[Congressional Record Volume 144, Number 72 (Friday, June 5, 1998)]
[Extensions of Remarks]
[Pages E1052-E1053]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


        H.R. 2652 ``COLLECTIONS OF INFORMATION ANTIPIRACY ACT''

                                 ______
                                 

                           HON. HENRY J. HYDE

                              of illinois

                    in the house of representatives

                          Friday, June 5, 1998

  Mr. HYDE. Mr. Speaker, I would like to place in the Record the 
correspondence between Chairman Bliley and myself on this legislation.

                                         House of Representations,


                                   Committee on the Judiciary,

                                     Washington, DC, June 3, 1998.
     Hon. Tom Bliley, 
     Chairman,
     Committee on Commerce, House of Representatives, Washington, 
         DC.
       Dear Mr. Chairman: Thank you for your letter of May 19, 
     1998, expressing your interest in H.R. 2652, the 
     ``Collections of Information Antipiracy Act.''
       As you know, H.R. 2652 was introduced on October 9, 1997. 
     Its predecessor in the 104th Congress, H.R. 3531, authorized 
     by then-Chairman of the Subcommittee on Courts and 
     Intellectual Property, Carlos Moorhead, was introduced on May 
     23, 1996. H.R. 3531 was introduced in anticipation of a 
     Diplomatic Conference on Intellectual Property in Databases 
     held by the World Intellectual Property Organization in 
     Geneva, Switzerland in December, 1996, and on a Directive 
     issued by the European Union under which member countries 
     must enact laws to protect collections of information and 
     pursuant to which American collections would not receive 
     reciprocal protection without offering comparable protection 
     to foreign collections in the U.S. Both bills were referred 
     to the Committee on the Judiciary.
       H.R. 2652 was the subject of two days of hearings held by 
     the Subcommittee on Courts and Intellectual Property on 
     October 23, 1997 and on February 12, 1998. The Subcommittee 
     held a markup on H.R. 2652 on March 18, 1998. The full 
     Committee held a markup on the bill on March 24, 1998. The 
     bill was reported to the House on May 12, 1998 (H. Rept. 105-
     525) and placed on the Union Calendar (Calendar No. 297) on 
     that same date. I first learned of your interest in this 
     important legislation on May 12, the date it was reported and 
     placed on the Union Calendar, as the manager of the bill was 
     preparing to call it up for consideration under suspension of 
     the Rules on the House floor. After you expressed initial 
     concerns, I agreed to recommend a one week delay in the 
     consideration of the bill so that you might review it. It 
     passed the House under suspension of the Rules on May 19, and 
     was received in the Senate on May 20, 1998. It has been 
     referred to the Senate Committee on the Judiciary for 
     consideration by the other body.
       There are several statements and assertions contained in 
     your letter to me in need of clarification. The ``Collections 
     of Information Antipiracy Act'' is legislation necessary to 
     serve as a complement to copyright protection of collections 
     in which there has been substantial investment. It does not, 
     as your letter indicates, create a new federal property 
     right; rather, like the Lanham Act for trademark protection, 
     it prohibits misappropriation of another's collection under 
     certain circumstances. The general prohibition and other 
     specific provisions guarantee that a use of a collection 
     similar to a ``fair use'' under copyright law is permitted.
       The bill was developed in the aftermath of the Supreme 
     Court's 1991 decision in Feist Publications v. Rural 
     Telephone Service Co., which, in denying copyright protection 
     for certain collections, highlighted the need for Congress to 
     establish a separate complementary federal remedy for the 
     unauthorized copying of collections of information in order 
     to guarantee complete protection. The bill is based on United 
     States ``sweat of the brow'' case law predating the 
     application by courts of copyright protection to collections 
     of information, and was suggested as one viable way of 
     ``filling in'' the ``Feist gap'' in a Report issued by the 
     Copyright Office of the United States on Database Protection 
     in September, 1997.
       While, like almost every piece of legislation, H.R. 2652 
     affects commerce generally, it does not discriminate between 
     environments in which collections may appear, such as print 
     or digital, nor does it ``govern a key component of 
     interstate and foreign electronic commerce,'' as you assert. 
     Rather, it establishes a legal right to bring a cause of 
     action in federal district court for the unauthorized taking 
     of another's collection of information organized, gathered, 
     or maintained through the investment of substantial monetary 
     or other resources. The bill specifically denies protection 
     to any product or service incorporating a collection of 
     information which is gathered, maintained or organized to 
     address, route, forward, transmit, or store digital online 
     communications or provide or receive access to connections 
     for digital online communications. Thus, the bill provides a 
     new legal cause of action in federal courts, rather than 
     regulating any element or function relating to digital 
     communications or electronic commerce.

[[Page E1053]]

       Your letter states that the Committee on Commerce has two 
     specific interests in H.R. 2652. It states that ``[f]irst, 
     proposed section 1204(a)(2) would . . . [a]s our staffs have 
     discussed, . . . result in effective changes to existing laws 
     and regulations administrated by the Securities and Exchange 
     Commission, which would undermine the ability of the 
     Commission to regulate and oversee the collection and 
     dissemination of information about the securities markets, 
     including information about stock quotations and 
     transactions, and could create questions as to the public 
     nature of that market data.'' I must take exception to this 
     statement. You will recall that my staff communicated to 
     your staff the opposite assertion. The language to which 
     you refer the opposite effect of that which you claim. 
     Paragraph 1204(a)(2) was drafted to avoid the interference 
     you suggest.
       As you know, the dissemination of stock and commodities 
     information based on the public interest in such information 
     is regulated by the Securities Exchange Act and the Commodity 
     Exchange Act, and regulated by the Securities and Exchange 
     Commission and the Commodity Futures Trading Commission. 
     Currently, by regulation, exchanges are allowed to be 
     compensated for certain market information for a short time 
     after its creation. While the regulatory bodies to which 
     exchanges are subject are governmental entities, the 
     exchanges themselves are not. Subsection 1204(a) provides 
     that government information is not protected under the bill 
     in order to preserve free access by taxpayers to collections 
     of information funded by them. In order to avoid any 
     confusion, and to avoid interfering with the ability of 
     exchanges to be compensated according to applicable 
     regulations, paragraph 1204(a)(2) states that an exchange is 
     not to be considered a governmental entity under 1204(a). In 
     other words, to prevent any misconception that exchanges are 
     governmental entities and therefore must give out information 
     for free under the bill, which would undermine current 
     regulations, and to avoid interference with the jurisdiction 
     of the Committee on Commerce, the clarifying language 
     contained in 1204(a)2) was inserted. The provision you cite 
     therefore averts, and does not create, jurisdiction in the 
     Committee on Commerce.
       Your letter states as your second specific interest in H.R. 
     2652, that ``notwithstanding the savings clause in proposed 
     section 1205(f) for provisions of the Communications Act of 
     1934, the bill may have the unintended effect of restricting 
     the Federal Communications Commission's (FCC's) ability to 
     administer telecommunications laws that require carriers make 
     available to the FCC and other carriers certain 
     information,'' and that `if interpreted narrowly, the savings 
     clause will not preclude carriers from limiting access to, or 
     dissemination of, certain information that is critical to 
     promoting competition in telecommunications markets.'' Again, 
     I must take exception to this statement. The savings clause 
     to which you refer states that nothing in the bill shall 
     affect ``the operation of the provisions of the 
     Communications Act of 1934.'' This language has been drafted 
     in the broadest possible terms so as to prevent any narrow 
     reading. Further, just in case any court could possibly 
     interpret any situation regarding the dissemination of 
     subscriber information as somehow not falling under the scope 
     of the ``operation of the provisions of the Communications 
     Act,'' an additional clause was added to provide excessive 
     and abundant assurance that the circumstance you foresee 
     could not occur.
       Despite the careful drafting done by the Committee on the 
     Judiciary to assure no repercussions on important issues and 
     governmental bodies falling under the jurisdiction of the 
     Committee on Commerce, I agreed to recommend a delay in floor 
     consideration of H.R. 2652 for one week, so that you and your 
     staff might be able to review the provisions of this 
     important bill. Based upon your review, Chairman Coble was 
     equally pleased to include in a manager's amendment 
     additional clarifying language suggested by you to reaffirm 
     and reassure that the provisions contained in H.R. 2652 do 
     not affect any matter or entity within the jurisdiction of 
     the Committee on Commerce.
       Per your suggestion, I will include your letter of May 19, 
     along with this letter, in the record. Thank you for 
     expressing your views, and for your cooperation.
           Sincerely,
                                                   Henery J. Hyde,
                                                         Chairman.


     
                                  ____
                                         House of Representatives,


                                        Committee on Commerce,

                                     Washington, DC, May 19, 1998.
     Hon. Henry J. Hyde,
     Chairman,
     Committee on the Judiciary, U.S. House of Representatives, 
         Washington, DC.
       Dear Mr. Chairman: On May 12, 1998, the Committee on the 
     Judiciary reported H.R. 2652, the Collection of Information 
     Antipiracy Act. As you know, H.R. 2652 would establish a 
     prohibition, with certain exceptions and exclusions, against 
     the misappropriation of information gathered, organized or 
     maintained by another person in a collection through the 
     investment of substantial monetary or other resources.
       The Committee on Commerce has a strong interest in 
     legislation affecting the accessibility of information on the 
     Internet, and other telecommunications and information 
     networks that rely on electronic databases for the storage of 
     information. The Committee is in the midst of a Committee-
     wide review of electronic commerce issues within its 
     jurisdiction. Our review demonstrates that the Internet and 
     other digital networks carry great potential for facilitating 
     interstate and global commerce, and that the potential for 
     global electronic commerce, among other things, presupposes 
     that users and providers will have ready and affordable 
     access to collections of information. By providing 
     collections of information a new federal property right, H.R. 
     2652 would govern a key component of interstate and foreign 
     electronic commerce.
       In addition, the Committee on Commerce has two specific 
     interests in H.R. 2652, as reported by the Committee on the 
     Judiciary. First, proposed section 1204(a)(2) would except 
     from the exclusion provided for government-owned collections 
     any information required to be collected and disseminated by 
     either a national securities exchange under the Securities 
     Exchange Act of 1934 or a contract market under the Commodity 
     Exchange Act. As our staffs have discussed, this exception 
     would result in effective changes to existing laws and 
     regulations administered by the Securities and Exchange 
     Commission, which would undermine the ability of the 
     Commission to regulate and oversee the collection and 
     dissemination of information about the securities markets, 
     including information about stock quotations and 
     transactions, and could create questions as to the public 
     nature of that market data.
       Second, we have expressed a concern that, notwithstanding 
     the savings clause in proposed section 1205(f) for provisions 
     of the Communications Act of 1934, the bill may have the 
     unintended effect of restricting the Federal Commission's 
     (FCC's) ability to administer telecommunications laws that 
     require carriers make available to the FCC and other carriers 
     certain information. The Committee on Commerce is concerned 
     that, if interpreted narrowly, the savings clause will not 
     preclude carriers from limiting access to, or dissemination 
     of, certain information that is critical to promoting 
     competition in telecommunications markets. The 
     Telecommunications Act of 1996 is intended to promote 
     competition in all telecommunications markets, and the 
     Committee on Commerce seeks to ensure that H.R. 2652, if 
     enacted, does not supersede our national commitment to 
     competition.
       I understand your interest in moving this legislation 
     expeditiously to the House Floor. In exchange for your 
     agreement to include language in the bill to address the 
     problems described above, I agree not to seek a sequential 
     referral of the bill. By agreeing not to seek a sequential 
     referral, the Committee on Commerce does not waive its 
     jurisdictional interest in any matter within the scope of the 
     bill. Furthermore, I reserve the right to seek appropriate 
     representation on any House-Senate conference that may be 
     convened on this legislation.
       I want to thank you and your staff for your assistance in 
     providing the Committee on Commerce with an opportunity to 
     review it jurisdictional interests in H.R. 2652. I would 
     appreciate your acknowledgement of our agreement and your 
     including this letter in the record of the debate on H.R. 
     2652 on the House Floor.
       Thank you again for your consideration.
           Sincerely,
                                                       Tom Bliley,
                                                         Chairman.

     

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