[Congressional Record Volume 144, Number 55 (Wednesday, May 6, 1998)]
[Senate]
[Pages S4439-S4440]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH:
  S. 2037. An original bill to amend title 17, United States Code, to 
implement the WIPO Copyright Treaty and the WIPO Performances and 
Phonograms Treaty, to provide limitations on copyright liability 
relating to material online, and for other purposes; from the Committee 
on the Judiciary; placed on the calendar.


                    Digital Millennium Copyright Act

  Mr. LEAHY. Mr. President, the Digital Millennium Copyright Act, which 
the Senate Judiciary Committee is reporting today, is important for our 
economy, for our creative industries and for the future of the 
Internet. This legislation is based on the WIPO implementing 
legislation, S. 1121, recommended by the Administration and introduced 
last year by the Chairman, Senators Thompson and Kohl and me.
  Following intensive discussions with a number of interested parties, 
including libraries, universities, small businesses, online and 
Internet service providers, telephone companies, computer users, 
broadcasters, content providers and device manufacturers, the Committee 
was able to reach unanimous agreement on certain modifications and 
additions incorporated into the bill and making this bill a product of 
which we can all be proud.
  Significant provisions were added to the bill in Title II to clarify 
the liability for copyright infringement of online and Internet service 
providers. These provisions set forth ``safe harbors'' from liability 
for ISPs and OSPs under clearly defined circumstances, which both 
encourage responsible behavior and protect important intellectual 
property rights. In addition, during the Committee's consideration of 
this bill, an Ashcroft-Leahy-Hatch amendment was adopted to ensure that 
computer users are given reasonable notice of when their Web sites are 
the subject of infringement complaints, and to provide procedures for 
computer users to have material mistakenly taken down put back.
  This bill contains a number of provisions designed to help libraries 
and archives. First, libraries expressed concerns about the possibility 
of criminal sanctions or potentially ruinous monetary liability for 
actions taken in good faith. This bill makes sure that libraries acting 
in good faith can never be subject to fines or civil damages. 
Specifically, a library is exempt from monetary liability in a civil 
suit if it was not aware and had no reason to believe that its acts 
constituted a violation. In addition, libraries are completely exempt 
from the criminal provisions.
  Second, the bill contains a browsing exception for libraries. 
Libraries have indicated that in an online environment dominated by 
encrypted works it may be impossible for them to gain access to works 
to decide whether or not to acquire them. The current version of the 
bill permits libraries to circumvent access prevention technologies in 
order to make a good faith determination of whether or not it would 
like to buy a copy of a work. If the library decides that it wishes to 
acquire the work it must negotiate with the copyright owner just as 
libraries do today.
  Third, the Chairman, Senator Ashcroft and I crafted an amendment to 
provide for the preservation of digital works by qualified libraries 
and archives. The ability of Libraries to preserve legible copies of 
works in digital form is one I consider critical. Under present law, 
libraries are permitted to make a single facsimile copy of works in 
their collections for preservation purposes, or to replace lost, 
damaged or stolen copies of works that have become commercially 
unavailable. This law, however, has become outmoded by changing 
technology and preservation practices. The bill ensures that libraries' 
collections will continue to be available to future generations by 
permitting libraries to make up to three copies in any format--
including in digital form. This was one of the proposals in the 
National Information Infrastructure Copyright Protection Act of 1995, 
which I sponsored in the last Congress. The Register of Copyrights, 
among others, has supported that proposal.
  In addition, the bill would permit a library to transfer a work from 
one digital format to another if the equipment needed to read the 
earlier format becomes unavailable commercially. This change addresses 
a problem that should be familiar to anyone whose office has boxes of 
eight-inch floppy disks tucked away somewhere.
  These provisions go a long way toward meeting the concerns that 
libraries have expressed about the original bill, S. 1121, introduced 
to implement the WIPO treaties.
  Another issue that the bill addresses is distance learning. When 
Congress enacted the present copyright law it recognized the potential 
of broadcast and cable technology to supplement classroom teaching, and 
to bring the classroom to those who, because of their disabilities or 
other special circumstances, are unable to attend classes. At the same 
time, Congress also recognized the potential for unauthorized 
transmissions of works to harm the markets for educational uses of 
copyrighted materials. In the present Copyright Act, we struck a 
careful balance and crafted a narrow exemption. But as with so many 
areas of copyright law, the advent of digital technology requires us to 
take another look at the issue.
  I recognize that the issue of distance learning has been under 
consideration for the past several years by the Conference on Fair Use 
(CONFU) that was established by the Administration to consider issues 
relating to fair use in the digital environment. In spite of the hard 
work of the participants, CONFU has so far been unable to forge a 
comprehensive agreement on guidelines for the application of fair use 
to digital distance learning. The issue is an important one, and I 
commend Senator Ashcroft for his attention to this matter.

  We made tremendous strides in charting the appropriate course for 
updating the Copyright Act to permit the use of copyrighted works in 
valid distance learning activities. The Chairman, Senator Ashcroft and 
I joined together to ask the Copyright Office to facilitate discussions 
among interested library and educational groups and content providers 
with a view toward making recommendations that could be incorporated 
into the DMCA at the April 30 mark up. The Copyright Office did just 
that, once again providing a valuable service to this Committee.
  Based on the Copyright Office's recommendations, we incorporated into 
the DMCA a new Section 122 requiring the Copyright Office to make 
broader recommendations to Congress on digital distance education 
within six months. Upon receiving the Copyright Office's 
recommendations, it is my hope that the Senate Judiciary Committee will 
promptly commence hearings on the issue and move expeditiously to enact 
further legislation on the matter. I know that my fellow members on 
this Committee are as anxious as I am to complete the process that we 
started in Committee of updating the Copyright Act to permit the 
appropriate use of copyrighted works in valid distance learning 
activities. This step should be viewed as a beginning--not an end, and 
we are committed to reaching that end point as quickly as possible.
  Senator Feinstein had sought to clarify when a university would be 
held responsible for the actions of its employees in connection with 
its eligibility for the safe harbors spelled out in title II of the 
bill. Chairman Hatch, Senator Ashcroft and I agreed with Senator 
Feinstein that the best way to address this issue is to have the 
Copyright Office examine this issue in a comprehensive fashion, because 
of its importance, complexity, and implications for other online 
service providers, including libraries and archives.
  Amendments sponsored by Senators Ashcroft, Hatch and I were also 
crafted to address the issues of reverse engineering, ephemeral 
recordings and to clarify for broadcasters the use of copyright 
management information in the course of certain analog and digital 
transmissions.
  Legislative language was incorporated into the bill to clarify that 
the law enforcement exemptions apply to all government agencies which 
conduct law enforcement and intelligence work, as well as to government 
contractors engaging in intelligence, investigative, or protective 
work.
  Chairman Hatch, Senator Ashcroft and I agreed to language to assuage 
the concerns of the consumer electronics

[[Page S4440]]

manufacturers, and others, that the bill might require them to design 
their products to respond to any particular technological protection 
measure. We also agreed to incorporate provisions into the bill 
clarifying that nothing in the bill will prevent parents from 
controlling their children's access to the Internet or individuals from 
protecting personal identifying information.
  By reaching agreement on this bill, this Committee is helping to 
create American jobs, protect American ingenuity, and foster an ever 
more vibrant Internet. In short, the WIPO treaties and this 
implementing legislation are important to America's economic future. 
The bill addresses the problems caused when copyrighted works are 
disseminated through the Internet and other electronic transmissions 
without the authority of the copyright owner. By establishing clear 
rules of the road, this bill will allow electronic commerce to flourish 
in a way that does not undermine America's copyright community.
  In a recent letter about the DMCA, Secretary Daley said, ``The United 
States must lead the way in setting a standard that will protect our 
creative industries and serve as a model for the rest of the world. And 
we need to act as quickly as possible.''
  This bill is a well-balanced package of proposals that address the 
needs of creators, consumers and commerce well into the next century. I 
urge all of my colleagues to support the Digital Millennium Copyright 
Act and work for its prompt passage.
  Mr. KOHL. Mr. President, I rise to express my support for the Digital 
Millennium Copyright Act of 1998. In my view, we need this measure to 
stop an epidemic of illegal copying of protected works--such as movies, 
books, musical recordings, and software. The copyright industry is one 
of our most thriving businesses. But we still lose more than $15 
billion each year due to foreign copyright piracy, according to some 
estimates.
  This foreign piracy is out of control. For example, one of my 
staffers investigating video piracy on a trip to China walked into a 
Hong Kong arcade and bought three bootlegged computer games--including 
``Toy Story'' and ``NBA '97''--for just $10. These games normally sell 
for about $100. Indeed, the manager was so brazen about it, he even 
agreed to give a receipt.
  Illegal copying has been a longstanding concern to me. I introduced 
one of the precursors to this bill, the Motion Picture Anti-Piracy Act, 
which in principle has been incorporated into this measure. And I was 
one of the original cosponsors of the original proposed WIPO 
implementing legislation, the preliminary version of this measure.
  In my opinion, this bill achieves a fair balance by taking steps to 
effectively deter piracy, while still allowing fair use of protected 
materials. It is the product of intensive negotiations between all of 
the interested parties--including the copyright industry, telephone 
companies, libraries, universities and device manufacturers. And every 
major concern raised during that process was addressed. For these 
reasons, it earned the unanimous support of the Judiciary Committee. Of 
course, as with any legislation, some tinkering may still be needed.
  I am confident that this bill has the best approach for stopping 
piracy and strengthening one of our biggest export industries. It 
deserves our support.
                                 ______