[Congressional Record Volume 144, Number 64 (Tuesday, May 19, 1998)]
[House]
[Pages H3398-H3404]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
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COLLECTIONS OF INFORMATION ANTIPIRACY ACT
Mr. COBLE. Madam Speaker, I move to suspend the rules and pass the
bill (H.R. 2652) to amend title 17, United States Code, to prevent the
misappropriation of collections of information, as amended.
The Clerk read as follows:
H.R. 2652
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 ``Collections of Information
Antipiracy Act''.
SEC. 2. MISAPPROPRIATION OF COLLECTIONS OF INFORMATION.
Title 17, United States Code, is amended by adding at the
end the following new chapter:
``CHAPTER 12--MISAPPROPRIATION OF COLLECTIONS OF INFORMATION
``Sec.
``1201. Definitions.
``1202. Prohibition against misappropriation.
``1203. Permitted acts.
``1204. Exclusions.
``1205. Relationship to other laws.
``1206. Civil remedies.
``1207. Criminal offenses and penalties.
``1208. Limitations on actions.
``Sec. 1201. Definitions
``As used in this chapter:
``(1) Collection of information.--The term `collection of
information' means information that has been collected and
has been organized for the purpose of bringing discrete items
of information together in one place or through one source so
that users may access them.
``(2) Information.--The term `information' means facts,
data, works of authorship, or any other intangible material
capable of being collected and organized in a systematic way.
``(3) Potential market.--The term `potential market' means
any market that a person claiming protection under section
1202 has current and demonstrable plans to exploit or that is
commonly exploited by persons offering similar products or
services incorporating collections of information.
[[Page H3399]]
``(4) Commerce.--The term `commerce' means all commerce
which may be lawfully regulated by the Congress.
``(5) Product or service.--A product or service
incorporating a collection of information does not include a
product or service incorporating a collection of information
gathered, organized, or maintained to address, route,
forward, transmit, or store digital online communications or
provide or receive access to connections for digital online
communications.
``Sec. 1202. Prohibition against misappropriation
``Any person who extracts, or uses in commerce, all or a
substantial part, measured either quantitatively or
qualitatively, of a collection of information gathered,
organized, or maintained by another person through the
investment of substantial monetary or other resources, so as
to cause harm to the actual or potential market of that other
person, or a successor in interest of that other person, for
a product or service that incorporates that collection of
information and is offered or intended to be offered for sale
or otherwise in commerce by that other person, or a successor
in interest of that person, shall be liable to that person or
successor in interest for the remedies set forth in section
1206.
``Sec. 1203. Permitted acts
``(a) Individual Items of Information and Other
Insubstantial Parts.--Nothing in this chapter shall prevent
the extraction or use of an individual item of information,
or other insubstantial part of a collection of information,
in itself. An individual item of information, including a
work of authorship, shall not itself be considered a
substantial part of a collection of information under section
1202. Nothing in this subsection shall permit the repeated or
systematic extraction or use of individual items or
insubstantial parts of a collection of information so as to
circumvent the prohibition contained in section 1202.
``(b) Gathering or Use of Information Obtained Through
Other Means.--Nothing in this chapter shall restrict any
person from independently gathering information or using
information obtained by means other than extracting it from a
collection of information gathered, organized, or maintained
by another person through the investment of substantial
monetary or other resources.
``(c) Use of Information for Verification.--Nothing in this
chapter shall restrict any person from extracting
information, or from using information within any entity or
organization, for the sole purpose of verifying the accuracy
of information independently gathered, organized, or
maintained by that person. Under no circumstances shall the
information so extracted or used be made available to others
in a manner that harms the actual or potential market for the
collection of information from which it is extracted or used.
``(d) Nonprofit Educational, Scientific, or Research
Uses.--Nothing in this chapter shall restrict any person from
extracting or using information for nonprofit educational,
scientific, or research purposes in a manner that does not
harm the actual or potential market for the product or
service referred to in section 1202.
``(e) News Reporting.--Nothing in this chapter shall
restrict any person from extracting or using information for
the sole purpose of news reporting, including news gathering,
dissemination, and comment, unless the information so
extracted or used is time sensitive, has been gathered by a
news reporting entity for distribution to a particular
market, and has not yet been distributed to that market, and
the extraction or use is part of a consistent pattern engaged
in for the purpose of direct competition in that market.
``(f) Transfer of Copy.--Nothing in this chapter shall
restrict the owner of a particular lawfully made copy of all
or part of a collection of information from selling or
otherwise disposing of the possession of that copy.
``Sec. 1204. Exclusions
``(a) Government Collections of Information.--
``(1) Exclusion.--Protection under this chapter shall not
extend to collections of information gathered, organized, or
maintained by or for a government entity, whether Federal,
State, or local, including any employee or agent of such
entity, or any person exclusively licensed by such entity,
within the scope of the employment, agency, or license.
Nothing in this subsection shall preclude protection under
this chapter for information gathered, organized, or
maintained by such an agent or licensee that is not within
the scope of such agency or license, or by a Federal or State
educational institution in the course of engaging in
education or scholarship.
``(2) Exception.--The exclusion under paragraph (1) does
not apply to any information required to be collected and
disseminated--
``(A) under the Securities Exchange Act of 1934 by a
national securities exchange, a registered securities
association, or a registered securities information
processor, subject to section 1205(g) of this title; or
``(B) under the Commodity Exchange Act by a contract
market, subject to section 1205(g) of this title.
``(b) Computer Programs.--
``(1) Protection not extended.--Subject to paragraph (2),
protection under this chapter shall not extend to computer
programs, including, but not limited to, any computer program
used in the manufacture, production, operation, or
maintenance of a collection of information, or any element of
a computer program necessary to its operation.
``(2) Incorporated collections of information.--A
collection of information that is otherwise subject to
protection under this chapter is not disqualified from such
protection solely because it is incorporated into a computer
program.
``Sec. 1205. Relationship to other laws
``(a) Other Rights Not Affected.--Subject to subsection
(b), nothing in this chapter 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, and the
law of contract.
``(b) Preemption of State Law.--On or after the effective
date of this chapter, all rights that are equivalent to the
rights specified in section 1202 with respect to the subject
matter of this chapter shall be governed exclusively by
Federal law, and no person is entitled to any equivalent
right in such subject matter under the common law or statutes
of any State. State laws with respect to trademark, design
rights, antitrust, trade secrets, privacy, access to public
documents, and the law of contract shall not be deemed to
provide equivalent rights for purposes of this subsection.
``(c) Relationship to Copyright.--Protection under this
chapter is independent of, and does not affect or enlarge the
scope, duration, ownership, or subsistence of, any copyright
protection or limitation, including, but not limited to, fair
use, in any work of authorship that is contained in or
consists in whole or part of a collection of information.
This chapter does not provide any greater protection to a
work of authorship contained in a collection of information,
other than a work that is itself a collection of information,
than is available to that work under any other chapter of
this title.
``(d) Antitrust.--Nothing in this chapter shall limit in
any way the constraints on the manner in which products and
services may be provided to the public that are imposed by
Federal and State antitrust laws, including those regarding
single suppliers of products and services.
``(e) Licensing.--Nothing in this chapter shall restrict
the rights of parties freely to enter into licenses or any
other contracts with respect to the use of collections of
information.
``(f) Communications Act of 1934.--Nothing in this chapter
shall affect the operation of the provisions of the
Communications Act of 1934 (47 U.S.C. 151 et seq.), or shall
restrict any person from extracting or using subscriber list
information, as such term is defined in section 222(f)(3) of
the Communications Act of 1934 (47 U.S.C. 222(f)(3)), for the
purpose of publishing telephone directories in any format.
``(g) Securities Exchange Act of 1934 and Commodity
Exchange Act.--Nothing in this chapter shall affect--
``(1) the operation of the provisions of the Securities
Exchange Act of 1934 (15 U.S.C. 58a et seq.) or the Commodity
Exchange Act (7 U.S.C. 1 et seq.);
``(2) the public nature of information with respect to
quotations for and transactions in securities that is
collected, processed, distributed, or published pursuant to
the requirements of the Securities Exchange Act of 1934;
``(3) the obligations of national securities exchanges,
registered securities associations, or registered information
processors under the Securities Exchange Act of 1934; or
``(4) the jurisdiction or authority of the Securities and
Exchange Commission or the Commodity Futures Trading
Commission.
``Sec. 1206. Civil remedies
``(a) Civil Actions.--Any person who is injured by a
violation of section 1202 may bring a civil action for such a
violation in an appropriate United States district court
without regard to the amount in controversy, 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 section
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 section 1202. Any such injunction may be served
anywhere in the United States on the person enjoined, and may
be enforced by proceedings in contempt or otherwise by any
United States district court having jurisdiction over that
person.
``(c) Impoundment.--At any time while an action under this
section is pending, the court may order the impounding, on
such terms as it deems reasonable, of all copies of contents
of a collection of information extracted or used in violation
of section 1202, and of all masters, tapes, disks, diskettes,
or other articles by means of which such copies may be
reproduced. The court may, as part of a final judgment or
decree finding a violation of section 1202, order the
remedial modification or destruction of all copies of
contents of a collection of information extracted or used in
violation of section 1202, and of all masters, tapes, disks,
diskettes, or other articles by means of which such copies
may be reproduced.
``(d) Monetary Relief.--When a violation of section 1202
has been established in any civil action arising under this
section, the
[[Page H3400]]
plaintiff shall be entitled to recover any damages sustained
by the plaintiff and defendant's profits not taken into
account in computing the damages sustained by the plaintiff.
The court shall assess such profits or damages or cause the
same to be assessed under its direction. In assessing profits
the plaintiff shall be required to prove defendant's gross
revenue only; defendant must prove all elements of cost or
deduction claims. In assessing damages the court may enter
judgment, according to the circumstances of the case, for any
sum above the amount found as actual damages, not exceeding
three times such amount. The court in its discretion may
award reasonable costs and attorney's fees to the prevailing
party and shall award such costs and fees where it determines
that an action was brought under this chapter in bad faith
against a nonprofit educational, scientific, or research
institution, library, or archives, or an employee or agent of
such an entity, acting within the scope of his or her
employment.
``(e) Reduction or Remission of Monetary Relief for
Nonprofit Educational, Scientific, or Research
Institutions.--The court shall reduce or remit entirely
monetary relief under subsection (d) in any case in which a
defendant believed and had reasonable grounds for believing
that his or her conduct was permissible under this chapter,
if the defendant was an employee or agent of a nonprofit
educational, scientific, or research institution, library, or
archives acting within the scope of his or her employment.
``(f) Actions Against United States Government.--
Subsections (b) and (c) shall not apply to any action against
the United States Government.
``(g) Relief Against State Entities.--The relief provided
under this section shall be available against a State
governmental entity to the extent permitted by applicable
law.
``Sec. 1207. Criminal offenses and penalties
``(a) Violation.--
``(1) In general.--Any person who violates section 1202
willfully, and--
``(A) does so for direct or indirect commercial advantage
or financial gain, or
``(B) causes loss or damage aggregating $10,000 or more in
any 1-year period to the person who gathered, organized, or
maintained the information concerned,
shall be punished as provided in subsection (b).
``(2) Inapplicability.--This section shall not apply to an
employee or agent of a nonprofit educational, scientific, or
research institution, library, or archives acting within the
scope of his or her employment.
``(b) Penalties.--An offense under subsection (a) shall be
punishable by a fine of not more than $250,000 or
imprisonment for not more than 5 years, or both. A second or
subsequent offense under subsection (a) shall be punishable
by a fine of not more than $500,000 or imprisonment for not
more than 10 years, or both.
``Sec. 1208. Limitations on actions
``(a) Criminal Proceedings.--No criminal proceeding shall
be maintained under this chapter unless it is commenced
within three years after the cause of action arises.
``(b) Civil Actions.--No civil action shall be maintained
under this chapter unless it is commenced within three years
after the cause of action arises or claim accrues.
``(c) Additional Limitation.--No criminal or civil action
shall be maintained under this chapter for the extraction or
use of all or a substantial part of a collection of
information that occurs more than 15 years after the
investment of resources that qualified the portion of the
collection of information for protection under this chapter
that is extracted or used.''.
SEC. 3. CONFORMING AMENDMENT.
The table of chapters for title 17, United States Code, is
amended by adding at the end the following:
``12. Misappropriation of Collections of Information........1201''.....
SEC. 4. CONFORMING AMENDMENTS TO TITLE 28, UNITED STATES
CODE.
(a) District Court Jurisdiction.--Section 1338 of title 28,
United States Code, is amended--
(1) in the section heading by inserting ``misappropriations
of collections of information,'' after ``trade-marks,''; and
(2) by adding at the end the following:
``(d) The district courts shall have original jurisdiction
of any civil action arising under chapter 12 of title 17,
relating to misappropriation of collections of information.
Such jurisdiction shall be exclusive of the courts of the
States, except that any action against a State governmental
entity may be brought in any court that has jurisdiction over
claims against such entity.''.
(b) Conforming Amendment.--The item relating to section
1338 in the table of sections for chapter 85 of title 28,
United States Code, is amended by inserting
``misappropriations of collections of information,'' after
``trade-marks,''.
(c) Court of Federal Claims Jurisdiction.--Section 1498(e)
of title 28, United States Code, is amended by inserting
``and to protections afforded collections of information
under chapter 12 of title 17'' after ``chapter 9 of title
17''.
SEC. 5. EFFECTIVE DATE.
(a) In General.--This Act and the amendments made by this
Act 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 chapter 12 of title 17, United States Code, as added by
section 2 of this Act, for the use of information lawfully
extracted from a collection of information prior to the
effective date of this Act, by that person or by that
person's predecessor in interest.
The SPEAKER pro tempore (Mrs. Emerson). Pursuant to the rule, the
gentleman from North Carolina (Mr. Coble) and the gentleman from
Massachusetts (Mr. Frank) each will control 20 minutes.
The Chair recognizes the gentleman from North Carolina (Mr. Coble).
General Leave
Mr. COBLE. Madam Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from North Carolina?
There was no objection.
Mr. COBLE. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, I rise in support of H.R. 2652, the Collections of
Information Antipiracy Act, and urge my colleagues to support this
important bill. Developing, compiling, distributing, and maintaining
commercially significant collections of information requires
substantial investments of time, personnel, and money. Information
companies, especially small businesses, must dedicate massive resources
when gathering and verifying factual material, presenting it in a user-
friendly way, and keeping it current for and useful to customers.
H.R. 2652, Madam Speaker, prohibits the misappropriation of valuable
commercial collections by unscrupulous competitors who grab data
collected by others, repackage it, and market a product that threatens
competitive injury to the original collection.
This protection is modeled in part on the Lanham Act, which already
makes similar kinds of unfair competition a civil wrong under Federal
law. Importantly, this bill maintains existing protection for
collections of information afforded by copyright and contract rights.
It is intended to supplement these legal rights, not to replace them.
The Collections of Information Antipiracy Act is a balanced proposal.
It is aimed at actual or threatened competitive injury for
misappropriation of collections of information, not at noncompetitive
uses. The goal is to stimulate the creation of even more collections
and to encourage even more competition among them. The bill avoids
conferring any monopoly on facts or taking any other steps that might
be inconsistent with these goals.
The version under consideration today contains several
noncontroversial technical amendments. The legislation is necessary, in
my opinion, and well-balanced, and I urge my colleagues to support it.
Madam Speaker, I would be remiss if I did not mention this. Much
information has been disseminated about this bill, and I want to advise
the Members of a couple facts that I think are pertinent.
Last February, in fact, the afternoon of the hearing that was
conducted, we met with representatives of the university community and
asked them for specific instances where they would be concerned about
this bill, that we might be able to correct some problems or concerns.
None was forthcoming.
As recently as yesterday, a representative from the university
community made it clear that he could not give one specific instance
where detriment would result, but that he felt that maybe some future
unforeseen circumstance might crop up. Madam Speaker, that could happen
with any legislation.
I will be doggone if I am going to stand in the path of small
businesses and perhaps encourage their bankruptcy ultimately in the
fear of a prospective unforeseen circumstance. If that circumstance
does arise, then we will repair it and correct it at the time.
The libraries, we met with our friends from the American Library
Association, again, last February, asking them, tell us what is wrong
and we will fix it. A total of 10 amendments have been made a part of
this bill, 10 amendments that were forthcoming from earlier opponents
of the bill.
[[Page H3401]]
I think we have done all we can do. I think we have a good piece of
legislation here. I urge my colleagues to support it.
Madam Speaker, I reserve the balance of my time.
Mr. FRANK of Massachusetts. Madam Speaker, I yield myself such time
as I may consume.
Madam Speaker, I rise in support of this bill. The principle is very
straightforward. The Supreme Court decided a while ago that people who
put together the phone book could not have a property interest in the
phone numbers. We do not actually deal with that decision here. That
particular decision is not overturned.
But it did leave at risk work that people do to collect information.
Essentially the state of the law now, opponents to this bill want the
state of the law to remain such that you can go through considerable
work to compile data. People who have been in the data compilation
business know that it is often not fun. It can be very hard work. It
can be unexciting work. But it could give you a very useful work
product.
What we are being asked to do by those who simply want to defeat this
bill is to leave that work totally unprotected legally as far as the
Federal government is concerned. You do the work, you do all the
research, and you come up with a significantly useful collection of
information. This law says anybody else who wants to can go and take
that and do whatever they want with it.
We do in this bill, to the extent that we were capable of doing it,
make a distinction. Nothing in this bill in any way retards the
intellectual use of that data. A scoundrel who wants to do research and
publish some of it as part of his or her study, if you want to go to
the data collection and usurp from it so you can prove your point, you
can do it. If you want to go to the data collection and reproduce it
and get paid for reproducing somebody else's work, this bill says you
cannot.
So that is the distinction we have tried to draw between making the
intellectual product here fully accessible but protecting it
commercially. If in fact you leave it unprotected commercially, you
will almost certainly have less work done.
The notion that people should go and do this, do all this data
collection, with their work product totally unprotected from anybody
else who wants to use it for any purpose, including passing it on,
selling it to somebody else, seems to me to be in error.
One of the things we have done, we have had hearings, and we are
told, Madam Speaker, that this is too quickly being done and we should
pull this bill. Yes, the people who do not want to deal with it now
argue to pull the bill.
Why do people say, let us pull the bill? There are two circumstances
in which those of us in the legislative body argue that a bill should
be pulled. One, it really did come up too quickly, and we really have
not had a chance to look at it.
This bill had its first public hearing in October of last year and
then a second public hearing in February of this year. It was voted on
in subcommittee two months ago. The number of people who have been
prevented from studying this bill by time is zero. People have had
months to look at it.
Since we have had two public hearings on the bill, a markup two
months ago in subcommittee and then a markup in full committee, and
then we were going to be on the calendar last week. One of those
terrible legislative diseases known as turfitis, which is particularly
virulent at the Subcommittee on Energy and Power; you have got to be
careful when you are walking on the first floor past the Subcommittee
on Energy and Power. You have got a vicious case of ``It is mine, and
nobody else can look at it.'' That will break out. That held us off a
week.
At any rate, we have had a lot of time that people are aware of this
bill. Still, what is their complaint? We have got to study this some
more. They are lucky that this bill is not covered by the data
collection, I suppose. They would have a long time to study it.
The point is, Madam Speaker, that you say pull the bill when you do
not have any substantive arguments. We all say let us delay it. We all
say we are not sure what it does. That is when you do not have
substantive arguments. I say that because we have asked for substantive
arguments.
I very much agree that full use should be there intellectually. I do
not want to interfere with researchers who use those data collections.
I have yet to hear a specific instance of how the legislation we are
bringing forward prevents people from doing research, from reading the
data and using it in that reasonable way.
We have tried in various ways. People said, well, what about the
concept of fair use? It does not technically apply, but it could
interfere with figures. We said it does not. We have said this bill
specifically allows you to do research, allows you to reproduce some
parts of it to make your argument. It does not allow you to simply take
other people's work product and sell it and get paid for it.
We have had a series of cases, of meetings and hearings, and no one
has come forward with specifics. Look at the literature that has been
put out. Various organizations have said this is not a good bill, stop
it. But I have not been able to find in any of this literature a
specific example of how this legislation will interfere with legitimate
intellectual activity.
We make a distinction here in this bill between commercial use of
someone else's property and the intellectual use. If people think we
have not done the balance perfectly, I would be willing to listen, but
they do not want to come forward with specifics.
I want to talk also about my friends, the libraries. Some of my
friends are librarians. My chief of staff in Massachusetts was the head
of a library board and built a beautiful library building. I think
libraries are very important.
To the extent that librarians come and say to us, you are going to
prevent our readers from being able to read this, do research with
this, write a paper based on it, I would be opposed to the bill if it
did that. That is not what they are saying. Essentially what they are
saying is, some of the people who have done all this work might charge
us more than we want to pay.
We underfund libraries. I think we do. If I were in charge, we would
give libraries more money than other places. The answer, however, to a
public sector inadequately funding libraries is not to empower
libraries to take other people's work product for nothing. The answer
is further and better to fund libraries.
So I will await the end of this debate, and thereafter I will still
be waiting for specifics. I am available. If people will show myself,
the chairman, our very able staffs how this interferes with free and
open exchange of information, with intellectual use for this, we will
try to change that.
I do not think that is the problem. I think people have been able to
get some of this information for free. I suppose, as between paying for
it and getting it for free, most of us would rather get it for free, if
you assume that there is an endless supply of it coming, and if you
assume that people who have to give it to you for free and allow you to
reuse it will not stop this kind of work.
I think if we do not pass this, you will begin to see a diminution in
the kind of data that is available. Nothing in this bill will interfere
with the intellectual use of it, so I hope the bill is passed.
Mr. COBLE. Madam Speaker, I have no speaker, but I reserve the
balance of my time.
Mr. FRANK of Massachusetts. Madam Speaker, I yield 5 minutes to the
very distinguished but not infallible gentleman from California (Mr.
Brown), the ranking member of the Committee on Science.
(Mr. BROWN of California asked and was given permission to revise and
extend his remarks.)
Mr. BROWN of California. Madam Speaker, I thank the distinguished
gentleman for allowing me to express myself on this bill. I acknowledge
that I am distinguished but not infallible. Sometimes I even wonder if
I am distinguished.
But let me tell you that without pretending to understand all of the
implications of this bill, I found out very quickly, when it was placed
on the schedule, that there are a lot of extremely worried people out
there who should know what they are talking about or who, on the other
hand, may be totally paranoid. It may well be that there are a lot of
paranoid people out there.
I suspect that what has happened here is that those organizations,
and I
[[Page H3402]]
have circulated a ``Dear Colleague'' letter which lists these, and they
include some of the most distinguished organizations in this country,
beginning with the library associations and the AAAS, American
Association for the Advancement of Science, and many others are worried
about this bill.
They may be worried because they do not understand it, and I will
confess that. Their tactics seem to be not necessarily to kill the
bill, but to allow more time for these scholars and academics and so
forth to see if they can find flaws in it and to present those flaws
for protection.
These individuals and organizations are notoriously slow in their
ability to act promptly on legislation and sometimes other things, but
that does not mean that they are wrong. When I see a compilation of
organizations as broad as have taken a stand in opposition to this
bill, I would like to alert a broader audience to the fact that there
could be some flaws.
Knowing the distinguished chairman of the subcommittee and the
ranking member and having heard their statements, as the gentleman from
North Carolina (Mr. Coble) says, tell us what is wrong and we will fix
it, the gentleman from Massachusetts (Mr. Frank) said the same thing,
and similar language, and I have faith that we would do that.
I would like to have my own little laundry list of the things that
need to be done here; but, frankly, I do not have the competence to
come up with that kind of a list. What I am trying to accomplish here,
and I hope that my motives are understood, is to put on the record the
concern of some of these groups which I have known and worked with for
many, many years. They are all respectable. They all think they know
what they are talking about. And put their concerns on the record so
that we may get a broader analysis of this.
I would have hoped that this could have been done in the normal
legislative process, and that we could have considered this bill, not
on suspension, but with an opportunity to debate it and amend it on the
floor. Unfortunately, that is not a possibility at this point.
{time} 1330
But it may be. If we defeat it on suspension, we may be able to bring
it back, or we may be able to take corrective action in the Senate.
This is my whole purpose, and I confess it quite willingly.
It is my understanding that H.R. 2652 addresses only one aspect of
the complex subject of adjusting intellectual property protection laws
to meet the demands of the new digital age. Unfortunately, as I have
indicated, it may be a flawed and controversial attempt, which should
have not come up on the suspension calendar.
The problem is that the bill has not found yet a proper balance
between protecting original investments in data bases and the economic
and social cost of unduly restricting and discouraging downstream
application of these data bases, particularly in regard to uses for
basic research or education.
Some of these scientific data bases are extremely large and complex.
For example, we are spending billions on an effort to characterize the
human genome, and we have thousands of scientists working on it. A
portion of that work only, and it may be a small portion, is either
patentable or protected under copyright laws. The rest of it is going
to be freely available. It may be that this legislation is going to
cause considerable problem with that massive collection of research
data. I hope that that is not the case, but I do not think anyone can
tell you at this point whether it or is not.
Progress in science requires full and open availability of scientific
data. New knowledge is built on previous findings and unfettered access
and use of factual information. This bill will impede research by
restricting the ability of scientists to draw on data, facts and even
mathematical formulas from previous scientific work for the production
of new and innovative work.
It is for this reason, Madam Speaker, that I ask that the bill be
defeated on suspension, and, hopefully, brought back after further
study.
H.R. 2652 addresses one aspect of the complex subject of adjusting
intellectual property protection laws to meet the demands of the
digital age. Unfortunately it is a flawed and controversial attempt,
which should not have come to the Floor on the Suspension Calendar.
The problem is that the bill has not found a proper balance between
protecting original investments in databases AND the economic and
social costs of unduly restricting and discouraging downstream
applications of these databases--particularly in regard to uses for
basic research and education.
Progress in science requires full and open availability of scientific
data. New knowledge is built on previous findings and unfettered access
and use of factual information.
The bill will impede research by restricting the ability of
scientists to draw on data, facts, and even mathematical formulas from
previous scientific work for the production of new, innovative works.
To date, these types of activities have not only been permissible, but
expressly protected under copyright law and the fair use concept.
By granting unprecedented rights to ownership of facts--not just
rights to the expression of facts and information, as is the case for
copyright--the bill will certainly increase the costs of research, but
more importantly, reduce the openness of exchange of scientific data
and information and also reduce collaboration among scientists.
The provisions in the bill that purport to give exceptions for
research and education uses are illusory--triggered only if users can
show that the use will not harm actual or potential markets. This is
far less ``fair use'' than under copyright law.
Also, there is no language for mandatory legal licenses, or other
limitations, that would require providers of sole source databases to
make data available for research, education, and other public interest
uses on fair and equitable terms.
Many fields of inquiry that involve statistical compilations and
analysis of raw data would be restricted by this bill, such as climate
modeling and economic forecasting. Also, research activities involving
collaborative sharing of large data bases, such as the sequencing of
the human genome, would be adversely affected.
The stated objective of the bill is to protect against individuals
stealing non-copyrightable commercial databases, and then taking away
the market of the original compiler of the data. The reach of the bill
goes far beyond this goal.
Alternative draft legislation that is narrowly based on
misappropriation case law is being worked out by the communities with
reservations about H.R. 2652. Such an approach would leave existing
research and education uses of databases unchanged, while providing
added protections for commercial, noncopyrightable databases.
Any legislative action to protect the contents of databases should
proceed using a cautious, minimalist approach that balances the
interests of creators, publishers, and users, and of society as a
whole.
This is not the approach that was taken in developing H.R. 2652.
Despite concerns raised by libraries, research and educational
institutions, commercial database companies, and computer and
telecommunications companies, the bill has been brought to the floor as
a non-controversial measure under suspension of the rules.
This procedure is inappropriate since it affords no opportunity for
Members to offer amendments or present alternative approaches to
address the many concerns that have been raised about the bill.
The House should reject H.R. 2652 in its current form, and work
toward a compromise, such as the alternative I referred to, that will
balance the concerns of the various communities of interest.
Mr. FRANK of Massachusetts. Madam Speaker, I yield myself such time
as I may consume to make two points.
First, with regard to the human genome, I am glad the gentleman
brought that point up. Let me say, I fully respect the gentleman's
motives. He performs a very useful service as the leading Democratic
member on the Committee on Science, and it is entirely valid for him to
be bringing these concerns forward.
The point I would make, not to him, but to those on whose behalf he
is quite legitimately speaking here, is that this has been pending
business since hearings last October. We have had it before us. At
various stages people say we have a problem; we say, fine, let us hear
it. Two months ago we had a subcommittee markup. We had a subsequent
committee markup. A week ago this bill was pulled off the floor, and
tomorrow never comes.
I think it will come, if we in fact vote this bill out of here. By
the way, it will not go from here to the President's desk. It will go
from here to that august wonderful chamber on the other
[[Page H3403]]
side of this building, which, under the House rules, is the beneficiary
of all of our good comments, and they will have some time to work on
it, and I do not think they are likely to speed it through.
I do believe that if we do not get a bill over there, it is kind of
late in the session, measured by the amount of time that has passed,
not the amount of bills that have passed, but it is late in the
session, and if we do not get it over there, they will never get to the
point. And we look forward to the discussion.
Just to give one example, by the way, on the human genome project,
that is Federally funded, page 6 of the bill:
Protection shall not extend to collections of information
gathered, organized or maintained by or for a government
entity, Federal, State or local, including any employee or
agent of such entity or any person exclusively licensed by
such entity within the scope of the employment agency
licensed.
Indeed, one difference between our version and the European version
is they do not exempt, as we do, government information.
Mr. BROWN of California. Madam Speaker, will the gentleman yield?
Mr. FRANK of Massachusetts. I yield to the gentleman from California.
Mr. BROWN of California. Madam Speaker, I am glad the gentleman made
this point. As the gentleman probably knows, there has been
considerable publicity within the last few weeks about a private
research organization which has stated it can do the remainder of the
human genome project faster and quicker than the government-funded
projects. I have no idea what the impact of this legislation will be.
Mr. FRANK of Massachusetts. Madam Speaker, reclaiming my time, I will
tell the gentleman what the impact is. If we go forward with the
government funded proposal, and he has more to say about that than I
do, and I have a suggestion, which is cancel that wasteful space
station and do that instead with this money and do it quicker, with the
shortfall from the Russians that you are going to have to make up, but
if we go ahead and do this governmentally funded, that work will not be
protectable and it will remain fully open. The fact that some other
privately funded entity has chosen to do the work will have no negative
effect on people's access to the work that is government funded.
Mr. BROWN of California. Madam Speaker, I am glad for that assurance.
Mr. FRANK of Massachusetts. Madam Speaker, I yield 3 minutes to the
distinguished gentlewoman from the District of Columbia (Ms. Norton)
Ms. NORTON. Madam Speaker, I thank my good friend, the distinguished
ranking member, for yielding time to me, and I thank both the
distinguished chair and the distinguished ranking member for pressing
forward with such persistence in the wake of some considerable
resistance, and not ``Waiting for Godot'' in the absence of anything
concrete.
Madam Speaker, I am very afraid that Federal copyright law is in
danger of becoming a dinosaur if we do not learn to keep up with the
technology. I would be the first, as a First Amendment lawyer in my
early days, to stand on the other side if I thought there were a real
danger here.
But in fact there is another kind of danger, Madam Speaker; there is
a new kind of plagiarism, much of it coming out of the new technology.
The new plagiarism robs companies who, by the sweat of their proverbial
brows, develop collections that we all need and use every day.
These data base providers have no rights that pirates are bound to
respect. Some of the victims, are familiar names, such as NASDAQ, based
here in the district. Many more of them are small businesses like
Warren Publishing, a company also located in this city. Georgia pirates
copied Warren Publishing's unique and original cable system Factbook
and sold it under their own name for very little because the pirates
did not have to invest the hundreds of thousands of dollars in human,
technical and financial resources that Warren Publishing put in to
research, to update and to verify the product. Nevertheless, the 11th
Circuit discarded Warren Publishing's original contributions altogether
simply because the company had worked from a larger and less well-
defined listing.
As one known for paying close attention to First Amendment issues, I
have felt an obligation to inspect the bill carefully to make sure that
educational institutions and researchers are not deterred in the
marketplace of free exchange of information and ideas.
I am still an academic, a tenured professor of law at Georgetown
University law school who teaches a course there every year and who is
working on a book. I would not want to be part and parcel of deterring
other researchers. But in an age of instant communication, Federal
copyright law must keep up with technology, or risk stifling the
development of usable information and the creative entrepreneurship
that the new technology allows, not to mention the increase in jobs
that businesses like Warren Publishing and NASDAQ are creating every
day.
Mr. FRANK of Massachusetts. Madam Speaker, I yield back the balance
of my time.
Mr. COBLE. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, I will sum up very briefly. My friend the gentleman
from Massachusetts (Mr. Frank) and the gentlewoman from the District of
Columbia (Ms. Norton) have pretty well touched it.
I say to my friend the gentleman from California (Mr. Brown), I am
not talking about you, but some people in this fray have inserted
paranoia, deception and fear into this message, and then they are very
cleverly targeting that message to a select group. Well, if you do
that, chances are you are going to get some attention.
But as the gentleman from Massachusetts said and as I said, this has
been before us since last October. It has been on the table. We have
begged people to come forward, and some did come forward, and we took
their amendments and worked them into the bill.
This is a good bill, Madam Speaker, and I urge my colleagues to
support it.
Mr. DELAHUNT. Madam Speaker, I rise in strong support of H.R. 2652,
the Collections of Information Antipiracy Act.
Collections of information--``databases''--have become an
indispensable feature of today's information society. By organizing
billions of bits of raw data into retrievable form, databases enable
medical researchers, travel writers, legal professionals, historians,
business managers and consumers to navigate the expanding universe of
human knowledge to find the information they need.
The creation and maintenance of an electronic database is a labor-
intensive process that requires an enormous investment of time and
resources. Yet thanks to digital technology, the end product can be
copied and distributed by unscrupulous competitors with only a few
clicks of a mouse.
Under current law, there is little the creator of the database can do
to prevent this. For many years, federal courts afforded copyright
protection to compilations developed through significant investments of
time and hard work--the ``sweat of the brow.'' But in a 1991 decision,
Feist Publications v. Rural Telephone Service Co., the Supreme Court
discarded the ``sweat of the brow'' doctrine, and announced that
compilations would henceforth merit copyright protection only if the
arrangement of the information displays a sufficient degree of
originality--a standard which, by their nature, few databases are
likely to meet.
Without effective legal protection against piracy, companies will
have little incentive to continue to invest their time and money in
database development. Should they fail to do so, it is the public that
will be the poorer for it.
The Collections of Information Antipiracy Act will address this
problem by prohibiting the misappropriation for commercial purposes of
collections of information whose compilation has required the
investment of substantial time and resources.
At the same time, the bill is drafted so as not to inhibit free
access to information for non-profit, educational, scientific or
research purposes.
Mr. Speaker, this is a balanced and sensible response to the problem
of database piracy, and I urge my colleagues to give it their support.
Mr. COBLE. Madam Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mrs. Emerson). The question is on the motion
offered by the gentleman from North Carolina (Mr. Coble) that the House
suspend the rules and pass the bill, H.R. 2652, as amended.
The question was taken; and (two-thirds having voted in favor
thereof) the rules were suspended and the bill, as amended, was passed.
[[Page H3404]]
A motion to reconsider was laid on the table.
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