the home) in which pupils could 
     receive distance learning lessons.
       To guard against the potential for abuse, Section 5 
     stipulates that the performance, display, or distribution of 
     the work must occur as part of ``the systematic instructional 
     activities of a governmental body or nonprofit educational 
     institution,'' must be ``directly related and of material 
     assistance to the teaching content of the transmission,'' and 
     must be provided to ``students officially enrolled in the 
     course in connection with which [the work] is provided.'' 
     Moreover, like existing section 110(2), the new provision 
     would extend an exemption only to teachers and their 
     institutions, and only for materials used to illustrate 
     particular lessons. It would not extend to companies or 
     individuals who prepare distance learning materials for use 
     by educators; they would be required to obtain copyright 
     licenses, as appropriate, for the incorporation of 
     preexisting works in such materials.
       Ephemeral Copying. Given the architecture of computers and 
     data transmission networks, the simple act of viewing a 
     downloaded image or sending an e-mail message creates an 
     incidental or ephemeral reproduction (e.g., in RAM or cache 
     memory). Although such ``ephemeral copies'' are not stored 
     permanently, content owners last year sought to get the same 
     rights to control ephemeral reproductions as they enjoy 
     regarding analog ``hard'' copies (or digital ROM copies) 
     today. In fact, as originally drafted, Article 7 of the WIPO 
     Copyright Treaty expressly provided that temporary 
     reproductions should be considered the equivalent of hard 
     copies and thus subject to proprietors' control. In response 
     to strong opposition from both developed and developing 
     countries at the Diplomatic Conference in Geneva in December, 
     Article 7 was dropped from the treaty in its entirety.
       Section 6 of the proposed bill would amend section 117 of 
     the Copyright Act to make explicit that it is not an 
     infringement for a person to make a digital copy of a work 
     when such copying is made incidental to the operation of a 
     computer or other device in the course of the use of the work 
     in a way that is otherwise lawful, as long as such copying 
     does not conflict with the normal exploitation of the work 
     and does not unreasonably prejudice the legitimate interests 
     of the author. Thus, for example, a person would not be 
     subject to liability for viewing a copyrighted work on the 
     World Wide Web simply because ephemeral copies of the work 
     would have been made in the normal course of the operation of 
     the Internet.
       Preemption. Content owners are increasingly using ``click 
     on'' and ``shrink wrap'' license terms to limit what a 
     consumer can do with a lawfully acquired copy of a work, or 
     the uses to which a consumer can put the work itself. They 
     are engaged in an effort at the state level to achieve 
     adoption of a change to the Uniform Commercial Code that 
     would recognize the validity of such terms under state 
     contract law. If successful in these efforts, content owners 
     will be able to eliminate fair use and other privileges 
     established under the federal Copyright Act by means of 
     stipulated license terms to which a consumer must agree in 
     order to gain access to a work.
       Section 7 would effectively preclude copyright owners from 
     using non-negotiable license terms to abrogate or narrow 
     rights and use privileges that consumers otherwise would 
     enjoy under the Copyright Act, such as their fair use 
     privilege, by preempting state common and statutory law, such 
     as the proposed changes to the Uniform Commercial Code. In 
     recognition that businesses and institutions might be willing 
     to forego these rights in return for other consideration in 
     an arms-length negotiated contract setting, preemption only 
     applies with respect to non-negotiable license terms.
       WIPO Treaty Implementation. Section 8 would implement the 
     anti-circumvention and copyright management information 
     provisions of the WIPO Copyright Treaty and the WIPO 
     Performances and Phonograms Treaty.
       With respect to anti-circumvention, the WIPO treaties 
     require only that contracting parties ``provide adequate 
     legal protection and effective legal remedies against 
     circumvention of effective technological measures. . . .'' 
     Adopting a conduct-oriented approach fully compliant with 
     this mandate, new section 1201 would create liability for a 
     person who, for purposes of facilitating or engaging in an 
     act of infringement, knowingly removes, deactivates, or 
     otherwise circumvents the application or operation of an

[[Page E2354]]

     effective technological measure used by a copyright owner to 
     preclude or limit reproduction of a work in a digital format. 
     Conduct governed by a separate chapter (e.g., chapter 10--the 
     Audio Home Recording Act of 1992) would not be governed by 
     this new provision. The provision does not apply to 
     technological protection measures applied to a work in an 
     analog format.
       New section 1202 would create liability for a person who 
     knowingly provides false copyright management information or 
     removes or alters copyright management information without 
     the authority of the copyright owner, and with the intent to 
     mislead or induce or facilitate infringement. In order to 
     assure privacy protection, this provision explicitly excludes 
     from the definition of copyright management information ``any 
     personally identifiable information relating to the user of a 
     work, including but not limited to the name, account, address 
     or other contact information of or pertaining to the user.''
       New section 1203 establishes civil penalties for violations 
     of sections 1201 and 1202. Unlike the Administration's treaty 
     implementation bill, no criminal penalties would be imposed 
     for violations of either section 1201 or 1202.
       Conforming Amendments. Section 9 merely makes conforming 
     amendments to the table of sections for chapter 1 of title 17 
     and the table of chapters for title 17.
       Effective Dates. Section 10 sets forth two separate 
     effective dates. Those provisions unrelated to the WIPO 
     treaties would be effective on the date of enactment. The 
     WIPO implementation provisions would take effect when both 
     treaties have entered into force with respect to the United 
     States.

     

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