[Congressional Record Volume 144, Number 108 (Tuesday, August 4, 1998)]
[House]
[Pages H7074-H7103]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DIGITAL MILLENNIUM COPYRIGHT ACT
Mr. COBLE. Madam Speaker, I move to suspend the rules and pass the
bill (H.R. 2281) to amend title 17, United States Code, to implement
the World Intellectual Property Organization Copyright Treaty and
Performances and Phonograms Treaty, as amended.
The Clerk read as follows:
H.R. 2281
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 ``Digital Millennium Copyright
Act''.
SEC. 2. TABLE OF CONTENTS.
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--WIPO COPYRIGHT TREATIES IMPLEMENTATION
Sec. 101. Short title.
Sec. 102. Technical amendments.
Sec. 103. Copyright protection systems and copyright management
information.
Sec. 104. Development and implementation of technological protection
measures.
Sec. 105. Evaluation of impact of copyright law and amendments on
electronic commerce and technological development.
Sec. 106. Effective date.
TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
Sec. 201. Short title.
Sec. 202. Limitations on liability for copyright infringement.
Sec. 203. Effective date.
[[Page H7075]]
TITLE III-COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
Sec. 301. Short title.
Sec. 302. Limitations on exclusive rights; computer programs.
TITLE IV--MISCELLANEOUS PROVISIONS
Subtitle A--Establishment of the Under Secretary of Commerce for
Intellectual Property Policy
Sec. 401. Under Secretary of Commerce for Intellectual Property Policy.
Sec. 402. Relationship with existing authorities.
Subtitle B--Related Provisions
Sec. 411. Ephemeral recordings.
Sec. 412. Limitations on exclusive rights; distance education.
Sec. 413. Exemption for libraries and archives.
Sec. 414. Fair use.
Sec. 415. Scope of exclusive rights in sound recordings; ephemeral
recordings.
Sec. 416. Assumption of contractual obligations related to transfers of
rights in motion pictures.
Sec. 417. First sale clarification.
TITLE V--COLLECTIONS OF INFORMATION ANTIPIRACY ACT
Sec. 501. Short title.
Sec. 502. Misappropriation of collections of information.
Sec. 503. Conforming amendment.
Sec. 504. Conforming amendments to title 28, United States Code.
Sec. 505. Effective date.
TITLE VI--PROTECTION OF CERTAIN ORIGINAL DESIGNS
Sec. 601. Short title.
Sec. 602. Protection of certain original designs.
Sec. 603. Conforming amendments.
Sec. 604. Effective date.
TITLE I--WIPO COPYRIGHT TREATIES IMPLEMENTATION
SEC. 101. SHORT TITLE.
This title may be cited as the ``WIPO Copyright Treaties
Implementation Act''.
SEC. 102. TECHNICAL AMENDMENTS.
(a) Definitions.--Section 101 of title 17, United States
Code, is amended--
(1) by striking the definition of ``Berne Convention
work'';
(2) in the definition of ``The `country of origin' of a
Berne Convention work''--
(A) by striking ``The `country of origin' of a Berne
Convention work, for purposes of section 411, is the United
States if'' and inserting ``For purposes of section 411, a
work is a `United States work' only if'';
(B) in paragraph (1)--
(i) in subparagraph (B) by striking ``nation or nations
adhering to the Berne Convention'' and inserting ``treaty
party or parties'';
(ii) in subparagraph (C) by striking ``does not adhere to
the Berne Convention'' and inserting ``is not a treaty
party''; and
(iii) in subparagraph (D) by striking ``does not adhere to
the Berne Convention'' and inserting ``is not a treaty
party''; and
(C) in the matter following paragraph (3) by striking ``For
the purposes of section 411, the `country of origin' of any
other Berne Convention work is not the United States.'';
(3) by inserting after the definition of ``fixed'' the
following:
``The `Geneva Phonograms Convention' is the Convention for
the Protection of Producers of Phonograms Against
Unauthorized Duplication of Their Phonograms, concluded at
Geneva, Switzerland, on October 29, 1971.'';
(4) by inserting after the definition of ``including'' the
following:
``An `international agreement' is--
``(1) the Universal Copyright Convention;
``(2) the Geneva Phonograms Convention;
``(3) the Berne Convention;
``(4) the WTO Agreement;
``(5) the WIPO Copyright Treaty;
``(6) the WIPO Performances and Phonograms Treaty; and
``(7) any other copyright treaty to which the United States
is a party.'';
(5) by inserting after the definition of ``transmit'' the
following:
``A `treaty party' is a country or intergovernmental
organization other than the United States that is a party to
an international agreement.'';
(6) by inserting after the definition of ``widow'' the
following:
``The `WIPO Copyright Treaty' is the WIPO Copyright Treaty
concluded at Geneva, Switzerland, on December 20, 1996.'';
(7) by inserting after the definition of ``The `WIPO
Copyright Treaty' '' the following:
``The `WIPO Performances and Phonograms Treaty' is the WIPO
Performances and Phonograms Treaty concluded at Geneva,
Switzerland, on December 20, 1996.''; and
(8) by inserting after the definition of ``work made for
hire'' the following:
``The terms `WTO Agreement' and `WTO member country' have
the meanings given those terms in paragraphs (9) and (10),
respectively, of section 2 of the Uruguay Round Agreements
Act.''.
(b) Subject Matter of Copyright; National Origin.--Section
104 of title 17, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1) by striking ``foreign nation that is a
party to a copyright treaty to which the United States is
also a party'' and inserting ``treaty party'';
(B) in paragraph (2) by striking ``party to the Universal
Copyright Convention'' and inserting ``treaty party'';
(C) by redesignating paragraph (5) as paragraph (6);
(D) by redesignating paragraph (3) as paragraph (5) and
inserting it after paragraph (4);
(E) by inserting after paragraph (2) the following:
``(3) the work is a sound recording that was first fixed in
a treaty party; or'';
(F) in paragraph (4) by striking ``Berne Convention work''
and inserting ``pictorial, graphic, or sculptural work that
is incorporated in a building or other structure, or an
architectural work that is embodied in a building and the
building or structure is located in the United States or a
treaty party''; and
(G) by inserting after paragraph (6), as so redesignated,
the following:
``For purposes of paragraph (2), a work that is published in
the United States or a treaty party within 30 days after
publication in a foreign nation that is not a treaty party
shall be considered to be first published in the United
States or such treaty party, as the case may be.''; and
(2) by adding at the end the following new subsection:
``(d) Effect of Phonograms Treaties.--Notwithstanding the
provisions of subsection (b), no works other than sound
recordings shall be eligible for protection under this title
solely by virtue of the adherence of the United States to the
Geneva Phonograms Convention or the WIPO Performances and
Phonograms Treaty.''.
(c) Copyright in Restored Works.--Section 104A(h) of title
17, United States Code, is amended--
(1) in paragraph (1), by striking subparagraphs (A) and (B)
and inserting the following:
``(A) a nation adhering to the Berne Convention;
``(B) a WTO member country;
``(C) a nation adhering to the WIPO Copyright Treaty;
``(D) a nation adhering to the WIPO Performances and
Phonograms Treaty; or
``(E) subject to a Presidential proclamation under
subsection (g).'';
(2) by amending paragraph (3) to read as follows:
``(3) The term `eligible country' means a nation, other
than the United States, that--
``(A) becomes a WTO member country after the date of the
enactment of the Uruguay Round Agreements Act;
``(B) on such date of enactment is, or after such date of
enactment becomes, a nation adhering to the Berne Convention;
``(C) adheres to the WIPO Copyright Treaty;
``(D) adheres to the WIPO Performances and Phonograms
Treaty; or
``(E) after such date of enactment becomes subject to a
proclamation under subsection (g).'';
(3) in paragraph (6)--
(A) in subparagraph (C)(iii) by striking ``and'' after the
semicolon;
(B) at the end of subparagraph (D) by striking the period
and inserting ``; and''; and
(C) by adding after subparagraph (D) the following:
``(E) if the source country for the work is an eligible
country solely by virtue of its adherence to the WIPO
Performances and Phonograms Treaty, is a sound recording.'';
(4) in paragraph (8)(B)(i)--
(A) by inserting ``of which'' before ``the majority''; and
(B) by striking ``of eligible countries''; and
(5) by striking paragraph (9).
(d) Registration and Infringement Actions.--Section 411(a)
of title 17, United States Code, is amended in the first
sentence--
(1) by striking ``actions for infringement of copyright in
Berne Convention works whose country of origin is not the
United States and''; and
(2) by inserting ``United States'' after ``no action for
infringement of the copyright in any''.
(e) Statute of Limitations.--Section 507(a) of title 17,
United State Code, is amended by striking ``No'' and
inserting ``Except as expressly provided otherwise in this
title, no''.
SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT
MANAGEMENT INFORMATION.
(a) In General.--Title 17, United States Code is amended by
adding at the end the following new chapter:
``CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS
``Sec.
``1201. Circumvention of copyright protection systems.
``1202. Integrity of copyright management information.
``1203. Civil remedies.
``1204. Criminal offenses and penalties.
``1205. Savings clause.
``1203. Civil remedies.
``Sec. 1201. Circumvention of copyright protection systems
``(a) Violations Regarding Circumvention of Technological
Measures.--(1)(A) No person shall circumvent a technological
measure that effectively controls access to a work protected
under this title. The prohibition contained in the preceding
sentence shall take effect at the end of the 2-year period
beginning on the date of the enactment of this chapter.
``(B)(i) The prohibition contained in subparagraph (A)
shall not apply to persons
[[Page H7076]]
with respect to a copyrighted work which is in a particular
class of works and to which such persons have gained initial
lawful access, if such persons are, or are likely to be in
the succeeding 3-year period, adversely affected by virtue of
such prohibition in their ability to make noninfringing uses
of that particular class of works under this title, as
determined under subparagraph (C).
``(ii) The prohibition contained in subparagraph (A) shall
not apply to nonprofit libraries, archives, or educational
institutions, or to any entity described in section
501(c)(3), (4), or (6) of the Internal Revenue Code of 1986
that is exempt from tax under section 501(a) of such Code,
with respect to a particular class of works, if such entities
are, or are likely to be in the succeeding 3-year period,
adversely affected by virtue of such prohibition in their
ability to make noninfringing uses of that particular class
of works under this title, as determined under subparagraph
(C).
``(C) During the 2-year period described in subparagraph
(A), and during each succeeding 3-year period, the Secretary
of Commerce, in consultation with the Under Secretary of
Commerce for Intellectual Property Policy, the Assistant
Secretary of Commerce for Communications and Information, and
the Register of Copyrights, shall conduct a rulemaking on the
record to make the determination for purposes of subparagraph
(B) of whether nonprofit libraries, archives, or educational
institutions and other entities described in subparagraph (B)
or persons who have gained initial lawful access to a
copyrighted work are, or are likely to be in the succeeding
3-year period, adversely affected by the prohibition under
subparagraph (A) in their ability to make noninfringing uses
under this title of a particular class of copyrighted works.
In conducting such rulemaking, the Secretary shall examine--
``(i) the availability for use of copyrighted works;
``(ii) the availability for use of works for nonprofit
archival, preservation, and educational purposes;
``(iii) the impact of the prohibition on the circumvention
of technological measures applied to copyrighted works on
criticism, comment, news reporting, teaching, scholarship, or
research;
``(iv) the effect of circumvention of technological
measures on the market for or value of copyrighted works; and
``(v) such other factors as the Secretary, in consultation
with the Under Secretary of Commerce for Intellectual
Property Policy, the Assistant Secretary of Commerce for
Communications and Information, and the Register of
Copyrights, considers appropriate.
``(D) The Secretary shall publish any class of copyrighted
works for which the Secretary has determined, pursuant to the
rulemaking conducted under subparagraph (C), that
noninfringing uses by nonprofit libraries, archives, or
educational institutions and other entities described in
subparagraph (B) or by persons who have gained initial lawful
access to a copyrighted work are, or are likely to be,
adversely affected, and the prohibition contained in
subparagraph (A) shall not apply to such entities with
respect to such class of works, or to such persons with
respect to such copyrighted work, for the ensuing 3-year
period.
``(E) Neither the exception under subparagraph (B) from the
applicability of the prohibition contained in subparagraph
(A), nor any determination made in a rulemaking conducted
under subparagraph (C), may be used as a defense in any
action to enforce any provision of this title other than this
paragraph.
``(2) No person shall manufacture, import, offer to the
public, provide, or otherwise traffic in any technology,
product, service, device, component, or part thereof, that--
``(A) is primarily designed or produced for the purpose of
circumventing a technological measure that effectively
controls access to a work protected under this title;
``(B) has only limited commercially significant purpose or
use other than to circumvent a technological measure that
effectively controls access to a work protected under this
title; or
``(C) is marketed by that person or another acting in
concert with that person with that person's knowledge for use
in circumventing a technological measure that effectively
controls access to a work protected under this title.
``(3) As used in this subsection--
``(A) to `circumvent a technological measure' means to
descramble a scrambled work, to decrypt an encrypted work, or
otherwise to avoid, bypass, remove, deactivate, or impair a
technological measure, without the authority of the copyright
owner; and
``(B) a technological measure `effectively controls access
to a work' if the measure, in the ordinary course of its
operation, requires the application of information, or a
process or a treatment, with the authority of the copyright
owner, to gain access to the work.
``(b) Additional Violations.--(1) No person shall
manufacture, import, offer to the public, provide, or
otherwise traffic in any technology, product, service,
device, component, or part thereof, that--
``(A) is primarily designed or produced for the purpose of
circumventing protection afforded by a technological measure
that effectively protects a right of a copyright owner under
this title in a work or a portion thereof;
``(B) has only limited commercially significant purpose or
use other than to circumvent protection afforded by a
technological measure that effectively protects a right of a
copyright owner under this title in a work or a portion
thereof; or
``(C) is marketed by that person or another acting in
concert with that person with that person's knowledge for use
in circumventing protection afforded by a technological
measure that effectively protects a right of a copyright
owner under this title in a work or a portion thereof.
``(2) As used in this subsection--
``(A) to `circumvent protection afforded by a technological
measure' means avoiding, bypassing, removing, deactivating,
or otherwise impairing a technological measure; and
``(B) a technological measure `effectively protects a right
of a copyright owner under this title' if the measure, in the
ordinary course of its operation, prevents, restricts, or
otherwise limits the exercise of a right of a copyright owner
under this title.
``(c) Other Rights, Etc., Not Affected.--(1) Nothing in
this section shall affect rights, remedies, limitations, or
defenses to copyright infringement, including fair use, under
this title.
``(2) Nothing in this section shall enlarge or diminish
vicarious or contributory liability for copyright
infringement in connection with any technology, product,
service, device, component, or part thereof.
``(3) Nothing in this section shall require that the design
of, or design and selection of parts and components for, a
consumer electronics, telecommunications, or computing
product provide for a response to any particular
technological measure.
``(4) Nothing in this section shall enlarge or diminish any
rights of free speech or the press for activities using
consumer electronics, telecommunications, or computing
products.
``(d) Exemption for Nonprofit Libraries, Archives, and
Educational Institutions.--(1) A nonprofit library, archives,
or educational institution which gains access to a
commercially exploited copyrighted work solely in order to
make a good faith determination of whether to acquire a copy
of that work for the sole purpose of engaging in conduct
permitted under this title shall not be in violation of
subsection (a)(1)(A). A copy of a work to which access has
been gained under this paragraph--
``(A) may not be retained longer than necessary to make
such good faith determination; and
``(B) may not be used for any other purpose.
``(2) The exemption made available under paragraph (1)
shall only apply with respect to a work when an identical
copy of that work is not reasonably available in another
form.
``(3) A nonprofit library, archives, or educational
institution that willfully for the purpose of commercial
advantage or financial gain violates paragraph (1)--
``(A) shall, for the first offense, be subject to the civil
remedies under section 1203; and
``(B) shall, for repeated or subsequent offenses, in
addition to the civil remedies under section 1203, forfeit
the exemption provided under paragraph (1).
``(4) This subsection may not be used as a defense to a
claim under subsection (a)(2) or (b), nor may this subsection
permit a nonprofit library, archives, or educational
institution to manufacture, import, offer to the public,
provide, or otherwise traffic in any technology, product,
service, component, or part thereof, which circumvents a
technological measure.
``(5) In order for a library or archives to qualify for the
exemption under this subsection, the collections of that
library or archives shall be--
``(A) open to the public; or
``(B) available not only to researchers affiliated with the
library or archives or with the institution of which it is a
part, but also to other persons doing research in a
specialized field.
``(e) Law Enforcement and Intelligence Activities.--This
section does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of an
officer, agent, or employee of the United States, a State, or
a political subdivision of a State, or a person acting
pursuant to a contract with the United States, a State, or a
political subdivision of a State.
``(f) Reverse Engineering.--(1) Notwithstanding the
provisions of subsection (a)(1)(A), a person who has lawfully
obtained the right to use a copy of a computer program may
circumvent a technological measure that effectively controls
access to a particular portion of that program for the sole
purpose of identifying and analyzing those elements of the
program that are necessary to achieve interoperability of an
independently created computer program with other programs,
and that have not previously been readily available to the
person engaging in the circumvention, to the extent any such
acts of identification and analysis do not constitute
infringement under this title.
``(2) Notwithstanding the provisions of subsections (a)(2)
and (b), a person may develop and employ technological means
to circumvent a technological measure, or to circumvent
protection afforded by a technological measure, in order for
that person to make the identification and analysis permitted
under paragraph (1), or for the limited purpose of that
person achieving interoperability of an independently created
computer program with other programs, if such means are
necessary to achieve such interoperability, to the extent
that doing so does not constitute infringement under this
title.
[[Page H7077]]
``(3) The information acquired through the acts permitted
under paragraph (1), and the means permitted under paragraph
(2), may be made available to others if the person referred
to in paragraphs (1) and (2) provides such information or
means solely for the purpose of achieving interoperability of
an independently created computer program with other
programs, and to the extent that doing so does not constitute
infringement under this title or violate other applicable
law.
``(4) For purposes of this subsection, the term
`interoperability' means the ability of computer programs to
exchange information, and of such programs mutually to use
the information which has been exchanged.
``(g) Encryption Research.--
``(1) Definitions.--For purposes of this subsection--
``(A) the term `encryption research' means activities
necessary to identify and analyze flaws and vulnerabilities
of encryption technologies applied to copyrighted works, if
these activities are conducted to advance the state of
knowledge in the field of encryption technology or to assist
in the development of encryption products; and
``(B) the term `encryption technology' means the scrambling
and descrambling of information using mathematical formulas
or algorithms.
``(2) Permissible acts of encryption research.--
Notwithstanding the provisions of subsection (a)(1)(A), it is
not a violation of that subsection for a person to circumvent
a technological measure as applied to a copy, phonorecord,
performance, or display of a published work in the course of
an act of good faith encryption research if--
``(A) the person lawfully obtained the encrypted copy,
phonorecord, performance, or display of the published work;
``(B) such act is necessary to conduct such encryption
research;
``(C) the person made a good faith effort to obtain
authorization before the circumvention; and
``(D) such act does not constitute infringement under this
title or a violation of applicable law other than this
section, including section 1030 of title 18 and those
provisions of title 18 amended by the Computer Fraud and
Abuse Act of 1986.
``(3) Factors in determining exemption.--In determining
whether a person qualifies for the exemption under paragraph
(2), the factors to be considered shall include--
``(A) whether the information derived from the encryption
research was disseminated, and if so, whether it was
disseminated in a manner reasonably calculated to advance the
state of knowledge or development of encryption technology,
versus whether it was disseminated in a manner that
facilitates infringement under this title or a violation of
applicable law other than this section, including a violation
of privacy or breach of security;
``(B) whether the person is engaged in a legitimate course
of study, is employed, or is appropriately trained or
experienced, in the field of encryption technology; and
``(C) whether the person provides the copyright owner of
the work to which the technological measure is applied with
notice of the findings and documentation of the research, and
the time when such notice is provided.
``(4) Use of technological means for research activities.--
Notwithstanding the provisions of subsection (a)(2), it is
not a violation of that subsection for a person to--
``(A) develop and employ technological means to circumvent
a technological measure for the sole purpose of that person
performing the acts of good faith encryption research
described in paragraph (2); and
``(B) provide the technological means to another person
with whom he or she is working collaboratively for the
purpose of conducting the acts of good faith encryption
research described in paragraph (2) or for the purpose of
having that other person verify his or her acts of good faith
encryption research described in paragraph (2).
``(5) Report to congress.--Not later than 1 year after the
date of the enactment of this chapter, the Under Secretary of
Commerce for Intellectual Property Policy, the Assistant
Secretary of Commerce for Communications and Information, and
the Register of Copyrights shall jointly report to the
Congress on the effect this subsection has had on--
``(A) encryption research and the development of encryption
technology;
``(B) the adequacy and effectiveness of technological
measures designed to protect copyrighted works; and
``(C) protection of copyright owners against the
unauthorized access to their encrypted copyrighted works.
The report shall include legislative recommendations, if any.
``(h) Excpetions Regarding Minors.--(1) In applying
subsection (a) to a component or part, the court may consider
the necessity for its intended and actual incorporation in a
technology, product, service, or device, which--
``(A) does not itself violate the provisions of this title;
and
``(B) has the sole purpose to prevent the access of minors
to material on the Internet.
``(2) Notwithstanding the provisions of subsection
(a)(1)(A), it is not a violation of that subsection for a
parent to circumvent a technological measure that effectively
controls access to a test, examination, or other evaluation
of his or her minor child's abilities that is given by a
nonprofit educational institution if--
``(A) the parent made a good faith effort to obtain
authorization before the circumvention; and
``(B) such act is necessary to obtain a copy of such test,
examination, or other evaluation.
``(i) Protection of Personally Identifying Information.--
(1) Circumvention permitted.--Notwithstanding the
provisions of subsection (a)(1)(A), it is not a violation of
that subsection for a person to circumvent a technological
measure that effectively controls access to a work protected
under this title, if--
``(A) the technological measure, or the work it protects,
contains the capability of collecting or disseminating
personally identifying information reflecting the online
activities of a natural person who seeks to gain access to
the work protected;
``(B) in the normal course of its operation, the
technological measure, or the work it protects, collects or
disseminates personally identifying information about the
person who seeks to gain access to the work protected,
without providing conspicuous notice of such collection or
dissemination to such person, and without providing such
person with the capability to prevent or restrict such
collection or dissemination;
``(C) the act of circumvention has the sole effect of
identifying and disabling the capability described in
subparagraph (A), and has no other effect on the ability of
any person to gain access to any work; and
``(D) the act of circumvention is carried out solely for
the purpose of preventing the collection or dissemination of
personally identifying information about a natural person who
seeks to gain access to the work protected, and is not in
violation of any other law.
``(2) Inapplicability to certain technological measures.--
This subsection does not apply to a technological measure, or
a work it protects, that does not collect or disseminate
personally identifying information and that is disclosed to a
user as not having or using such capability.
``Sec. 1202. Integrity of copyright management information
``(a) False Copyright Management Information.--No person
shall knowingly and with the intent to induce, enable,
facilitate, or conceal infringement--
``(1) provide copyright management information that is
false, or
``(2) distribute or import for distribution copyright
management information that is false.
``(b) Removal or Alteration of Copyright Management
Information.--No person shall, without the authority of the
copyright owner or the law--
``(1) intentionally remove or alter any copyright
management information,
``(2) distribute or import for distribution copyright
management information knowing that the copyright management
information has been removed or altered without authority of
the copyright owner or the law, or
``(3) distribute, import for distribution, or publicly
perform works, copies of works, or phonorecords, knowing that
copyright management information has been removed or altered
without authority of the copyright owner or the law,
knowing, or, with respect to civil remedies under section
1203, having reasonable grounds to know, that it will induce,
enable, facilitate, or conceal an infringement of any right
under this title.
``(c) Definition.--As used in this section, the term
`copyright management information' means any of the following
information conveyed in connection with copies or
phonorecords of a work or performances or displays of a work,
including in digital form, except that such term does not
include any personally identifying information about a user
of a work or of a copy, phonorecord, performance, or display
of a work:
``(1) The title and other information identifying the work,
including the information set forth on a notice of copyright.
``(2) The name of, and other identifying information about,
the author of a work.
``(3) The name of, and other identifying information about,
the copyright owner of the work, including the information
set forth in a notice of copyright.
``(4) With the exception of public performances of works by
radio and television broadcast stations, the name of, and
other identifying information about, a performer whose
performance is fixed in a work other than an audiovisual
work.
``(5) With the exception of public performances of works by
radio and television broadcast stations, in the case of an
audiovisual work, the name of, and other identifying
information about, a writer, performer, or director who is
credited in the audiovisual work.
``(6) Terms and conditions for use of the work.
``(7) Identifying numbers or symbols referring to such
information or links to such information.
``(8) Such other information as the Register of Copyrights
may prescribe by regulation, except that the Register of
Copyrights may not require the provision of any information
concerning the user of a copyrighted work.
``(d) Law Enforcement and Intelligence Activities.--This
section does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of an
officer,
[[Page H7078]]
agent, or employee of the United States, a State, or a
political subdivision of a State, or a person acting pursuant
to a contract with the United States, a State, or a political
subdivision of a State.
``(e) Limitations on Liability.--
``(1) Analog transmissions.--In the case of an analog
transmission, a person who is making transmissions in its
capacity as a broadcast station, or as a cable system, or
someone who provides programming to such station or system,
shall not be liable for a violation of subsection (b) if--
``(A) avoiding the activity that constitutes such violation
is not technically feasible or would create an undue
financial hardship on such person; and
``(B) such person did not intend, by engaging in such
activity, to induce, enable, facilitate, or conceal
infringement of a right under this title.
``(2) Digital transmissions.--
``(A) If a digital transmission standard for the placement
of copyright management information for a category of works
is set in a voluntary, consensus standard-setting process
involving a representative cross-section of broadcast
stations or cable systems and copyright owners of a category
of works that are intended for public performance by such
stations or systems, a person identified in paragraph (1)
shall not be liable for a violation of subsection (b) with
respect to the particular copyright management information
addressed by such standard if--
``(i) the placement of such information by someone other
than such person is not in accordance with such standard; and
``(ii) the activity that constitutes such violation is not
intended to induce, enable, facilitate, or conceal
infringement of a right under this title.
``(B) Until a digital transmission standard has been set
pursuant to subparagraph (A) with respect to the placement of
copyright management information for a category or works, a
person identified in paragraph (1) shall not be liable for a
violation of subsection (b) with respect to such copyright
management information, if the activity that constitutes such
violation is not intended to induce, enable, facilitate, or
conceal infringement of a right under this title, and if--
``(i) the transmission of such information by such person
would result in a perceptible visual or aural degradation of
the digital signal; or
``(ii) the transmission of such information by such person
would conflict with--
``(I) an applicable government regulation relating to
transmission of information in a digital signal;
``(II) an applicable industry-wide standard relating to the
transmission of information in a digital signal that was
adopted by a voluntary consensus standards body prior to the
effective date of this chapter; or
``(III) an applicable industry-wide standard relating to
the transmission of information in a digital signal that was
adopted in a voluntary, consensus standards-setting process
open to participation by a representative cross-section of
broadcast stations or cable systems and copyright owners of a
category of works that are intended for public performance by
such stations or systems.
``(3) Definitions.--As used in this subsection--
``(A) the term `broadcast station' has the meaning given
that term in section 3 of the Communications Act of 1934 (47
U.S.C. 153)); and
``(B) the term `cable system' has the meaning given that
term in section 602 of the Communications Act of 1934 (47
U.S.C. 522)).
``Sec. 1203. Civil remedies
``(a) Civil Actions.--Any person injured by a violation of
section 1201 or 1202 may bring a civil action in an
appropriate United States district court for such violation.
``(b) Powers of the Court.--In an action brought under
subsection (a), the court--
``(1) may grant temporary and permanent injunctions on such
terms as it deems reasonable to prevent or restrain a
violation, but in no event shall impose a prior restraint on
free speech or the press protected under the 1st amendment to
the Constitution;
``(2) at any time while an action is pending, may order the
impounding, on such terms as it deems reasonable, of any
device or product that is in the custody or control of the
alleged violator and that the court has reasonable cause to
believe was involved in a violation;
``(3) may award damages under subsection (c);
``(4) in its discretion may allow the recovery of costs by
or against any party other than the United States or an
officer thereof;
``(5) in its discretion may award reasonable attorney's
fees to the prevailing party; and
``(6) may, as part of a final judgment or decree finding a
violation, order the remedial modification or the destruction
of any device or product involved in the violation that is in
the custody or control of the violator or has been impounded
under paragraph (2).
``(c) Award of Damages.--
``(1) In general.--Except as otherwise provided in this
title, a person committing a violation of section 1201 or
1202 is liable for either--
``(A) the actual damages and any additional profits of the
violator, as provided in paragraph (2), or
``(B) statutory damages, as provided in paragraph (3).
``(2) Actual damages.--The court shall award to the
complaining party the actual damages suffered by the party as
a result of the violation, and any profits of the violator
that are attributable to the violation and are not taken into
account in computing the actual damages, if the complaining
party elects such damages at any time before final judgment
is entered.
``(3) Statutory damages.--(A) At any time before final
judgment is entered, a complaining party may elect to recover
an award of statutory damages for each violation of section
1201 in the sum of not less than $200 or more than $2,500 per
act of circumvention, device, product, component, offer, or
performance of service, as the court considers just.
``(B) At any time before final judgment is entered, a
complaining party may elect to recover an award of statutory
damages for each violation of section 1202 in the sum of not
less than $2,500 or more than $25,000.
``(4) Repeated violations.--In any case in which the
injured party sustains the burden of proving, and the court
finds, that a person has violated section 1201 or 1202 within
three years after a final judgment was entered against the
person for another such violation, the court may increase the
award of damages up to triple the amount that would otherwise
be awarded, as the court considers just.
``(5) Innocent violations.--
``(A) In general.--The court in its discretion may reduce
or remit the total award of damages in any case in which the
violator sustains the burden of proving, and the court finds,
that the violator was not aware and had no reason to believe
that its acts constituted a violation.
``(B) Nonprofit library, archives, or educational
institutions.--In the case of a nonprofit library, archives,
or educational institution, the court shall remit damages in
any case in which the library, archives, or educational
institution sustains the burden of proving, and the court
finds, that the library, archives, or educational institution
was not aware and had no reason to believe that its acts
constituted a violation.
``Sec. 1204. Criminal offenses and penalties
``(a) In General.--Any person who violates section 1201 or
1202 willfully and for purposes of commercial advantage or
private financial gain--
``(1) shall be fined not more than $500,000 or imprisoned
for not more than 5 years, or both, for the first offense;
and
``(2) shall be fined not more than $1,000,000 or imprisoned
for not more than 10 years, or both, for any subsequent
offense.
``(b) Limitation for Nonprofit Library, Archives, or
Educational Institution.--Subsection (a) shall not apply to a
nonprofit library, archives, or educational institution.
``(c) Statute of Limitations.--No criminal proceeding shall
be brought under this section unless such proceeding is
commenced within five years after the cause of action arose.
``Sec. 1205. Savings clause
``Nothing in this chapter abrogates, diminishes, or weakens
the provisions of, nor provides any defense or element of
mitigation in a criminal prosecution or civil action under,
any Federal or State law that prevents the violation of the
privacy of an individual in connection with the individual's
use of the Internet.''.
(b) Conforming amendment.--The table of chapters for title
17, United States Code, is amended by adding after the item
relating to chapter 11 the following:
``12. Copyright Protection and Management Systems...........1201''.....
SEC. 104. DEVELOPMENT AND IMPLEMENTATION OF TECHNOLOGICAL
PROTECTION MEASURES.
(a) Statement of Congressional Policy and Objective.--It is
the sense of the Congress that technological measures that
effectively control access to works protected under title 17,
United States Code, or that effectively protect a right of a
copyright owner under such title play a crucial role in
safeguarding the interests of both copyright owners and
lawful users of copyrighted works in digital formats, by
facilitating lawful uses of such works while protecting the
private property interests of holders of rights under title
17, United States Code. Accordingly, the expeditious
implementation of such measures, developed by the private
sector is a key factor in realizing the full benefits of
making available copyrighted works through digital networks,
including the benefits set forth in this section.
(b) Technological Measures.--The technological measures
referred to in subsection (a) shall include, but not be
limited to, those which--
(1) enable nonprofit libraries, for nonprofit purposes, to
continue to lend to library users copies or phonorecords that
such libraries have lawfully acquired, including the lending
of such copies or phonorecords in digital formats in a manner
that prevents infringement;
(2) effectively protect against the infringement of
exclusive rights under title 17, United States Code, and
facilitate the exercise of those exclusive rights; and
(3) promote the development and implementation of diverse
methods, mechanisms, and arrangements in the marketplace for
making available copyrighted works in digital formats which
provide opportunities for individual members of the public to
make lawful uses of copyrighted works in digital formats.
[[Page H7079]]
(c) Procedures for Developing and Implementing
Technological Measures.--The technological measures whose
development and implementation the Congress anticipates
include, but are not limited to, those which--
(1) are developed pursuant to a broad consensus in an open,
fair, voluntary, and multi-industry process;
(2) are made available on reasonable and nondiscriminatory
terms; and
(3) do not impose substantial costs or burdens on copyright
owners or on manufacturers of hardware or software used in
conjunction with copyrighted works in digital formats.
(d) Oversight and Reporting.--(1) The Under Secretary of
Commerce for Intellectual Property Policy, the Assistant
Secretary of Commerce for Communications and Information, and
the Register of Copyrights shall jointly review the impact of
the enactment of section 1201 of title 17, United States
Code, on the access of individual users to copyrighted works
in digital formats and shall jointly report annually thereon
to the Committees on the Judiciary and on Commerce of the
House of Representatives and the Committees on the Judiciary
and on Commerce, Science, and Transportation of the Senate.
(2) Each report under paragraph (1) shall address the
following issues:
(A) The status of the development and implementation of
technological measures described in this section, including
measures that advance the objectives of this section, and the
effectiveness of such technological measures in protecting
the private property interests of copyright owners under
title 17, United States Code.
(B) The degree to which individual lawful users of
copyrighted works--
(i) have access to the Internet and digital networks
generally;
(ii) are dependent upon such access for their use of
copyrighted works;
(iii) have available to them other channels for obtaining
and using copyrighted works, other than the Internet and
digital networks generally;
(iv) are required to pay copyright owners or intermediaries
for each lawful use of copyrighted works in digital formats
to which they have access; and
(v) are able to utilize nonprofit libraries to obtain
access, through borrowing without payment by the user, to
copyrighted works in digital formats.
(C) The degree to which infringement of copyrighted works
in digital formats is occurring.
(D) Whether and the extent to which section 1201 of title
17, United States Code, is asserted as a basis for liability
in claims brought against persons conducting research and
development, including reverse engineering of copyrighted
works, and the extent to which such claims constitute a
serious impediment to the development and production of
competitive goods and services.
(E) The degree to which individual users of copyrighted
materials in digital formats are able effectively to protect
themselves against the use of technological measures to carry
out or facilitate the undisclosed collection and
dissemination of personally identifying information
concerning the access to and use of such materials by such
users.
(F) Such other issues as the Under Secretary of Commerce
for Intellectual Property Policy, the Assistant Secretary of
Commerce for Communications and Information, and the Register
of Copyrights identify as relevant to the impact of the
enactment of section 1201 of title 17, United States Code, on
the access of individual users to copyrighted works in
digital formats.
(3) The first report under this subsection shall be
submitted not later than one year after the date of the
enactment of this Act, and the last such report shall be
submitted not later than three years after the date of the
enactment of this Act.
(4) The reports under this subsection may include such
recommendations for additional legislative action as the
Under Secretary of Commerce for Intellectual Property Policy,
the Assistant Secretary of Commerce for Communications and
Information, and the Register of Copyrights consider
advisable in order to further the objectives of this section.
SEC. 105. EVALUATION OF IMPACT OF COPYRIGHT LAW AND
AMENDMENTS ON ELECTRONIC COMMERCE AND
TECHNOLOGICAL DEVELOPMENT.
(a) Evaluation by Under Secretary of Commerce and Register
of Copyrights.--The Under Secretary of Commerce for
Intellectual Property Policy, the Assistant Secretary of
Commerce for Communications and Information, and the Register
of Copyrights shall jointly evaluate--
(1) the effects of the amendments made by this title and
the development of electronic commerce and associated
technology on the operation of sections 109 and 117 of title
17, United States Code; and
(2) the relationship between existing and emergent
technology and the operation of sections 109 and 117 of title
17, United States Code.
(c) Report to Congress.--The Under Secretary of Commerce
for Intellectual Property Policy, the Assistant Secretary of
Commerce for Communications and Information, and the Register
of Copyrights shall, not later than 24 months after the date
of the enactment of this Act, submit to the Congress a joint
report on the evaluation conducted under subsection (b),
including any legislative recommendations the Under
Secretary, the Assistant Secretary, and the Register may
have.
SEC. 106. EFFECTIVE DATE.
(a) In General.--Subject to subsection (b), this title and
the amendments made by this title shall take effect on the
date of the enactment of this Act.
(b) Amendments Relating to Certain International
Agreements.--(1) The following shall take effect upon the
entry into force of the WIPO Copyright Treaty with respect to
the United States:
(A) Paragraph (5) of the definition of ``international
agreement'' contained in section 101 of title 17, United
States Code, as amended by section 102(a)(4) of this Act.
(B) The amendment made by section 102(a)(6) of this Act.
(C) Subparagraph (C) of section 104A(h)(1) of title 17,
United States Code, as amended by section 102(c)(1) of this
Act.
(D) Subparagraph (C) of section 104A(h)(3) of title 17,
United States Code, as amended by section 102(c)(2) of this
Act.
(2) The following shall take effect upon the entry into
force of the WIPO Performances and Phonograms Treaty with
respect to the United States:
(A) Paragraph (6) of the definition of ``international
agreement'' contained in section 101 of title 17, United
States Code, as amended by section 102(a)(4) of this Act.
(B) The amendment made by section 102(a)(7) of this Act.
(C) The amendment made by section 102(b)(2) of this Act.
(D) Subparagraph (D) of section 104A(h)(1) of title 17,
United States Code, as amended by section 102(c)(1) of this
Act.
(E) Subparagraph (D) of section 104A(h)(3) of title 17,
United States Code, as amended by section 102(c)(2) of this
Act.
(F) The amendments made by section 102(c)(3) of this Act.
TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
SEC. 201. SHORT TITLE.
This title may be cited as the ``Online Copyright
Infringement Liability Limitation Act''.
SEC. 202. LIMITATIONS ON LIABILITY FOR COPYRIGHT
INFRINGEMENT.
(a) In General.--Chapter 5 of title 17, United States Code,
is amended by adding after section 511 the following new
section:
``Sec. 512. Limitations on liability relating to material
online
``(a) Transitory Digital Network Communications.--A service
provider shall not be liable for monetary relief, or, except
as provided in subsection (i), for injunctive or other
equitable relief, for infringement of copyright by reason of
the provider's transmitting, routing, or providing
connections for, material through a system or network
controlled or operated by or for the service provider, or by
reason of the intermediate and transient storage of that
material in the course of such transmitting, routing, or
providing connections, if--
``(1) the transmission of the material was initiated by or
at the direction of a person other than the service provider;
``(2) the transmission, routing, provision of connections,
or storage is carried out through an automatic technical
process without selection of the material by the service
provider;
``(3) the service provider does not select the recipients
of the material except as an automatic response to the
request of another person;
``(4) no copy of the material made by the service provider
in the course of such intermediate or transient storage is
maintained on the system or network in a manner ordinarily
accessible to anyone other than anticipated recipients, and
no such copy is maintained on the system or network in a
manner ordinarily accessible to such anticipated recipients
for a longer period than is reasonably necessary for the
transmission, routing, or provision of connections; and
``(5) the material is transmitted through the system or
network without modification of its content.
``(b) System Caching.--
``(1) Limitation on liability.--A service provider shall
not be liable for monetary relief, or, except as provided in
subsection (i), for injunctive or other equitable relief, for
infringement of copyright by reason of the intermediate and
temporary storage of material on a system or network
controlled or operated by or for the service provider in a
case in which--
``(A) the material is made available online by a person
other than the service provider,
``(B) the material is transmitted from the person described
in subparagraph (A) through the system or network to a person
other than the person described in subparagraph (A) at the
direction of that other person, and
``(C) the storage is carried out through an automatic
technical process for the purpose of making the material
available to users of the system or network who, after the
material is transmitted as described in subparagraph (B),
request access to the material from the person described in
subparagraph (A),
if the conditions set forth in paragraph (2) are met.
(2) Conditions.--The conditions referred to in paragraph
(1) are that--
``(A) the material described in paragraph (1) is
transmitted to the subsequent users described in paragraph
(1)(C) without modification to its content from the manner in
which
[[Page H7080]]
the material was transmitted from the person described in
paragraph (1)(A);
``(B) the service provider described in paragraph (1)
complies with rules concerning the refreshing, reloading, or
other updating of the material when specified by the person
making the material available online in accordance with a
generally accepted industry standard data communications
protocol for the system or network through which that person
makes the material available, except that this subparagraph
applies only if those rules are not used by the person
described in paragraph (1)(A) to prevent or unreasonably
impair the intermediate storage to which this subsection
applies;
``(C) the service provider does not interfere with the
ability of technology associated with the material to return
to the person described in paragraph (1)(A) the information
that would have been available to that person if the material
had been obtained by the subsequent users described in
paragraph (1)(C) directly from that person, except that this
subparagraph applies only if that technology--
``(i) does not significantly interfere with the performance
of the provider's system or network or with the intermediate
storage of the material;
``(ii) is consistent with generally accepted industry
standard communications protocols; and
``(iii) does not extract information from the provider's
system or network other than the information that would have
been available to the person described in paragraph (1)(A) if
the subsequent users had gained access to the material
directly from that person;
``(D) if the person described in paragraph (1)(A) has in
effect a condition that a person must meet prior to having
access to the material, such as a condition based on payment
of a fee or provision of a password or other information, the
service provider permits access to the stored material in
significant part only to users of its system or network that
have met those conditions and only in accordance with those
conditions; and
``(E) if the person described in paragraph (1)(A) makes
that material available online without the authorization of
the copyright owner of the material, the service provider
responds expeditiously to remove, or disable access to, the
material that is claimed to be infringing upon notification
of claimed infringement as described in subsection (c)(3),
except that this subparagraph applies only if--
``(i) the material has previously been removed from the
originating site or access to it has been disabled, or a
court has ordered that the material be removed from the
originating site or that access to the material on the
originating site be disabled; and
``(ii) the party giving the notification includes in the
notification a statement confirming that the material has
been removed from the originating site or access to it has
been disabled or that a court has ordered that the material
be removed from the originating site or that access to the
material on the originating site be disabled.
``(c) Information Residing on Systems or Networks at
Direction of Users.--
``(1) In general.--A service provider shall not be liable
for monetary relief, or, except as provided in subsection
(i), for injunctive or other equitable relief, for
infringement of copyright by reason of the storage at the
direction of a user of material that resides on a system or
network controlled or operated by or for the service
provider, if the service provider--
``(A)(i) does not have actual knowledge that the material
or an activity using the material on the system or network is
infringing;
``(ii) in the absence of such actual knowledge, is not
aware of facts or circumstances from which infringing
activity is apparent; or
``(iii) upon obtaining such knowledge or awareness, acts
expeditiously to remove, or disable access to, the material;
``(B) does not receive a financial benefit directly
attributable to the infringing activity, in a case in which
the service provider has the right and ability to control
such activity; and
``(C) upon notification of claimed infringement as
described in paragraph (4), responds expeditiously to remove,
or disable access to, the material that is claimed to be
infringing or to be the subject of infringing activity.
``(2) Limitation on liability of nonprofit educational
institutions.--A nonprofit educational institution that is a
service provider shall not be liable for monetary relief, or,
except as provided in subsection (i), for injunctive or other
equitable relief, by reason of the acts or omissions of a
faculty member, administrative employee, student, or graduate
student, unless such faculty member, administrative employee,
student, or graduate student is exercising managerial or
operational responsibilities that directly relate to the
institution's function as a service provider.
``(3) Designated agent.--The limitations on liability
established in this subsection apply to a service provider
only if the service provider has designated an agent to
receive notifications of claimed infringement described in
paragraph (4), by making available through its service,
including on its website in a location accessible to the
public, and by providing to the Copyright Office,
substantially the following information:
``(A) the name, address, phone number, and electronic mail
address of the agent.
``(B) other contact information which the Register of
Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory
of agents available to the public for inspection, including
through the Internet, in both electronic and hard copy
formats, and may require payment of a fee by service
providers to cover the costs of maintaining the directory.
``(4) Elements of notification.--
``(A) To be effective under this subsection, a notification
of claimed infringement must be a written communication
provided to the designated agent of a service provider that
includes substantially the following:
``(i) A physical or electronic signature of a person
authorized to act on behalf of the owner of an exclusive
right that is allegedly infringed.
``(ii) Identification of the copyrighted work claimed to
have been infringed, or, if multiple copyrighted works at a
single online site are covered by a single notification, a
representative list of such works at that site.
``(iii) Identification of the material that is claimed to
be infringing or to be the subject of infringing activity and
that is to be removed or access to which is to be disabled,
and information reasonably sufficient to permit the service
provider to locate the material.
``(iv) Information reasonably sufficient to permit the
service provider to contact the complaining party, such as an
address, telephone number, and, if available, an electronic
mail address at which the complaining party may be contacted.
``(v) A statement that the complaining party has a good
faith belief that use of the material in the manner
complained of is not authorized by the copyright owner, its
agent, or the law.
``(vi) A statement that the information in the notification
is accurate, and under penalty of perjury, that the
complaining party is authorized to act on behalf of the owner
of an exclusive right that is allegedly infringed.
``(B)(i) Subject to clause (ii), a notification from a
copyright owner or from a person authorized to act on behalf
of the copyright owner that fails to comply substantially
with the provisions of subparagraph (A) shall not be
considered under paragraph (1)(A) in determining whether a
service provider has actual knowledge or is aware of facts or
circumstances from which infringing activity is apparent.
``(ii) In a case in which the notification that is provided
to the service provider's designated agent fails to comply
substantially with all the provisions of subparagraph (A) but
substantially complies with clauses (ii), (iii), and (iv) of
subparagraph (A), clause (i) of this subparagraph applies
only if the service provider promptly attempts to contact the
person making the notification or takes other reasonable
steps to assist in the receipt of notification that
substantially complies with all the provisions of
subparagraph (A).
``(d) Information Location Tools.--A service provider shall
not be liable for monetary relief, or, except as provided in
subsection (i), for injunctive or other equitable relief, for
infringement of copyright by reason of the provider referring
or linking users to an online location containing infringing
material or infringing activity, by using information
location tools, including a directory, index, reference,
pointer, or hypertext link, if the service provider--
``(1)(A) does not have actual knowledge that the material
or activity is infringing;
``(B) in the absence of such actual knowledge, is not aware
of facts or circumstances from which infringing activity is
apparent; or
``(C) upon obtaining such knowledge or awareness, acts
expeditiously to remove, or disable access to, the material;
``(2) does not receive a financial benefit directly
attributable to the infringing activity, in a case in which
the service provider has the right and ability to control
such activity; and
``(3) upon notification of claimed infringement as
described in subsection (c)(4), responds expeditiously to
remove, or disable access to, the material that is claimed to
be infringing or to be the subject of infringing activity,
except that, for purposes of this paragraph, the information
described in subsection (c)(4)(A)(iii) shall be
identification of the reference or link, to material or
activity claimed to be infringing, that is to be removed or
access to which is to be disabled, and information reasonably
sufficient to permit the service provider to locate that
reference or link.
``(e) Misrepresentations.--Any person who knowingly
materially misrepresents under this section--
``(1) that material or activity is infringing, or
``(2) that material or activity was removed or disabled by
mistake or misidentification,
shall be liable for any damages, including costs and
attorneys' fees, incurred by the alleged infringer, by any
copyright owner or copyright owner's authorized licensee, or
by a service provider, who is injured by such
misrepresentation, as the result of the service provider
relying upon such misrepresentation in removing or disabling
access to the material or activity claimed to be infringing,
or in replacing the removed material or ceasing to disable
access to it.
[[Page H7081]]
``(f) Replacement of Removed or Disabled Material and
Limitation on Other Liability.--
``(1) No liability for taking down generally.--Subject to
paragraph (2), a service provider shall not be liable to any
person for any claim based on the service provider's good
faith disabling of access to, or removal of, material or
activity claimed to be infringing or based on facts or
circumstances from which infringing activity is apparent,
regardless of whether the material or activity is ultimately
determined to be infringing.
``(2) Exception.--Paragraph (1) shall not apply with
respect to material residing at the direction of a subscriber
of the service provider on a system or network controlled or
operated by or for the service provider that is removed, or
to which access is disabled by the service provider, pursuant
to a notice provided under subsection (c)(1)(C), unless the
service provider--
``(A) takes reasonable steps promptly to notify the
subscriber that it has removed or disabled access to the
material;
``(B) upon receipt of a counter notification described in
paragraph (3), promptly provides the person who provided the
notification under subsection (c)(1)(C) with a copy of the
counter notification, and informs that person that it will
replace the removed material or cease disabling access to it
in 10 business days; and
``(C) replaces the removed material and ceases disabling
access to it not less than 10, nor more than 14, business
days following receipt of the counter notice, unless its
designated agent first receives notice from the person who
submitted the notification under subsection (c)(1)(C) that
such person has filed an action seeking a court order to
restrain the subscriber from engaging in infringing activity
relating to the material on the service provider's system or
network.
``(3) Contents of counter notification.--To be effective
under this subsection, a counter notification must be a
written communication provided to the service provider's
designated agent that includes substantially the following:
``(A) A physical or electronic signature of the subscriber.
``(B) Identification of the material that has been removed
or to which access has been disabled and the location at
which the material appeared before it was removed or access
to it was disabled.
``(C) A statement under penalty of perjury that the
subscriber has a good faith belief that the material was
removed or disabled as a result of mistake or
misidentification of the material to be removed or disabled.
``(D) The subscriber's name, address, and telephone number,
and a statement that the subscriber consents to the
jurisdiction of Federal District Court for the judicial
district in which the address is located, or if the
subscriber's address is outside of the United States, for any
judicial district in which the service provider may be found,
and that the subscriber will accept service of process from
the person who provided notification under subsection
(c)(1)(C) or an agent of such person.
``(4) Limitation on other liability.--A service provider's
compliance with paragraph (2) shall not subject the service
provider to liability for copyright infringement with respect
to the material identified in the notice provided under
subsection (c)(1)(C).
``(g) Subpoena To Identify Infringer.--
``(1) Request.--A copyright owner or a person authorized to
act on the owner's behalf may request the clerk of any United
States district court to issue a subpoena to a service
provider for identification of an alleged infringer in
accordance with this subsection.
``(2) Contents of request.--The request may be made by
filing with the clerk--
``(A) a copy of a notification described in subsection
(c)(4)(A);
``(B) a proposed subpoena; and
``(C) a sworn declaration to the effect that the purpose
for which the subpoena is sought is to obtain the identity of
an alleged infringer and that such information will only be
used for the purpose of protecting rights under this title.
``(3) Contents of subpoena.--The subpoena shall authorize
and order the service provider receiving the notification and
the subpoena to expeditiously disclose to the copyright owner
or person authorized by the copyright owner information
sufficient to identify the alleged infringer of the material
described in the notification to the extent such information
is available to the service provider.
``(4) Basis for granting subpoena.--If the notification
filed satisfies the provisions of subsection (c)(4)(A), the
proposed subpoena is in proper form, and the accompanying
declaration is properly executed, the clerk shall
expeditiously issue and sign the proposed subpoena and return
it to the requester for delivery to the service provider.
``(5) Actions of service provider receiving subpoena.--Upon
receipt of the issued subpoena, either accompanying or
subsequent to the receipt of a notification described in
subsection (c)(4)(A), the service provider shall
expeditiously disclose to the copyright owner or person
authorized by the copyright owner the information required by
the subpoena, notwithstanding any other provision of law and
regardless of whether the service provider responds to the
notification.
``(6) Rules applicable to subpoena.--Unless otherwise
provided by this section or by applicable rules of the court,
the procedure for issuance and delivery of the subpoena, and
the remedies for noncompliance with the subpoena, shall be
governed to the greatest extent practicable by those
provisions of the Federal Rules of Civil Procedure governing
the issuance, service, and enforcement of a subpoena duces
tecum.
``(h) Conditions for Eligibility.--
``(1) Accommodation of technology.--The limitations on
liability established by this section shall apply to a
service provider only if the service provider--
``(A) has adopted and reasonably implemented, and informs
subscribers and account holders of the service provider's
system or network of, a policy that provides for the
termination in appropriate circumstances of subscribers and
account holders of the service provider's system or network
who are repeat infringers; and
``(B) accommodates and does not interfere with standard
technical measures.
``(2) Definition.--As used in this subsection, the term
`standard technical measures' means technical measures that
are used by copyright owners to identify or protect
copyrighted works and--
``(A) have been developed pursuant to a broad consensus of
copyright owners and service providers in an open, fair,
voluntary, multi-industry standards process;
``(B) are available to any person on reasonable and
nondiscriminatory terms; and
``(C) do not impose substantial costs on service providers
or substantial burdens on their systems or networks.
``(i) Injunctions.--The following rules shall apply in the
case of any application for an injunction under section 502
against a service provider that is not subject to monetary
remedies under this section:
``(1) Scope of relief.--(A) With respect to conduct other
than that which qualifies for the limitation on remedies set
forth in subsection (a), the court may grant injunctive
relief with respect to a service provider only in one or more
of the following forms:
``(i) An order restraining the service provider from
providing access to infringing material or activity residing
at a particular online site on the provider's system or
network.
``(ii) An order restraining the service provider from
providing access to a subscriber or account holder of the
service provider's system or network who is engaging in
infringing activity and is identified in the order, by
terminating the accounts of the subscriber or account holder
that are specified in the order.
``(iii) Such other injunctive relief as the court may
consider necessary to prevent or restrain infringement of
copyrighted material specified in the order of the court at a
particular online location, if such relief is the least
burdensome to the service provider among the forms of relief
comparably effective for that purpose.
``(B) If the service provider qualifies for the limitation
on remedies described in subsection (a), the court may only
grant injunctive relief in one or both of the following
forms:
``(i) An order restraining the service provider from
providing access to a subscriber or account holder of the
service provider's system or network who is using the
provider's service to engage in infringing activity and is
identified in the order, by terminating the accounts of the
subscriber or account holder that are specified in the order.
``(ii) An order restraining the service provider from
providing access, by taking reasonable steps specified in the
order to block access, to a specific, identified, online
location outside the United States.
``(2) Considerations.--The court, in considering the
relevant criteria for injunctive relief under applicable law,
shall consider--
``(A) whether such an injunction, either alone or in
combination with other such injunctions issued against the
same service provider under this subsection, would
significantly burden either the provider or the operation of
the provider's system or network;
``(B) the magnitude of the harm likely to be suffered by
the copyright owner in the digital network environment if
steps are not taken to prevent or restrain the infringement;
``(C) whether implementation of such an injunction would be
technically feasible and effective, and would not interfere
with access to noninfringing material at other online
locations; and
``(D) whether other less burdensome and comparably
effective means of preventing or restraining access to the
infringing material are available.
``(3) Notice and ex parte orders.--Injunctive relief under
this subsection shall be available only after notice to the
service provider and an opportunity for the service provider
to appear are provided, except for orders ensuring the
preservation of evidence or other orders having no material
adverse effect on the operation of the service provider's
communications network.
``(j) Definitions.--
``(1) Service provider.--(A) As used in subsection (a), the
term `service provider' means an entity offering the
transmission, routing, or providing of connections for
digital online communications, between or among points
specified by a user, of material of the user's choosing,
without modification to the content of the material as sent
or received.
``(B) As used in this section, other than subsection (a),
the term `service provider' means a provider of online
services or network access, or the operator of facilities
[[Page H7082]]
therefor, and includes an entity described in subparagraph
(A).
``(2) Monetary relief.--As used in this section, the term
`monetary relief' means damages, costs, attorneys' fees, and
any other form of monetary payment.
``(k) Other Defenses Not Affected.--The failure of a
service provider's conduct to qualify for limitation of
liability under this section shall not bear adversely upon
the consideration of a defense by the service provider that
the service provider's conduct is not infringing under this
title or any other defense.
``(l) Protection of Privacy.--Nothing in this section shall
be construed to condition the applicability of subsections
(a) through (d) on--
``(1) a service provider monitoring its service or
affirmatively seeking facts indicating infringing activity,
except to the extent consistent with a standard technical
measure complying with the provisions of subsection (h); or
``(2) a service provider gaining access to, removing, or
disabling access to material in cases in which such conduct
is prohibited by law.
``(m) Construction.--Subsections (a), (b), (c), and (d)
describe separate and distinct functions for purposes of
applying this section. Whether a service provider qualifies
for the limitation on liability in any one of those
subsections shall be based solely on the criteria in that
subsection, and shall not affect a determination of whether
that service provider qualifies for the limitations on
liability under any other such subsection.''.
(b) Conforming Amendment.--The table of sections for
chapter 5 of title 17, United States Code, is amended by
adding at the end the following:
``512. Limitations on liability relating to material online.''.
(c) Effective Date.--The amendments made by this section
take effect on the date of the enactment of this Act.
SEC. 203. EFFECTIVE DATE.
This title and the amendments made by this title shall take
effect on the date of the enactment of this Act.
TITLE III--COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
SEC. 301. SHORT TITLE.
This title may be cited as the ``Computer Maintenance
Competition Assurance Act''.
SEC. 302. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER PROGRAMS.
Section 117 of title 17, United States Code, is amended--
(1) by striking ``Notwithstanding'' and inserting the
following:
``(a) Making of Additional Copy or Adaptation by Owner of
Copy.--Notwithstanding'';
(2) by striking ``Any exact'' and inserting the following:
``(b) Lease, Sale, or Other Transfer of Additional Copy or
Adaptation.--Any exact''; and
(3) by adding at the end the following:
``(c) Machine Maintenance or Repair.--Notwithstanding the
provisions of section 106, it is not an infringement for the
owner or lessee of a machine to make or authorize the making
of a copy of a computer program if such copy is made solely
by virtue of the activation of a machine that lawfully
contains an authorized copy of the computer program, for
purposes only of maintenance or repair of that machine, if--
``(1) such new copy is used in no other manner and is
destroyed immediately after the maintenance or repair is
completed; and
``(2) with respect to any computer program or part thereof
that is not necessary for that machine to be activated, such
program or part thereof is not accessed or used other than to
make such new copy by virtue of the activation of the
machine.
``(d) Definitions.--For purposes of this section--
``(1) the `maintenance' of a machine is the servicing of
the machine in order to make it work in accordance with its
original specifications and any changes to those
specifications authorized for that machine; and
``(2) the `repair' of a machine is the restoring of the
machine to the state of working in accordance with its
original specifications and any changes to those
specifications authorized for that machine.''.
TITLE IV--MISCELLANEOUS PROVISIONS
Subtitle A--Establishment of the Under Secretary of Commerce for
Intellectual Property Policy
SEC. 401. UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL
PROPERTY POLICY.
(a) Appointment.--There shall be within the Department of
Commerce an Under Secretary of Commerce for Intellectual
Property Policy, who shall be appointed by the President, by
and with the advice and consent of the Senate, at level II of
the Executive Schedule. On or after the effective date of
this subtitle, the President may designate an individual to
serve as the Acting Under Secretary until the date on which
an Under Secretary qualifies under this subsection.
(b) Duties.--The Under Secretary of Commerce for
Intellectual Property Policy, under the direction of the
Secretary of Commerce, shall perform the following functions
with respect to intellectual property policy:
(1) In coordination with the Under Secretary of Commerce
for International Trade, promote exports of goods and
services of the United States industries that rely on
intellectual property.
(2) Advise the President, through the Secretary of
Commerce, on national and certain international issues
relating to intellectual property policy, including issues in
the areas of patents, trademarks, and copyrights.
(3) Advise Federal departments and agencies on matters of
intellectual property protection in other countries.
(4) Provide guidance, as appropriate, with respect to
proposals by agencies to assist foreign governments and
international intergovernmental organizations on matters of
intellectual property protection.
(5) Conduct programs and studies related to the
effectiveness of intellectual property protection throughout
the world.
(6) Advise the Secretary of Commerce on programs and
studies relating to intellectual property policy that are
conducted, or authorized to be conducted, cooperatively with
foreign patent and trademark offices and international
intergovernmental organizations.
(7) In coordination with the Department of State, conduct
programs and studies cooperatively with foreign intellectual
property offices and international intergovernmental
organizations.
(c) Deputy Under Secretaries.--To assist the Under
Secretary of Commerce for Intellectual Property Policy, the
Under Secretary shall appoint a Deputy Under Secretary for
Patent Policy and a Deputy Under Secretary for Trademark
Policy, as members of the Senior Executive Service in
accordance with the provisions of title 5, United States
Code. The Deputy Under Secretaries shall perform such duties
and functions as the Under Secretary shall prescribe.
(d) Compensation.--Section 5313 of title 5, United States
Code, is amended by adding at the end the following: ``Under
Secretary of Commerce for Intellectual Property Policy.''
(e) Funding.--Funds available to the Patent and Trademark
Office shall be made available for all expenses of the Office
of the Under Secretary of Commerce for Intellectual Property
Policy, subject to prior approval in appropriations Acts.
Amounts made available under this subsection shall not exceed
2 percent of the projected annual revenues of the Patent and
Trademark Office from fees for services and goods of that
Office. The Secretary of Commerce shall determine the budget
requirements of the Office of the Under Secretary for
Intellectual Property Policy.
(f) Consultation.--In connection with the performance of
his or her duties under this section, the Under Secretary
shall, on appropriate matters, consult with the Register of
Copyrights.
SEC. 402. RELATIONSHIP WITH EXISTING AUTHORITIES.
(a) No Derogation.--Nothing in section 401 shall derogate
from the duties of the United States Trade Representative or
from the duties of the Secretary of State. In addition,
nothing in this subtitle shall derogate from the duties and
functions of the Register of Copyrights or otherwise alter
current authorities relating to copyright matters.
(b) Clarification of Authority of the Copyright Office.--
Section 701 of title 17, United States Code, is amended--
(1) by redesignating subsections (b) through (e) as
subsections (c) through (f), respectively; and
(2) by inserting after subsection (a) the following:
``(b) In addition to the functions and duties set out
elsewhere in this chapter, the Register of Copyrights shall
perform the following functions:
``(1) Advise Congress on national and international issues
relating to copyright, other matters arising under chapters
9, 12, 13, and 14 of this title, and related matters.
``(2) Provide information and assistance to Federal
departments and agencies and the Judiciary on national and
international issues relating to copyright, other matters
arising under chapters 9, 12, 13, and 14 of this title, and
related matters.
``(3) Participate in meetings of international
intergovernmental organizations and meetings with foreign
government officials relating to copyright, other matters
arising under chapters 9, 12, 13, and 14 of this title, and
related matters, including as a member of United States
delegations as authorized by the appropriate Executive Branch
authority.
``(4) Conduct studies and programs regarding copyright,
other matters arising under chapters 9, 12, 13, and 14 of
this title, and related matters, the administration of the
Copyright Office, or any function vested in the Copyright
Office by law, including educational programs conducted
cooperatively with foreign intellectual property offices and
international intergovernmental organizations.
``(5) Perform such other functions as Congress may direct,
or as may be appropriate in furtherance of the functions and
duties specifically set forth in this title.''
Subtitle B--Related Provisions
SEC. 411. EPHEMERAL RECORDINGS.
Section 112(a) of title 17, United States Code, is
amended--
(1) by redesignating paragraphs (1), (2), and (3) as
subparagraphs (A), (B), and (C), respectively;
(2) by inserting ``(1)'' after ``(a)''; and
(3) by inserting after ``114(a),'' the following: ``or for
a transmitting organization that is a broadcast radio or
television station licensed as such by the Federal
Communications Commission that broadcasts a performance of a
sound recording in a digital format on a nonsubscription
basis,''; and
[[Page H7083]]
(4) by adding at the end the following:
``(2) In a case in which a transmitting organization
entitled to make a copy or phonorecord under paragraph (1) in
connection with the transmission to the public of a
performance or display of a work is prevented from making
such copy or phonorecord by reason of the application by the
copyright owner of technical measures that prevent the
reproduction of the work, the copyright owner shall make
available to the transmitting organization the necessary
means for permitting the making of such copy or phonorecord
as permitted under that paragraph, if it is technologically
feasible and economically reasonable for the copyright owner
to do so. If the copyright owner fails to do so in a timely
manner in light of the transmitting organization's reasonable
business requirements, the transmitting organization shall
not be liable for a violation of section 1201(a)(1) of this
title for engaging in such activities as are necessary to
make such copies or phonorecords as permitted under paragraph
(1) of this subsection.''.
SEC. 412. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE
EDUCATION.
(a) Recommendations by Register of Copyrights.--Not later
than 6 months after the date of the enactment of this Act,
the Register of Copyrights, after consultation with
representatives of copyright owners, nonprofit educational
institutions, and nonprofit libraries and archives, shall
submit to the Congress recommendations on how to promote
distance education through digital technologies, including
interactive digital networks, while maintaining an
appropriate balance between the rights of copyright owners
and the needs of users of copyrighted works. Such
recommendations shall include any legislation the Register of
Copyrights considers appropriate to achieve the objective
described in the preceding sentence.
(b) Factors.--In formulating recommendations under
subsection (a), the Register of Copyrights shall consider--
(1) the need for an exemption from exclusive rights of
copyright owners for distance education through digital
networks;
(2) the categories of works to be included under any
distance education exemption;
(3) the extent of appropriate quantitative limitations on
the portions of works that may be used under any distance
education exemption;
(4) the parties who should be entitled to the benefits of
any distance education exemption;
(5) the parties who should be designated as eligible
recipients of distance education materials under any distance
education exemption;
(6) whether and what types of technological measures can or
should be employed to safeguard against unauthorized access
to, and use or retention of, copyrighted materials as a
condition of eligibility for any distance education
exemption, including, in light of developing technological
capabilities, the exemption set out in section 110(2) of
title 17, United States Code;
(7) the extent to which the availability of licenses for
the use of copyrighted works in distance education through
interactive digital networks should be considered in
assessing eligibility for any distance education exemption;
and
(8) such other issues relating to distance education
through interactive digital networks that the Register
considers appropriate.
SEC. 413. EXEMPTION FOR LIBRARIES AND ARCHIVES.
Section 108 of title 17, United States Code, is amended--
(1) in subsection (a)--
(A) by striking ``Notwithstanding'' and inserting ``Except
as otherwise provided in this title and notwithstanding'';
(B) by inserting after ``no more than one copy or
phonorecord of a work'' the following: ``, except as provided
in subsections (b) and (c)''; and
(C) in paragraph (3) by inserting after ``copyright'' the
following: ``that appears on the copy or phonorecord that is
reproduced under the provisions of this section, or includes
a legend stating that the work may be protected by copyright
if no such notice can be found on the copy or phonorecord
that is reproduced under the provisions of this section'';
(2) in subsection (b)--
(A) by striking ``a copy or phonorecord'' and inserting
``three copies or phonorecords'';
(B) by striking ``in facsimile form''; and
(C) by striking ``if the copy or phonorecord reproduced is
currently in the collections of the library or archives.''
and inserting ``if--
``(1) the copy or phonorecord reproduced is currently in
the collections of the library or archives; and
``(2) any such copy or phonorecord that is reproduced in
digital format is not otherwise distributed in that format
and is not made available to the public in that format
outside the premises of the library or archives.''; and
(3) in subsection (c)--
(A) by striking ``a copy or phonorecord'' and inserting
``three copies or phonorecords'';
(B) by striking ``in facsimile form'';
(C) by inserting ``or if the existing format in which the
work is stored has become obsolete,'' after ``stolen,''; and
(D) by striking ``if the library or archives has, after a
reasonable effort, determined that an unused replacement
cannot be obtained at a fair price.'' and inserting ``if--
``(1) the library or archives has, after a reasonable
effort, determined that an unused replacement cannot be
obtained at a fair price; and
``(2) any such copy or phonorecord that is reproduced in
digital format is not made available to the public in that
format outside the premises of the library or archives in
lawful possession of such copy.''; and
(E) by adding at the end the following:
``For purposes of this subsection, a format shall be
considered obsolete if the machine or device necessary to
render perceptible a work stored in that format is no longer
manufactured or is no longer reasonably available in the
commercial marketplace.''.
SEC. 414. FAIR USE.
Section 107 of title 17, United States Code, is amended in
the first sentence by striking ``, including such use'' and
all that follows through ``section,''.
SEC. 415. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS;
EPHEMERAL RECORDINGS.
(a) Scope of Exclusive Rights in Sound Recordings.--Section
114 of title 17, United States Code, is amended as follows:
(1) Subsection (d) is amended--
(A) by striking subparagraph (A) and inserting the
following:
``(A) a nonsubscription broadcast transmission;''; and
(B) by amending paragraph (2) to read as follows:
``(2) Statutory Licensing of Certain Transmissions.--The
performance of a sound recording publicly by means of a
subscription digital audio transmission not exempt under
paragraph (1) or an eligible nonsubscription digital audio
transmission shall be subject to statutory licensing, in
accordance with subsection (f) if--
``(A) in the case of a subscription transmission not exempt
under paragraph (1) or an eligible nonsubscription
transmission--
``(i) the transmission is not part of an interactive
service;
``(ii) except in the case of a transmission to a business
establishment, the transmitting entity does not automatically
and intentionally cause any device receiving the transmission
to switch from one program channel to another; and
``(iii) except as provided in section 1002(e), the
transmission of the sound recording is accompanied by the
information encoded in that sound recording, if any, by or
under the authority of the copyright owner of that sound
recording, that identifies the title of the sound recording,
the featured recording artist who performs on the sound
recording, and related information, including information
concerning the underlying musical work and its writer;
``(B) in the case of a subscription transmission not exempt
under paragraph (1) by a preexisting subscription service in
the same transmission medium used by such service on July 31,
1998--
``(i) the transmission does not exceed the sound recording
performance complement;
``(ii) the transmitting entity does not cause to be
published by means of an advance program schedule or prior
announcement the titles of the specific sound recordings or
phonorecords embodying such sound recordings to be
transmitted; and
``(C) in the case of an eligible nonsubscription
transmission or a subscription transmission not exempt under
paragraph (1) by a new subscription service or by a
preexisting subscription service other than in the same
transmission medium used by such service on July 31, 1998--
``(i) the transmission does not exceed the sound recording
performance complement, except that this requirement shall
not apply in the case of a retransmission of a broadcast
transmission if the retransmission is made by a transmitting
entity that does not have the right or ability to control the
programming of the broadcast station making the broadcast
transmission, unless the broadcast station makes broadcast
transmissions--
``(I) in digital format that regularly exceed the sound
recording performance complement; or
``(II) in analog format, a substantial portion of which, on
a weekly basis, exceed the sound recording performance
complement;
Provided, however, That the sound recording copyright owner
or its representative has notified the transmitting entity in
writing that broadcast transmissions of the copyright owner's
sound recordings exceed the sound recording complement as
provided in this clause;
``(ii) the transmitting entity does not cause to be
published, or induce or facilitate the publication, by means
of an advance program schedule or prior announcement, the
titles of the specific sound recordings to be transmitted,
the phonorecords embodying such sound recordings, or, other
than for illustrative purposes, the names of the featured
recording artists, except that this clause does not
disqualify a transmitting entity that makes a prior
announcement that a particular artist will be featured within
an unspecified future time period and, in any 1-hour period,
no more than 3 such announcements are made with respect to no
more than 2 artists in each announcement;
``(iii) the transmission is not part of--
``(I) an archived program of less than 5 hours duration;
``(II) an archived program of greater than 5 hours duration
that is made available for a period exceeding 2 weeks;
[[Page H7084]]
``(III) a continuous program which is of less than 3 hours
duration; or
``(IV) a program, other than an archived or continuous
program, that is transmitted at a scheduled time more than 3
additional times in a 2-week period following the first
transmission of the program and for an additional 2-week
period more than 1 month following the end of the first such
2-week period;
``(iv) the transmitting entity does not knowingly perform
the sound recording in a manner that is likely to cause
confusion, to cause mistake, or to deceive, as to the
affiliation, connection, or association of the copyright
owner or featured recording artist with the transmitting
entity or a particular product or service advertised by the
transmitting entity, or as to the origin, sponsorship, or
approval by the copyright owner or featured recording artist
of the activities of the transmitting entity other than the
performance of the sound recording itself;
``(v) the transmitting entity cooperates to prevent, to the
extent feasible without imposing substantial costs or
burdens, a transmission recipient or any other person or
entity from automatically scanning the transmitting entity's
transmissions together with transmissions by other
transmitting entities to select a particular sound recording
to be transmitted to the transmission recipient;
``(vi) the transmitting entity takes reasonable steps to
ensure, to the extent within its control, that the
transmission recipient cannot make a phonorecord in a digital
format of the transmission, and the transmitting entity takes
no affirmative steps to cause or induce the making of a
phonorecord by the transmission recipient;
``(vii) phonorecords of the sound recording have been
distributed to the public in the United States under the
authority of the copyright owner or the copyright owner
authorizes the transmitting entity to transmit the sound
recording, and the transmitting entity makes the transmission
from a phonorecord lawfully made under this title;
``(viii) the transmitting entity accommodates and does not
interfere with the transmission of technical measures that
are widely used by sound recording copyright owners to
identify or protect copyrighted works, and that are
technically feasible of being transmitted by the transmitting
entity without imposing substantial costs on the transmitting
entity or resulting in perceptible aural or visual
degradation of the digital signal; and
``(ix) in the case of an eligible nonsubscription
transmission, the transmitting entity identifies the sound
recording during, but not before, the time it is performed,
including the title of the sound recording, the title of the
phonorecord embodying such sound recording, if any, and the
featured recording artist in a manner to permit it to be
perceived by the transmission recipient, except that the
obligation in this clause shall not take effect until 1 year
after the date of the enactment of the Digital Millennium
Copyright Act.''.
(2) Subsection (f) is amended to read as follows:
(A) in paragraph (1)--
(i) in the first sentence--
(I) by striking ``(1) No'' and inserting ``(1)(A) No'';
(II) by striking ``the activities'' and inserting
``subscription transmissions by preexisting subscription
services''; and
(III) by striking ``2000'' and inserting ``2001''; and
(ii) by amending the third sentence to read as follows:
``Any copyright owners of sound recordings or any preexisting
subscription services may submit to the Librarian of Congress
licenses covering such subscriptions transmissions with
respect to such sound recordings.''; and
(B) by striking paragraphs (2), (3), (4), and (5) and
inserting the following:
``(B) In the absence of license agreements negotiated under
subparagraph (A), during the 60-day period commencing 6
months after publication of the notice specified in
subparagraph (A), and upon the filing of a petition in
accordance with section 803(a)(1), the Librarian of Congress
shall, pursuant to chapter 8, convene a copyright arbitration
royalty panel to determine and publish in the Federal
Register a schedule of rates and terms which, subject to
paragraph (3), shall be binding on all copyright owners of
sound recordings and preexisting subscription services. In
establishing rates and terms for preexisting subscription
services, in addition to the objectives set forth in section
801(b)(1), the copyright arbitration royalty panel may
consider the rates and terms for comparable types of
subscription digital audio transmission services and
comparable circumstances under voluntary license agreements
negotiated as provided in subparagraph (A).
``(C)(i) Publication of a notice of the initiation of
voluntary negotiation proceedings as specified in
subparagraph (A) shall be repeated, in accordance with
regulations that the Librarian of Congress shall prescribe--
``(I) no later than 30 days after a petition is filed by
any copyright owners of sound recordings or any preexisting
subscription services indicating that a new type of
subscription digital audio transmission service on which
sound recordings are performed is or is about to become
operational; and
``(II) in the first week of January, 2001, and at 5-year
intervals thereafter.
``(ii) The procedures specified in subparagraph (B) shall
be repeated, in accordance with regulations that the
Librarian of Congress shall prescribe, upon filing of a
petition in accordance with section 803(a)(1) during a 60-day
period commencing--
``(I) 6 months after publication of a notice of the
initiation of voluntary negotiation proceedings under
subparagraph (A) pursuant to a petition under clause (i)(I)
of this subparagraph; or
``(II) on July 1, 2001, and at 5-year intervals thereafter.
``(iii) The procedures specified in subparagraph (B) shall
be concluded in accordance with section 802.
``(2)(A) No later than 30 days after the date of the
enactment of the Digital Millennium Copyright Act, the
Librarian of Congress shall cause notice to be published in
the Federal Register of the initiation of voluntary
negotiation proceedings for the purpose of determining
reasonable terms and rates of royalty payments for eligible
nonsubscription transmissions and transmissions by new
subscription services specified by subsection (d)(2) during
the period beginning on the date of the enactment of such Act
and ending on December 31, 2000, or such other date as the
parties may agree. Such rates and terms shall distinguish
among the different types of eligible nonsubscription
transmission services then in operation and shall include a
minimum fee for each such type of service. Any copyright
owners of sound recordings or any entities performing sound
recordings affected by this section may submit to the
Librarian of Congress licenses covering such eligible
nonsubscription transmissions with respect to such sound
recordings. The parties to each negotiation proceeding shall
bear their own costs.
``(B) In the absence of license agreements negotiated under
subparagraph (A), during the 60-day period commencing 6
months after publication of the notice specified in
subparagraph (A), and upon the filing of a petition in
accordance with section 803(a)(1), the Librarian of Congress
shall, pursuant to chapter 8, convene a copyright arbitration
royalty panel to determine and publish in the Federal
Register a schedule of rates and terms which, subject to
paragraph (3), shall be binding on all copyright owners of
sound recordings and entities performing sound recordings
during the period beginning on the date of the enactment of
the Digital Millennium Copyright Act and ending on December
31, 2000, or such other date as the parties may agree. Such
rates and terms shall distinguish among the different types
of eligible nonsubscription, transmission services then in
operation and shall include a minimum fee for each such type
of service, such differences to be based on criteria,
including, but not limited to, the quantity and nature of the
use of sound recordings and the degree to which use of the
service may substitute for or may promote the purchase of
phonorecords by consumers. In establishing rates and terms
for transmissions by eligible nonsubscription services and
new subscription services, the copyright arbitration royalty
panel shall establish rates and terms that most clearly
represent the rates and terms that would have been negotiated
in the marketplace between a willing buyer and a willing
seller. In determining such rates and terms, the copyright
arbitration royalty panel shall base its decision on
economic, competitive and programming information presented
by the parties, including--
``(i) whether use of the service may substitute for or may
promote the sales of phonorecords or otherwise may interfere
with or may enhance the sound recording copyright owner's
other streams of revenue from its sound recordings; and
``(ii) the relative roles of the copyright owner and the
copyright user in the copyrighted work and the service made
available to the public with respect to relative creative
contribution, technological contribution, capital investment,
cost, and risk.
``(C)(i) Publication of a notice of the initiation of
voluntary negotiation proceedings as specified in
subparagraph (A) shall be repeated in accordance with
regulations that the Librarian of Congress shall prescribe--
``(I) no later than 30 days after a petition if filed by
any copyright owners of sound recordings or any eligible
nonsubscription service or new subscription service
indicating that a new type of eligible nonsubscription
service or new subscription service on which sound recordings
are performed is or is about to become operational; and
``(II) in the first week of January 2000, and at 2-year
intervals thereafter, except to the extent that different
years for the repeating of such proceedings may be determined
in accordance with subparagraph (A).
``(ii) The procedures specified in subparagraph (B) shall
be repeated, in accordance with regulations that the
Librarian of Congress shall prescribe, upon filing of a
petition in accordance with section 803(a)(1) during a 60-day
period commencing--
``(I) 6 months after publication of a notice of the
initiation of voluntary negotiation proceedings under
subparagraph (A) pursuant to a petition under clause (i)(I);
or
``(II) on July 1, 2000, and at 2-year intervals thereafter,
except to the extent that different years for the repeating
of such proceedings may be determined in accordance with
subparagraph (A).
``(iii) The procedures specified in subparagraph (B) shall
be concluded in accordance with section 802.
``(3) License agreements voluntarily negotiated at any time
between 1 or more copyright owners of sound recordings and 1
or more entities performing sound recordings
[[Page H7085]]
shall be given effect in lieu of any determination by a
copyright arbitration royalty panel or decision by the
Librarian of Congress.
``(4)(A) The Librarian of Congress shall also establish
requirements by which copyright owners may receive reasonable
notice of the use of their sound recordings under this
section, and under which records of such use shall be kept
and made available by entities performing sound recordings.
``(B) Any person who wishes to perform a sound recording
publicly by means of a transmission eligible for statutory
licensing under this subsection may do so without infringing
the exclusive right of the copyright owner of the sound
recording--
``(i) by complying with such notice requirements as the
Librarian of Congress shall prescribe by regulation and by
paying royalty fees in accordance with this subsection; or
``(ii) if such royalty fees have not been set, by agreeing
to pay such royalty fees as shall be determined in accordance
with this subsection.
``(C) Any royalty payments in arrears shall be made on or
before the twentieth day of the month next succeeding the
month in which the royalty fees are set.''.
(3) Subsection (g) is amended--
(A) in the subsection heading by striking ``Subscription'';
(B) in paragraph (1) in the matter preceding subparagraph
(A), by striking ``subscription transmission licensed'' and
inserting ``transmission licensed under a statutory
license'';
(C) in subparagraphs (A) and (B) by striking
``subscription''; and
(D) in paragraph (2) by striking ``subscription''.
(4) Subsection (j) is amended--
(A) by redesignating paragraphs (2), (3), (5), (6), (7),
and (8) as paragraphs (3), (5), (9), (11), (12), and (13),
respectively;
(B) by inserting after paragraph (1) the following:
``(2) An `archived program' is a prerecorded program that
is available repeatedly on demand and that is performed in
the same predetermined order from the beginning.'';
(C) by inserting after paragraph (3), as so redesignated,
the following:
``(4) A `continuous program' is a prerecorded program that
is continuously performed in the same predetermined order and
the point in the program at which it is accessed is beyond
the control of the transmission recipient.'';
(D) by inserting after paragraph (5), as so redesignated,
the following:
``(6) An `eligible nonsubscription transmission' is a
noninteractive, nonsubscription transmission made as part of
a service that provides audio programming consisting, in
whole or in part, of performances of sound recordings,
including retransmissions of broadcast transmissions, if the
primary purpose of the service is to provide to the public
such audio or other entertainment programming, and the
primary purpose of the service is not to sell, advertise, or
promote particular products or services other than sound
recordings, live concerts, or other music-related events.
``(7) An `interactive service' is one that enables a member
of the public to receive a transmission of a program
specially created for the recipient, or on request, a
transmission of a particular sound recording, whether or not
as part of a program, which is selected by or on behalf of
the recipient. The ability of individuals to request that
particular sound recordings be performed for reception by the
public at large does not make a service interactive, if the
programming on each channel of the service does not
substantially consist of sound recordings that are performed
within 1 hour of the request or at a time designated by
either the transmitting entity or the individual making such
request. If an entity offers both interactive and
noninteractive services (either concurrently or at different
times), the noninteractive component shall not be treated as
part of an interactive service.
``(8) A `new subscription service' is a service that
performs sound recordings by means of subscription digital
audio transmissions and that is not a preexisting
subscription service.'';
(E) by inserting after paragraph (9), as so redesignated,
the following:
``(10) A `preexisting subscription service' is a service
that performs sound recordings by means of noninteractive
audio-only subscription digital audio transmissions, which
was in existence and was making such transmission to the
public for a fee on or before July 31, 1998.''; and
(F) by adding at the end the following:
``(14) A `transmission' is either an initial transmission
or a retransmission.''.
(b) Ephemeral Recordings.--Section 112 of title 17, United
States Code, is amended by adding at the end the following:
``(f) Statutory License.--(1) An ephemeral recording of a
sound recording by a transmitting organization entitled to
transmit to the public a performance of that sound recording
by means of a digital audio transmission under a statutory
license in accordance with section 114(f) or an exemption
provided in section 114(d)(1)(B) or (C) is subject to
statutory licensing under the conditions specified by this
subsection.
``(2) A statutory license under this subsection grants a
transmitting organization entitled to transmit to the public
a performance of a sound recording by means of a digital
audio transmission under a statutory license in accordance
with section 114(f) or an exemption provided in section
114(d)(1)(B) or (C) the privilege of making no more than 1
phonorecord of the sound recording (unless the terms and
conditions of the statutory license allow for more), if--
``(A) the phonorecord is retained and used solely by the
transmitting organization that made it, and no further
phonorecords are reproduced from it; and
``(B) the phonorecord is used solely for the transmitting
organization's own transmissions in the United States under a
statutory license in accordance with section 114(f) or an
exemption provided in section 114(d)(1)(B) or (C);
``(C) unless preserved exclusively for purposes of archival
preservation, the phonorecord is destroyed within 6 months
from the date the sound recording was first transmitted to
the public using the phonorecord; and
``(D) phonorecords of the sound recording have been
distributed to the public in the United States under the
authority of the copyright owner or the copyright owner
authorizes the transmitting entity to transmit the sound
recording, and the transmitting entity makes the transmission
from a phonorecord lawfully made and acquired under this
title.
``(3) Notwithstanding any provision of the antitrust laws,
any copyright owners of sound recordings and any transmitting
organizations entitled to obtain a statutory license under
this subsection may negotiate and agree upon royalty rates
and license terms and conditions for ephemeral recordings of
such sound recordings and the proportionate division of fees
paid among copyright owners, and may designate common agents
to negotiate, agree to, pay, or receive such royalty
payments.
``(4) No later than 30 days after the date of the enactment
of the Digital Millennium Copyright Act, the Librarian of
Congress shall cause notice to be published in the Federal
Register of the initiation of voluntary negotiation
proceedings for the purpose of determining reasonable terms
and rates of royalty payments for the activities specified by
paragraph (2) of this subsection during the period beginning
on the date of the enactment of such Act and ending on
December 31, 2000, or such other date as the parties may
agree. Such rates shall include a minimum fee for each type
of service. Any copyright owners of sound recordings or any
transmitting organizations entitled to obtain a statutory
license under this subsection may submit to the Librarian of
Congress licenses covering such activities with respect to
such sound recordings. The parties to each negotiation
proceeding shall bear their own costs.
``(5) In the absence of license agreements negotiated under
paragraph (3), during the 60-day period commencing 6 months
after publication of the notice specified in paragraph (4),
and upon the filing of a petition in accordance with section
803(a)(1), the Librarian of Congress shall, pursuant to
chapter 8, convene a copyright arbitration royalty panel to
determine and publish in the Federal Register a schedule of
reasonable rates and terms which, subject to paragraph (6),
shall be binding on all copyright owners of sound recordings
and transmitting organizations entitled to obtain a statutory
license under this subsection during the period beginning on
the date of the enactment of the Digital Millennium Copyright
Act and ending on December 31, 2000, or such other date as
the parties may agree. Such rates shall include a minimum fee
for each type of service. The copyright arbitration royalty
panel shall establish rates that most clearly represent the
fees that would have been negotiated in the marketplace
between a willing buyer and a willing seller. In determining
such rates and terms, the copyright arbitration royalty panel
shall base its decision on economic, competitive, and
programming information presented by the parties, including--
``(A) whether use of the service may substitute for or may
promote the sales of phonorecords or otherwise interferes
with or enhances the copyright owner's traditional streams of
revenue;
``(B) the relative rules of the copyright owner and the
copyright user in the copyrighted work and the service made
available to the public with respect to relative creative
contribution, technological contribution, capital investment,
cost, and risk.
In establishing such rates and terms, the copyright
arbitration royalty panel may consider the rates and terms
under voluntary license agreements negotiated as provided in
paragraphs (3) and (4). The Librarian of Congress shall also
establish requirements by which copyright owners may receive
reasonable notice of the use of their sound recordings under
this section, and under which records of such use shall be
kept and made available by transmitting organizations
entitled to obtain a statutory license under this subsection.
``(6) License agreements voluntarily negotiated at any time
between 1 or more copyright owners of sound recordings and 1
or more transmitting organizations entitled to obtain a
statutory license under this subsection shall be given effect
in lieu of any determination by a copyright arbitration
royalty panel or decision by the Librarian of Congress.
``(7) Publication of a notice of the initiation of
voluntary negotiation proceedings as specified in paragraph
(4) shall be repeated, in accordance with regulations that
the Librarian of Congress shall prescribe, in
[[Page H7086]]
the first week of January 2000, and at 2-year intervals
thereafter, except to the extent that different years for the
repeating of such proceedings may be determined in accordance
with paragraph (4). The procedures specified in paragraph (5)
shall be repeated, in accordance with regulations that the
Librarian of Congress shall prescribe, upon filing of a
petition in accordance with section 803(a)(1) during a 60-day
period commencing on July 1, 2000, and at 2-year intervals
thereafter, except to the extent that different years for the
repeating of such proceedings may be determined in accordance
with paragraph (4). The procedures specified in paragraph (5)
shall be concluded in accordance with section 802.
``(8)(A) Any person who wishes to make an ephemeral
recording of a sound recording under a statutory license in
accordance with this subsection may do so without infringing
the exclusive right of the copyright owner of the sound
recording under section 106(1)--
``(i) by complying with such notice requirements as the
Librarian of Congress shall prescribe by regulation and by
paying royalty fees in accordance with this subsection; or
``(ii) if such royalty fees have not been set, by agreeing
to pay such royalty fees as shall be determined in accordance
with this subsection.
``(B) Any royalty payments in arrears shall be made on or
before the 20th day of the month next succeeding the month in
which the royalty fees are set.
``(9) If a transmitting organization entitled to make a
phonorecord under this subsection is prevented from making
such phonorecord by reason of the application by the
copyright owner of technical measures that prevent the
reproduction of the sound recording, the copyright owner
shall make available to the transmitting organization the
necessary means for permitting the making of such phonorecord
within the meaning of this subsection, if it is
technologically feasible and economically reasonable for the
copyright owner to do so. If the copyright owner fails to do
so in a timely manner in light of the transmitting
organization's reasonable business requirements, the
transmitting organization shall not be liable for a violation
of section 1201(a)(1) of this title for engaging in such
activities as are necessary to make such phonorecords as
permitted under this subsection.''.
SEC. 416. ASSUMPTION OF CONTRACTUAL OBLIGATIONS RELATED TO
TRANSFERS OF RIGHTS IN MOTION PICTURES.
(a) In General.--Part VI of title 28, United States Code,
is amended by adding at the end the following new chapter:
``CHAPTER 180--ASSUMPTION OF CERTAIN CONTRACTUAL OBLIGATIONS
``Sec.
``4001. Assumption of contractual obligations related to transfers of
rights in motion pictures.
``Sec. 4001. Assumption of contractual obligations related to
transfers of rights in motion pictures
``(a) Assumption of Obligations.--In the case of a transfer
of copyright ownership in a motion picture (as defined in
section 101 of title 17) that is produced subject to 1 or
more collective bargaining agreements negotiated under the
laws of the United States, if the transfer is executed on or
after the effective date of this chapter and is not limited
to public performance rights, the transfer instrument shall
be deemed to incorporate the assumption agreements applicable
to the copyright ownership being transferred that are
required by the applicable collective bargaining agreement,
and the transferee shall be subject to the obligations under
each such assumption agreement to make residual payments and
provide related notices, accruing after the effective date of
the transfer and applicable to the exploitation of the rights
transferred, and any remedies under each such assumption
agreement for breach of those obligations, as those
obligations and remedies are set forth in the applicable
collective bargaining agreement, if--
``(1) the transferee knows or has reason to know at the
time of the transfer that such collective bargaining
agreement was or will be applicable to the motion picture; or
``(2) in the event of a court order confirming an
arbitration award against the transferor under the collective
bargaining agreement, the transferor does not have the
financial ability to satisfy the award within 90 days after
the order is issued.
``(b) Failure To Notify.--If the transferor under
subsection (a) fails to notify the transferee under
subsection (a) of applicable collective bargaining
obligations before the execution of the transfer instrument,
and subsection (a) is made applicable to the transferee
solely by virtue of subsection (a)(2), the transferor shall
be liable to the transferee for any damages suffered by the
transferee as a result of the failure to notify.
``(c) Determination of Disputes and Claims.--Any dispute
concerning the application of subsection (a) and any claim
made under subsection (b) shall be determined by an action in
United States district court, and the court in its discretion
may allow the recovery of full costs by or against any party
and may also award a reasonable attorney's fee to the
prevailing party as part of the costs.''.
(b) Conforming Amendment.--The table of chapters for part
VI of title 28, United States Code, is amended by adding at
the end the following:
``180. Assumption of Certain Contractual Obligations........4001''.....
SEC. 417. FIRST SALE CLARIFICATION.
Section 109(a) of title 17, United States Code, is amended
by striking the first sentence and inserting the following:
``Notwithstanding the provisions of section 106(3), the owner
of a particular lawfully made copy or phonorecord that has
been distributed in the United States by the authority of the
copyright owner, or any person authorized by the owner of
that copy or phonorecord, is entitled, without the authority
of the copyright owner, to sell or otherwise dispose of the
possession of that copy or phonorecord.''.
TITLE V--COLLECTIONS OF INFORMATION ANTIPIRACY ACT
SEC. 501. SHORT TITLE.
This title may be cited as the ``Collections of Information
Antipiracy Act''.
SEC. 502. MISAPPROPRIATION OF COLLECTIONS OF INFORMATION.
Title 17, United States Code, is amended by adding at the
end the following new chapter:
``CHAPTER 13--MISAPPROPRIATION OF COLLECTIONS OF INFORMATION
``Sec.
``1301. Definitions.
``1302. Prohibition against misappropriation.
``1303. Permitted acts.
``1304. Exclusions.
``1305. Relationship to other laws.
``1306. Civil remedies.
``1307. Criminal offenses and penalties.
``1308. Limitations on actions.
``Sec. 1301. 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
1302 has current and demonstrable plans to exploit or that is
commonly exploited by persons offering similar products or
services incorporating collections of information.
``(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. 1302. 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
1306.
``Sec. 1303. 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
1302. 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 1302.
``(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 or using a
collection of 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 used
be extracted from the original collection and 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.--Notwithstanding section 1302, no person shall be
restricted from extracting or using information for nonprofit
educational, scientific, or research purposes in a manner
that does not harm directly the
[[Page H7087]]
actual market for the product or service referred to in
section 1302.
``(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 and has been gathered by
a news reporting entity, and the extraction or use is part of
a consistent pattern engaged in for the purpose of direct
competition.
``(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. 1304. 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 1305(g) of this title; or
``(B) under the Commodity Exchange Act by a contract
market, subject to section 1305(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. 1305. 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 1302 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 and Commodities Market Information.--
``(1) Federal agencies and acts.--Nothing in this Act shall
affect:
``(A) the operation of the provisions of the Securities
Exchange Act of 1934 (15 U.S.C. 78a et seq.) or the Commodity
Exchange Act (7 U.S.C. 1 et seq.);
``(B) the jurisdiction or authority of the Securities and
Exchange Commission and the Commodity Futures Trading
Commission; or
``(C) the functions and operations of self-regulatory
organizations and securities information processors under the
provisions of the Securities Exchange Act of 1934 and the
rules and regulations thereunder, including making market
information available pursuant to the provisions of that Act
and the rules and regulations promulgated thereunder.
``(2) Prohibition.--Notwithstanding any provision in
subsection (a), (b), (c), (d), or (f) of section 1303,
nothing in this chapter shall permit the extraction, use,
resale, or other disposition of real-time market information
except as the Securities Exchange Act of 1934, the Commodity
Exchange Act, and the rules and regulations thereunder may
otherwise provide. In addition, nothing in subsection (e) of
section 1303 shall be construed to permit any person to
extract or use real-time market information in a manner that
constitutes a market substitute for a real-time market
information service (including the real-time systematic
updating of or display of a substantial part of market
information) provided on a real-time basis.
``(3) Definition.--As used in this subsection, the term
`market information' means information relating to quotations
and transactions that is collected, processed, distributed,
or published pursuant to the provisions of the Securities
Exchange Act of 1934 or by a contract market that is
designated by the Commodity Futures Trading Commission
pursuant to the Commodity Exchange Act and the rules and
regulations thereunder.
``Sec. 1306. Civil remedies
``(a) Civil Actions.--Any person who is injured by a
violation of section 1302 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 1302. 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 1302, 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 1302, order the
remedial modification or destruction of all copies of
contents of a collection of information extracted or used in
violation of section 1302, 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 1302
has been established in any civil action arising under this
section, the 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 and the defendant shall be
required to 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. 1307. Criminal offenses and penalties
``(a) Violation.--
[[Page H7088]]
``(1) In general.--Any person who violates section 1302
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. 1308. 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. 503. CONFORMING AMENDMENT.
The table of chapters for title 17, United States Code, is
amended by adding at the end the following:
``13. Misappropriation of Collections of Information........1301''.....
SEC. 504. 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 13 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 13 of title 17'' after ``chapter 9 of title
17''.
SEC. 505. EFFECTIVE DATE.
(a) In General.--This title and the amendments made by this
title 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 13 of title 17, United States Code, as added by
section 502 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.
TITLE VI--PROTECTION OF CERTAIN ORIGINAL DESIGNS
SEC. 601. SHORT TITLE.
This Act may be referred to as the ``Vessel Hull Design
Protection Act''.
SEC. 602. PROTECTION OF CERTAIN ORIGINAL DESIGNS.
Title 17, United States Code, is amended by adding at the
end the following new chapter:
``CHAPTER 14--PROTECTION OF ORIGINAL DESIGNS
``Sec.
``1401. Designs protected.
``1402. Designs not subject to protection.
``1403. Revisions, adaptations, and rearrangements.
``1404. Commencement of protection.
``1405. Term of protection.
``1406. Design notice.
``1407. Effect of omission of notice.
``1408. Exclusive rights.
``1409. Infringement.
``1410. Application for registration.
``1411. Benefit of earlier filing date in foreign country.
``1412. Oaths and acknowledgments.
``1413. Examination of application and issue or refusal of
registration.
``1414. Certification of registration.
``1415. Publication of announcements and indexes.
``1416. Fees.
``1417. Regulations.
``1418. Copies of records.
``1419. Correction of errors in certificates.
``1420. Ownership and transfer.
``1421. Remedy for infringement.
``1422. Injunctions.
``1423. Recovery for infringement.
``1424. Power of court over registration.
``1425. Liability for action on registration fraudulently obtained.
``1426. Penalty for false marking.
``1427. Penalty for false representation.
``1428. Enforcement by Treasury and Postal Service .
``1429. Relation to design patent law.
``1430. Common law and other rights unaffected.
``1431. Administrator; Office of the Administrator.
``1432. No retroactive effect.
``Sec. 1401. Designs protected
``(a) Designs Protected.--
``(1) In general.--The designer or other owner of an
original design of a useful article which makes the article
attractive or distinctive in appearance to the purchasing or
using public may secure the protection provided by this
chapter upon complying with and subject to this chapter.
``(2) Vessel hulls.--The design of a vessel hull, including
a plug or mold, is subject to protection under this chapter,
notwithstanding section 1402(4).
``(b) Definitions.--For the purpose of this chapter, the
following terms have the following meanings:
``(1) A design is `original' if it is the result of the
designer's creative endeavor that provides a distinguishable
variation over prior work pertaining to similar articles
which is more than merely trivial and has not been copied
from another source.
``(2) A `useful article' is a vessel hull, including a plug
or mold, which in normal use has an intrinsic utilitarian
function that is not merely to portray the appearance of the
article or to convey information. An article which normally
is part of a useful article shall be deemed to be a useful
article.
``(3) A `vessel' is a craft, especially one larger than a
rowboat, designed to navigate on water, but does not include
any such craft that exceeds 200 feet in length.
``(4) A `hull' is the frame or body of a vessel, including
the deck of a vessel, exclusive of masts, sails, yards, and
rigging.
``(5) A `plug' means a device or model used to make a mold
for the purpose of exact duplication, regardless of whether
the device or model has an intrinsic utilitarian function
that is not only to portray the appearance of the product or
to convey information.
``(6) A `mold' means a matrix or form in which a substance
for material is used, regardless of whether the matrix or
form has an intrinsic utilitarian function that is not only
to portray the appearance of the product or to convey
information.
``Sec. 1402. Designs not subject to protection
``Protection under this chapter shall not be available for
a design that is--
``(1) not original;
``(2) staple or commonplace, such as a standard geometric
figure, a familiar symbol, an emblem, or a motif, or another
shape, pattern, or configuration which has become standard,
common, prevalent, or ordinary;
``(3) different from a design excluded by paragraph (2)
only in insignificant details or in elements which are
variants commonly used in the relevant trades;
``(4) dictated solely by a utilitarian function of the
article that embodies it; or
``(5) embodied in a useful article that was made public by
the designer or owner in the United States or a foreign
country more than 1 year before the date of the application
for registration under this chapter.
``Sec. 1403. Revisions, adaptations, and rearrangements
``Protection for a design under this chapter shall be
available notwithstanding the employment in the design of
subject matter excluded from protection under section 1402 if
the design is a substantial revision, adaptation, or
rearrangement of such subject matter. Such protection shall
be independent of any subsisting protection in subject matter
employed in the design, and shall not be construed as
securing any right to subject matter excluded from protection
under this chapter or as extending any subsisting protection
under this chapter.
``Sec. 1404. Commencement of protection
``The protection provided for a design under this chapter
shall commence upon the earlier of the date of publication of
the registration under section 1413(a) or the date the design
is first made public as defined by section 1410(b).
``Sec. 1405. Term of protection
``(a) In General.--Subject to subsection (b), the
protection provided under this chapter for a design shall
continue for a term of 10 years beginning on the date of the
commencement of protection under section 1404.
``(b) Expiration.--All terms of protection provided in this
section shall run to the end of the calendar year in which
they would otherwise expire.
``(c) Termination of Rights.--Upon expiration or
termination of protection in a particular design under this
chapter, all rights under this chapter in the design shall
terminate, regardless of the number of different articles in
which the design may have been used during the term of its
protection.
``Sec. 1406. Design notice
``(a) Contents of Design Notice.--(1) Whenever any design
for which protection is sought under this chapter is made
public under section 1410(b), the owner of the design shall,
subject to the provisions of section 1407, mark it or have it
marked legibly with a design notice consisting of--
[[Page H7089]]
``(A) the words `Protected Design', the abbreviation
`Prot'd Des.', or the letter `D' with a circle, or the symbol
*D*;
``(B) the year of the date on which protection for the
design commenced; and
``(C) the name of the owner, an abbreviation by which the
name can be recognized, or a generally accepted alternative
designation of the owner.
Any distinctive identification of the owner may be used for
purposes of subparagraph (C) if it has been recorded by the
Administrator before the design marked with such
identification is registered.
``(2) After registration, the registration number may be
used instead of the elements specified in subparagraphs (B)
and (C) of paragraph (1).
``(b) Location of Notice.--The design notice shall be so
located and applied as to give reasonable notice of design
protection while the useful article embodying the design is
passing through its normal channels of commerce.
``(c) Subsequent Removal of Notice.--When the owner of a
design has complied with the provisions of this section,
protection under this chapter shall not be affected by the
removal, destruction, or obliteration by others of the design
notice on an article.
``Sec. 1407. Effect of omission of notice
``(a) Actions With Notice.--Except as provided in
subsection (b), the omission of the notice prescribed in
section 1406 shall not cause loss of the protection under
this chapter or prevent recovery for infringement under this
chapter against any person who, after receiving written
notice of the design protection, begins an undertaking
leading to infringement under this chapter.
``(b) Actions Without Notice.--The omission of the notice
prescribed in section 1406 shall prevent any recovery under
section 1423 against a person who began an undertaking
leading to infringement under this chapter before receiving
written notice of the design protection. No injunction shall
be issued under this chapter with respect to such undertaking
unless the owner of the design reimburses that person for any
reasonable expenditure or contractual obligation in
connection with such undertaking that was incurred before
receiving written notice of the design protection, as the
court in its discretion directs. The burden of providing
written notice of design protection shall be on the owner of
the design.
``Sec. 1408. Exclusive rights
``The owner of a design protected under this chapter has
the exclusive right to--
``(1) make, have made, or import, for sale or for use in
trade, any useful article embodying that design; and
``(2) sell or distribute for sale or for use in trade any
useful article embodying that design.
``Sec. 1409. Infringement
``(a) Acts of Infringement.--Except as provided in
subjection (b), it shall be infringement of the exclusive
rights in a design protected under this chapter for any
person, without the consent of the owner of the design,
within the United States and during the term of such
protection, to--
``(1) make, have made, or import, for sale or for use in
trade, any infringing article as defined in subsection (e);
or
``(2) sell or distribute for sale or for use in trade any
such infringing article.
``(b) Acts of Sellers and Distributors.--A seller or
distributor of an infringing article who did not make or
import the article shall be deemed to have infringed on a
design protected under this chapter only if that person--
``(1) induced or acted in collusion with a manufacturer to
make, or an importer to import such article, except that
merely purchasing or giving an order to purchase such article
in the ordinary course of business shall not of itself
constitute such inducement or collusion; or
``(2) refused or failed, upon the request of the owner of
the design, to make a prompt and full disclosure of that
person's source of such article, and that person orders or
reorders such article after receiving notice by registered or
certified mail of the protection subsisting in the design.
``(c) Acts Without Knowledge.--It shall not be infringement
under this section to make, have made, import, sell, or
distribute, any article embodying a design which was created
without knowledge that a design was protected under this
chapter and was copied from such protected design.
``(d) Acts in Ordinary Course of Business.--A person who
incorporates into that person's product of manufacture an
infringing article acquired from others in the ordinary
course of business, or who, without knowledge of the
protected design embodied in an infringing article, makes or
processes the infringing article for the account of another
person in the ordinary course of business, shall not be
deemed to have infringed the rights in that design under this
chapter except under a condition contained in paragraph (1)
or (2) of subsection (b). Accepting an order or reorder from
the source of the infringing article shall be deemed ordering
or reordering within the meaning of subsection (b)(2).
``(e) Infringing Article Defined.--As used in this section,
an `infringing article' is any article the design of which
has been copied from a design protected under this chapter,
without the consent of the owner of the protected design. An
infringing article is not an illustration or picture of a
protected design in an advertisement, book, periodical,
newspaper, photograph, broadcast, motion picture, or similar
medium. A design shall not be deemed to have been copied from
a protected design if it is original and not substantially
similar in appearance to a protected design.
``(f) Establishing Originality.--The party to any action or
proceeding under this chapter who alleges rights under this
chapter in a design shall have the burden of establishing the
design's originality whenever the opposing party introduces
an earlier work which is identical to such design, or so
similar as to make prima facie showing that such design was
copied from such work.
``(g) Reproduction for Teaching or Analysis.--It is not an
infringement of the exclusive rights of a design owner for a
person to reproduce the design in a useful article or in any
other form solely for the purpose of teaching, analyzing, or
evaluating the appearance, concepts, or techniques embodied
in the design, or the function of the useful article
embodying the design.
``Sec. 1410. Application for registration
``(a) Time Limit for Application for Registration.--
Protection under this chapter shall be lost if application
for registration of the design is not made within two years
after the date on which the design is first made public.
``(b) When Design Is Made Public.--A design is made public
when an existing useful article embodying the design is
anywhere publicly exhibited, publicly distributed, or offered
for sale or sold to the public by the owner of the design or
with the owner's consent.
``(c) Application by Owner of Design.--Application for
registration may be made by the owner of the design.
``(d) Contents of Application.--The application for
registration shall be made to the Administrator and shall
state--
``(1) the name and address of the designer or designers of
the design;
``(2) the name and address of the owner if different from
the designer;
``(3) the specific name of the useful article embodying the
design;
``(4) the date, if any, that the design was first made
public, if such date was earlier than the date of the
application;
``(5) affirmation that the design has been fixed in a
useful article; and
``(6) such other information as may be required by the
Administrator.
The application for registration may include a description
setting forth the salient features of the design, but the
absence of such a description shall not prevent registration
under this chapter.
``(e) Sworn Statement.--The application for registration
shall be accompanied by a statement under oath by the
applicant or the applicant's duly authorized agent or
representative, setting forth, to the best of the applicant's
knowledge and belief--
``(1) that the design is original and was created by the
designer or designers named in the application;
``(2) that the design has not previously been registered on
behalf of the applicant or the applicant's predecessor in
title; and
``(3) that the applicant is the person entitled to
protection and to registration under this chapter.
If the design has been made public with the design notice
prescribed in section 1406, the statement shall also describe
the exact form and position of the design notice.
``(f) Effect of Errors.--(1) Error in any statement or
assertion as to the utility of the useful article named in
the application under this section, the design of which is
sought to be registered, shall not affect the protection
secured under this chapter.
``(2) Errors in omitting a joint designer or in naming an
alleged joint designer shall not affect the validity of the
registration, or the actual ownership or the protection of
the design, unless it is shown that the error occurred with
deceptive intent.
``(g) Design Made in Scope of Employment.--In a case in
which the design was made within the regular scope of the
designer's employment and individual authorship of the design
is difficult or impossible to ascribe and the application so
states, the name and address of the employer for whom the
design was made may be stated instead of that of the
individual designer.
``(h) Pictorial Representation of Design.--The application
for registration shall be accompanied by two copies of a
drawing or other pictorial representation of the useful
article embodying the design, having one or more views,
adequate to show the design, in a form and style suitable for
reproduction, which shall be deemed a part of the
application.
``(i) Design in More Than One Useful Article.--If the
distinguishing elements of a design are in substantially the
same form in different useful articles, the design shall be
protected as to all such useful articles when protected as to
one of them, but not more than one registration shall be
required for the design.
``(j) Application for More Than One Design.--More than one
design may be included in the same application under such
conditions as may be prescribed by the Administrator. For
each design included in an application the fee prescribed for
a single design shall be paid.
``Sec. 1411. Benefit of earlier filing date in foreign
country
``An application for registration of a design filed in the
United States by any person who has, or whose legal
representative or predecessor or successor in title has,
previously
[[Page H7090]]
filed an application for registration of the same design in a
foreign country which extends to designs of owners who are
citizens of the United States, or to applications filed under
this chapter, similar protection to that provided under this
chapter shall have that same effect as if filed in the United
States on the date on which the application was first filed
in such foreign country, if the application in the United
States is filed within 6 months after the earliest date on
which any such foreign application was filed.
``Sec. 1412. Oaths and acknowledgments
``(a) In General.--Oaths and acknowledgments required by
this chapter--
``(1) may be made--
``(A) before any person in the United States authorized by
law to administer oaths; or
``(B) when made in a foreign country, before any diplomatic
or consular officer of the United States authorized to
administer oaths, or before any official authorized to
administer oaths in the foreign country concerned, whose
authority shall be proved by a certificate of a diplomatic or
consular officer of the United States; and
``(2) shall be valid if they comply with the laws of the
State or country where made.
``(b) Written Declaration in Lieu of Oath.--(1) The
Administrator may by rule prescribe that any document which
is to be filed under this chapter in the Office of the
Administrator and which is required by any law, rule, or
other regulation to be under oath, may be subscribed to by a
written declaration in such form as the Administrator may
prescribe, and such declaration shall be in lieu of the oath
otherwise required.
``(2) Whenever a written declaration under paragraph (1) is
used, the document containing the declaration shall state
that willful false statements are punishable by fine or
imprisonment, or both, pursuant to section 1001 of title 18,
and may jeopardize the validity of the application or
document or a registration resulting therefrom.
``Sec. 1413. Examination of application and issue or refusal
of registration
``(a) Determination of Registrability of Design;
Registration.--Upon the filing of an application for
registration in proper form under section 1410, and upon
payment of the fee prescribed under section 1416, the
Administrator shall determine whether or not the application
relates to a design which on its face appears to be subject
to protection under this chapter, and, if so, the Register
shall register the design. Registration under this subsection
shall be announced by publication. The date of registration
shall be the date of publication.
``(b) Refusal To Register; Reconsideration.--If, in the
judgment of the Administrator, the application for
registration relates to a design which on its face is not
subject to protection under this chapter, the Administrator
shall send to the applicant a notice of refusal to register
and the grounds for the refusal. Within 3 months after the
date on which the notice of refusal is sent, the applicant
may, by written request, seek reconsideration of the
application. After consideration of such a request, the
Administrator shall either register the design or send to the
applicant a notice of final refusal to register.
``(c) Application To Cancel Registration.--Any person who
believes he or she is or will be damaged by a registration
under this chapter may, upon payment of the prescribed fee,
apply to the Administrator at any time to cancel the
registration on the ground that the design is not subject to
protection under this chapter, stating the reasons for the
request. Upon receipt of an application for cancellation, the
Administrator shall send to the owner of the design, as shown
in the records of the Office of the Administrator, a notice
of the application, and the owner shall have a period of 3
months after the date on which such notice is mailed in which
to present arguments to the Administrator for support of the
validity of the registration. The Administrator shall also
have the authority to establish, by regulation, conditions
under which the opposing parties may appear and be heard in
support of their arguments. If, after the periods provided
for the presentation of arguments have expired, the
Administrator determines that the applicant for cancellation
has established that the design is not subject to protection
under this chapter, the Administrator shall order the
registration stricken from the record. Cancellation under
this subsection shall be announced by publication, and notice
of the Administrator's final determination with respect to
any application for cancellation shall be sent to the
applicant and to the owner of record.
``Sec. 1414. Certification of registration
``Certificates of registration shall be issued in the name
of the United States under the seal of the Office of the
Administrator and shall be recorded in the official records
of the Office. The certificate shall state the name of the
useful article, the date of filing of the application, the
date of registration, and the date the design was made
public, if earlier than the date of filing of the
application, and shall contain a reproduction of the drawing
or other pictorial representation of the design. If a
description of the salient features of the design appears in
the application, the description shall also appear in the
certificate. A certificate of registration shall be admitted
in any court as prima facie evidence of the facts stated in
the certificate.
``Sec. 1415. Publication of announcements and indexes
``(a) Publications of the Administrator.--The Administrator
shall publish lists and indexes of registered designs and
cancellations of designs and may also publish the drawings or
other pictorial representations of registered designs for
sale or other distribution.
``(b) File of Representatives of Registered Designs.--The
Administrator shall establish and maintain a file of the
drawings or other pictorial representations of registered
designs. The file shall be available for use by the public
under such conditions as the Administrator may prescribe.
``Sec. 1416. Fees
``The Administrator shall by regulation set reasonable fees
for the filing of applications to register designs under this
chapter and for other services relating to the administration
of this chapter, taking into consideration the cost of
providing these services and the benefit of a public record.
``Sec. 1417. Regulations
``The Administrator may establish regulations for the
administration of this chapter.
``Sec. 1418. Copies of records
``Upon payment of the prescribed fee, any person may obtain
a certified copy of any official record of the Office of the
Administrator that relates to this chapter. That copy shall
be admissible in evidence with the same effect as the
original.
``Sec. 1419. Correction of errors in certificates
``The Administrator may, by a certificate of correction
under seal, correct any error in a registration incurred
through the fault of the Office, or, upon payment of the
required fee, any error of a clerical or typographical nature
occurring in good faith but not through the fault of the
Office. Such registration, together with the certificate,
shall thereafter have the same effect as if it had been
originally issued in such corrected form.
``Sec. 1420. Ownership and transfer
``(a) Property Right in Design.--The property right in a
design subject to protection under this chapter shall vest in
the designer, the legal representatives of a deceased
designer or of one under legal incapacity, the employer for
whom the designer created the design in the case of a design
made within the regular scope of the designer's employment,
or a person to whom the rights of the designer or of such
employer have been transferred. The person in whom the
property right is vested shall be considered the owner of the
design.
``(b) Transfer of Property Right.--The property right in a
registered design, or a design for which an application for
registration has been or may be filed, may be assigned,
granted, conveyed, or mortgaged by an instrument in writing,
signed by the owner, or may be bequeathed by will.
``(c) Oath or Acknowledgement of Transfer.--An oath or
acknowledgment under section 1412 shall be prima facie
evidence of the execution of an assignment, grant,
conveyance, or mortgage under subsection (b).
``(d) Recordation of Transfer.--An assignment, grant,
conveyance, or mortgage under subsection (b) shall be void as
against any subsequent purchaser or mortgagee for a valuable
consideration, unless it is recorded in the Office of the
Administrator within 3 months after its date of execution or
before the date of such subsequent purchase or mortgage.
``Sec. 1421. Remedy for infringement
``(a) In General.--The owner of a design is entitled, after
issuance of a certificate of registration of the design under
this chapter, to institute an action for any infringement of
the design.
``(b) Review of Refusal To Register.--(1) Subject to
paragraph (2), the owner of a design may seek judicial review
of a final refusal of the Administrator to register the
design under this chapter by bringing a civil action, and may
in the same action, if the court adjudges the design subject
to protection under this chapter, enforce the rights in that
design under this chapter.
``(2) The owner of a design may seek judicial review under
this section if--
``(A) the owner has previously duly filed and prosecuted to
final refusal an application in proper form for registration
of the design;
``(B) the owner causes a copy of the complaint in the
action to be delivered to the Administrator within 10 days
after the commencement of the action; and
``(C) the defendant has committed acts in respect to the
design which would constitute infringement with respect to a
design protected under this chapter.
``(c) Administrator as Party to Action.--The Administrator
may, at the Administrator's option, become a party to the
action with respect to the issue of registrability of the
design claim by entering an appearance within 60 days after
being served with the complaint, but the failure of the
Administrator to become a party shall not deprive the court
of jurisdiction to determine that issue.
``(d) Use of Arbitration To Resolve Dispute.--The parties
to an infringement dispute under this chapter, within such
time as may be specified by the Administrator by regulation,
may determine the dispute, or any aspect of the dispute, by
arbitration. Arbitration shall be governed by title 9. The
parties shall give notice of any arbitration award to the
Administrator, and such award shall, as between the parties
to the arbitration, be dispositive of the issues to which it
[[Page H7091]]
relates. The arbitration award shall be unenforceable until
such notice is given. Nothing in this subsection shall
preclude the Administrator from determining whether a design
is subject to registration in a cancellation proceeding under
section 1413(c).
Sec. 1422. Injunctions
``(a) In General.--A court having jurisdiction over actions
under this chapter may grant injunctions in accordance with
the principles of equity to prevent infringement of a design
under this chapter, including, in its discretion, prompt
relief by temporary restraining orders and preliminary
injunctions.
``(b) Damages for Injunctive Relief Wrongfully Obtained.--A
seller or distributor who suffers damage by reason of
injunctive relief wrongfully obtained under this section has
a cause of action against the applicant for such injunctive
relief and may recover such relief as may be appropriate,
including damages for lost profits, cost of materials, loss
of good will, and punitive damages in instances where the
injunctive relief was sought in bad faith, and, unless the
court finds extenuating circumstances, reasonable attorney's
fees.
``Sec. 1423. Recovery for infringement
``(a) Damages.--Upon a finding for the claimant in an
action for infringement under this chapter, the court shall
award the claimant damages adequate to compensate for the
infringement. In addition, the court may increase the damages
to such amount, not exceeding $50,000 or $1 per copy,
whichever is greater, as the court determines to be just. The
damages awarded shall constitute compensation and not a
penalty. The court may receive expert testimony as an aid to
the determination of damages.
``(b) Infringer's Profits.--As an alternative to the
remedies provided in subsection (a), the court may award the
claimant the infringer's profits resulting from the sale of
the copies if the court finds that the infringer's sales are
reasonably related to the use of the claimant's design. In
such a case, the claimant shall be required to prove only the
amount of the infringer's sales and the infringer shall be
required to prove its expenses against such sales.
``(c) Statute of Limitations.--No recovery under subsection
(a) or (b) shall be had for any infringement committed more
than 3 years before the date on which the complaint is filed.
``(d) Attorney's Fees.--In an action for infringement under
this chapter, the court may award reasonable attorney's fees
to the prevailing party.
``(e) Disposition of Infringing and Other Articles.--The
court may order that all infringing articles, and any plates,
molds, patterns, models, or other means specifically adapted
for making the articles, be delivered up for destruction or
other disposition as the court may direct.
``Sec. 1424. Power of court over registration
``In any action involving the protection of a design under
this chapter, the court, when appropriate, may order
registration of a design under this chapter or the
cancellation of such a registration. Any such order shall be
certified by the court to the Administrator, who shall make
an appropriate entry upon the record.
``Sec. 1425. Liability for action on registration
fraudulently obtained
``Any person who brings an action for infringement knowing
that registration of the design was obtained by a false or
fraudulent representation materially affecting the rights
under this chapter, shall be liable in the sum of $10,000, or
such part of that amount as the court may determine. That
amount shall be to compensate the defendant and shall be
charged against the plaintiff and paid to the defendant, in
addition to such costs and attorney's fees of the defendant
as may be assessed by the court.
``Sec. 1426. Penalty for false marking
``(a) In General.--Whoever, for the purpose of deceiving
the public, marks upon, applies to, or uses in advertising in
connection with an article made, used, distributed, or sold,
a design which is not protected under this chapter, a design
notice specified in section 1406, or any other words or
symbols importing that the design is protected under this
chapter, knowing that the design is not so protected, shall
pay a civil fine of not more than $500 for each such offense.
``(b) Suit by Private Persons.--Any person may sue for the
penalty established by subsection (a), in which event one-
half of the penalty shall be awarded to the person suing and
the remainder shall be awarded to the United States.
``Sec. 1427. Penalty for false representation
``Whoever knowingly makes a false representation materially
affecting the rights obtainable under this chapter for the
purpose of obtaining registration of a design under this
chapter shall pay a penalty of not less than $500 and not
more than $1,000, and any rights or privileges that
individual may have in the design under this chapter shall be
forfeited.
``Sec. 1428. Enforcement by Treasury and Postal Service
``(a) Regulations.--The Secretary of the Treasury and the
United States Postal Service shall separately or jointly
issue regulations for the enforcement of the rights set forth
in section 1408 with respect to importation. Such regulations
may require, as a condition for the exclusion of articles
from the United States, that the person seeking exclusion
take any one or more of the following actions:
``(1) Obtain a court order enjoining, or an order of the
International Trade Commission under section 337 of the
Tariff Act of 1930 excluding, importation of the articles.
``(2) Furnish proof that the design involved is protected
under this chapter and that the importation of the articles
would infringe the rights in the design under this chapter.
``(3) Post a surety bond for any injury that may result if
the detention or exclusion of the articles proves to be
unjustified.
``(b) Seizure and Forfeiture.--Articles imported in
violation of the rights set forth in section 1408 are subject
to seizure and forfeiture in the same manner as property
imported in violation of the customs laws. Any such forfeited
articles shall be destroyed as directed by the Secretary of
the Treasury or the court, as the case may be, except that
the articles may be returned to the country of export
whenever it is shown to the satisfaction of the Secretary of
the Treasury that the importer had no reasonable grounds for
believing that his or her acts constituted a violation of the
law.
``Sec. 1429. Relation to design patent law
``The issuance of a design patent under title 35 for an
original design for an article of manufacture shall terminate
any protection of the original design under this chapter.
``Sec. 1430. Common law and other rights unaffected
``Nothing in this chapter shall annul or limit--
``(1) common law or other rights or remedies, if any,
available to or held by any person with respect to a design
which has not been registered under this chapter; or
``(2) any right under the trademark laws or any right
protected against unfair competition.
``Sec. 1431. Administrator; Office of the Administrator
``In this chapter, the `Administrator' is the Register of
Copyrights, and the `Office of the Administrator' and the
`Office' refer to the Copyright Office of the Library of
Congress.
``Sec. 1432. No retroactive effect
``Protection under this chapter shall not be available for
any design that has been made public under section 1410(b)
before the effective date of this chapter.''.
SEC. 603. CONFORMING AMENDMENTS.
(a) Table of Chapters.--The table of chapters for title 17,
United States Code, is amended by adding at the end the
following:
``14. Protection of Original Designs........................1401''.....
(b) Jurisdiction of District Courts Over Design Actions.--
(1) Section 1338(c) of title 28, United States Code, is
amended by inserting ``, and to exclusive rights in designs
under chapter 14 of title 17,'' after ``title 17''.
(2)(A) The section heading for section 1338 of title 28,
United States Code, is amended by inserting ``designs,''
after ``mask works,''.
(B) The item relating to section 1338 in the table of
sections at the beginning of chapter 85 of title 28, United
States Code, is amended by inserting ``designs,'' after
``mask works,''.
(c) Place for Bringing Design Actions.--Section 1400(a) of
title 28, United States Code, is amended by inserting ``or
designs'' after ``mask works''.
(d) Actions Against the United States.--Section 1498(e) of
title 28, United States Code, is amended by inserting ``, and
to exclusive rights in designs under chapter 14 of title
17,'' after ``title 17''.
SEC. 604. EFFECTIVE DATE.
The amendments made by sections 602 and 603 shall take
effect one year after the date of the enactment of this Act.
The SPEAKER pro tempore. 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 10 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 ask unanimous consent that the gentleman
from Virginia (Mr. Bliley), the chairman of the Committee on Commerce,
be allowed to control 10 of my 20 minutes.
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.
Oftentimes when significant legislation comes to the floor, it is
described as landmark legislation. At the risk of being presumptuous
and immodest, I think this may well indeed be landmark legislation.
This bill will implement two treaties which are extremely important
to ensure the adequate protection for American works in countries
around the world, particularly at a time when the
[[Page H7092]]
digital environment now allows users to send and retrieve perfect
copies of copyrighted material over the Internet. While digital
dissemination of copies will benefit owners and consumers, it will
unfortunately also facilitate pirates who aim to destroy the value of
American intellectual property. In compliance with the treaties, H.R.
2281 makes it unlawful to defeat technological protections used by
copyright owners to protect their works, including preventing unlawful
access and targeting devices made to circumvent encrypted copyrighted
material. It also makes it unlawful to deliberately alter or delete
information provided by a copyright owner which identifies a work, its
owners, and its permissible use.
H.R. 2281, Madam Speaker, is a comprehensive copyright bill that adds
substantial value to our copyright law. It represents five years of
research, debate, hearings and negotiations. It is only the beginning
of Congress' evaluation of the impact of the digital age on copyrighted
works. Although it is just a beginning, it is essential to maintain the
United States' position as the world leader in the protection of
intellectual property in the digital environment.
H.R. 2281 also represents the collective efforts of many. In
particular I want to commend the gentleman from Illinois (Mr. Hyde),
the chairman of the Committee on the Judiciary; the gentleman from
Michigan (Mr. Conyers), the ranking member of the Committee on the
Judiciary; and the gentleman from Massachusetts (Mr. Frank), the
ranking member of the Subcommittee on Courts and Intellectual Property.
H.R. 2281, Madam Speaker, in my opinion is necessary legislation to
ensure the protection of copyrighted works as the world moves into the
digital environment. I urge its passage.
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 first want to note that this is a matter that the
Committee on the Judiciary has been working on for some time. It then
went, under our rules, to the Committee on Commerce. Both committees
and indeed both parties in both committees bring this bill forward. I
note that because people who have been unduly addicted to the media
would not, I think, have an understanding of what has been happening.
We have here some very complex issues dealing with the economy and how
we adapt some fundamental principles, intellectual property principles
which are very important to us, to modern technology. There were some
sharp disagreements. There were some conflicting and competing values,
as is often the case. What has happened is for a period of some time,
first in the Committee on the Judiciary and then in the Committee on
Commerce, people have worked on this and come up with what I believe is
a very good set of solutions.
I note that because I do think the public is entitled to know that
the portrayals of the Congress in general, the Committee on the
Judiciary in particular as somehow the set of a Three Stooges movie or
the scene of ferocious battles simply is not true. One of the problems
we have today is that there is an inattention on the part of our
friends in the media to what is the actual business of this place. I
think it is important for people to understand. These are very serious
issues that had to be dealt with, conflicting values.
For example, many of us feel very strongly on the need to protect
intellectual property. If we do not see that authors and composers and
singers and musicians and other creative people are rewarded for their
work, not only is that unfair, to many of us, but the amount of work we
get will diminish.
{time} 1345
There may be some people fortunate enough to be able to create out of
love without regard to compensation. We cannot depend only on the
independently wealthy to be our creative people. It is important for us
as a vibrant society to sustain that, and one way to sustain that is to
recognize the property that people have in the product of their
intellectual labors, their creative intellectual labors.
That was, to some extent, threatened by modern technology, by
technological change which makes it easier for that minority of people
who do not respect others' intellectual property to steal it because of
the collection of technology we now use, the short end of the Internet.
What we wanted to do was to come up with ways to adapt the protection
of intellectual property to a modern technological era without unduly
diminishing people's rights to enjoy things. We do not want to prevent
the public from having the enjoyment of these products.
Madam Speaker, I have one thing that bothered me in particular, and I
am pleased that this bill addresses it in a reasonable way because
there was no guarantee that it would.
One of the things we do here is to say:
``If you are an on-line service provider, if you are
responsible for the production of all of this out to the
public, you will not be held automatically responsible if
someone misuses the electronic airway you provide to steal
other people's property.
There is a balance here. We want to protect property, but we do not
want to deter people from making this widely available. We have a
problem here of making sure that intellectual property is protected,
but we do not want freedom of expression impinged upon.
Madam Speaker, I found that particularly important for this reason,
and I think this is a point that I want very much to stress:
We live in as free a society from the standpoint of expression as I
believe has ever existed in the world. The level of freedom of
expression which Americans enjoy is very, very profound, and that is
very important to us.
The problem is we have had two doctrines of freedom of expression. We
have had one which covered all speech and written speech, newspapers,
magazines, theater, billboards; that has been very free.
Beginning in the 1930s when radio came to play, we started a new form
of speech, and that was speech electronically transmitted. And because
we started with a limited spectrum, because we started with physical
limitations on the amount of speech that could go out, we began with
electronically-communicated speech in the 1930s to develop a parallel
doctrine which gave less protection to speech electronically
transmitted. Over time we had a tradition of constitutionally very
protected speech, and then speech transmitted electronically that was
less protected.
The problem here is that as this society goes forward, an
increasingly high percentage of what we say to each other will be
electronically transmitted through E-mail and through other ways. It
seems to me important for us to reverse this notion that
electronically-transmitted speech is entitled to a lesser degree of
protection in the area of freedom of expression than all other forms of
speech or we will be, 30 years from now, a less free society. That has
application to legislation of various kinds, and we will deal with that
in another context.
But one of the things that was a potential danger here was that by
protecting intellectual property, a very important job, we would have
imposed on the on-line service providers such a degree of liability as,
in fact, to diminish to some extent the freedom they felt in presenting
things.
What I am most happy about in this bill is I think we have hit about
the right balance. We have hit a balance which fully protects
intellectual property, which is essential to the creative life of
America, to the quality of our life, because if we do not protect the
creators, there will be less creation. But at the same time we have
done this in a way that will not give to the people in the business of
running the on-line service entities and running Internet, it will not
give them either an incentive or an excuse to censor.
No bill is perfect. There are some tensions here. This will go to
conference, and then there will be room for some further changes.
But for achieving that essential balance I am very pleased, and I
want to note again the two committees of this House and the parties
represented in both committees worked very closely together to bring
forward legislation without rancor, without partisanship, in fact
serving very well the needs of this country.
Madam Speaker, I reserve the balance of the time.
[[Page H7093]]
Mr. BLILEY. Madam Speaker, I yield myself 2 minutes.
(Mr. BLILEY asked and was given permission to revise and extend his
remarks and include extraneous material.)
Mr. BLILEY. Madam Speaker, I rise in support of H.R. 2281, and would
like to begin by commending my good friend and colleague, the gentleman
from Illinois (Mr. Hyde), the chairman of the House Committee on the
Judiciary, and his very able subcommittee chairman, the gentleman from
Greensboro, North Carolina (Mr. Coble), the chairman of the
Subcommittee on Courts and Intellectual Property of the Committee on
the Judiciary.
And I would also like to thank two members of the Committee on
Commerce in addition to my ranking member, the gentleman from Michigan
(Mr. Dingell), but I would also like to thank the gentleman from
Wisconsin (Mr. Klug) and the gentleman from Virginia (Mr. Boucher) whom
I believe through their work have improved this legislation. It is
because of the steadfast commitment to enacting this important
legislation that we are here today on the brink of enactment.
I would like to thank the gentleman from Massachusetts (Mr. Frank),
the ranking member of the subcommittee, for his work, as well as the
gentleman from Massachusetts (Mr. Markey) for his contributions. It
shows that we can work together and we can achieve very important
legislation.
As my colleagues know, Madam Speaker, with the growth of electronic
commerce having such a profound effect on the economy, the Committee on
Commerce has been engaged in a wide-ranging review of the subject,
including the issues raised by H.R. 2281. The Committee on Commerce's
version of this bill strikes an appropriate balance between the goal of
promoting electronic commerce and the interests of copyright owners.
Let me specifically highlight two of the most important changes that
the Committee on Commerce added to the bill before us today:
First, the Committee on Commerce included a strong fair use provision
to ensure that consumers as well as libraries and institutions of
higher learning will be able to continue to exercise their historical
fair use rights. The bill before us today contains the substance of the
Committee on Commerce provision on fair use, and I am pleased to say
that major newspapers such as the New York Times and the Washington
Post have strongly endorsed the Committee on Commerce's language on
fair use.
Madam Speaker, I include those editorials following my statement in
the RECORD.
The editorials referred to are as follows:
[From the New York Times, July 24, 1998]
Protecting Digital Copyrights
Traditional copyright concepts that have served this nation
well for centuries should guide the debate on copyright in
the digital universe. As Congress fashions ways to protect
commercial interests in the digital realm, it must be careful
also to protect the larger public interest in broad access to
information.
Digital copyright legislation, required to institute two
international treaties that would protect movies, music and
other intellectual property from piracy, passed the Senate
and the House Judiciary Committee this spring. But
controversy continues to swirl around a provision in the
legislation that would make it a crime to circumvent
encryption used to control access to digital material or to
manufacture or sell devices that could be used to circumvent
protection measures.
Movie and music producers argue that making circumvention
illegal is the only way to prevent consumer theft of on-line
movies, recordings and other products. But libraries and
schools believe that the prohibition is so broad that it
could greatly limit access to electronic information that
copyright law would otherwise allow.
Existing law assures producers the right to profit from
their creative works. But the law does not allow a creator to
control who looks at the material or prevent the material
from being circulated or lent to others. It specifically
allows the ``fair use'' of copyrighted materials for
commentary, criticism, teaching, news reporting, scholarship
and research under certain circumstances without permission
from the copyright owner.
Thus a library can purchase a book, allow hundreds of
patrons to borrow it and let teachers make copies of material
in it for classroom use, all without infringing the
copyright. Preserving these user rights is important in the
digital world where copyright owners, with the right
technology, could limit or prevent access to information.
The content producers dismiss fears that the Internet could
become a strictly pay-for-use world as unrealistic, but
neither they nor Congress can predict how the Internet will
develop. That is why legislation needs to be flexible enough
to deal with rapid evolution in technology and electronic
commerce.
A prudent compromise approved by the House Commerce
Committee last week would delay the anti-circumvention rule
for two years while the Commerce Department and the Federal
patent and copyright officers study the effect of the
prohibition on users. The Commerce Secretary could waive the
rule for any class of works where technological shields were
impeding the lawful use of copyrighted matter. The situation
would be reviewed every two years. Both the content producers
and the libraries and schools are willing to accept this more
fluid approach. Congress should adopt this plan in the final
version of the digital copyright legislation.
____
[From The Washington Post, Aug. 4, 1998]
A Pay-Per-View World
Congress has been trying for most of this year to ratify
the international treaties that are supposed to bring
copyright law into the digital age. It's been a large and
complicated endeavor, requiring people to rethink such
fundamental aspects of intellectual property rights as what
constitutes ``copying'' in a digital environment (is it
copying a document just to read it on your computer? To print
it out to read later?) and when such copying represents a
copyright violation. But the major snag is none of these
weighty issues but, rather, a fierce face-off between
libraries and big-time copyright-holding interests over a
seemingly minor provision that would make it a crime to break
any technological locking device designed to prevent
unauthorized copying.
This debate over the ``anti-circumvention'' provision is
now the main item of disagreement between versions of the
copyright bill produced by the Judiciary and Commerce
committees. (The Senate passed copyright legislation in May.)
Those who expect movies, songs, software and even books to be
eventually delivered mainly over the Internet want to make
sure that this will not mean widespread unauthorized copying
and the subsequent collapse of any market for the work.
(Newspapers, as creators of copyrighted material, have an
interest here as well.) They picture every piece of
intellectual property being distributed with some kind of
``lock'' that would permit, say, just one viewing of a
downloaded movie. It's the disabling of this lock that would
be made a crime, except in specified circumstances.
There's room for doubt whether it makes sense to make the
lock-breaking a crime here rather than merely, as till now,
the actual copyright violation. But the real problem is more
pragmatic. This ``transition to a pay-per-view world,'' as
one enthusiastic movie distributor put it, works fine for the
entertainment industries and the commercial market. Where it
doesn't work is in libraries and other places where use of
books and research material is not pay-per-view but, till
now, free.
Libraries are worried that the ``fair use'' exemption that
allows limited use of copyrighted material without permission
for such purposes as comment, criticism, education or
research--though technically unchanged in the law--would
become sharply limited in practice if all material were
distributed with ``locks'' and libraries were prohibited from
``unlocking'' it. What happens, they ask if a chart of
environmental data that now can be photocopied for use in a
class were made available only on a CD from which printouts
can't be made? What if research journals are provided to
libraries on a pay-per-view basis that keeps independent
researchers from making photocopies for their own use?
Language in the Commerce bill sought to address this
problem by creating a mandatory review every two years of the
provision's effect on ``fair use'' in various contexts. On
the floor or in conference, these protections from a
permanent ``pay-per-review world'' ought to be maintained.
As the Chairman of the Committee which was principally responsible
for rewriting H.R. 2281 and eliminating the most harmful aspects of the
bill as proposed by the Administration, I want to share with my
colleagues the Committee's perspective on the scope of this legislation
and to note, where appropriate, the instances in which we sought to
clarify the bills as reported by the Committee on the Judiciary and as
approved by the Senate.
As noted at the outset, the Committee has been engaged in a wide-
ranging review of all the issues affecting the growth of electronic
commerce. Our Committee has a long-standing, well-established role in
assessing the impact of possible changes in law on the use and
availability of the products and services that have made our
information technology industry the envy of the world. We therefore
paid particular attention to the potential harmful impacts on
electronic commerce of the bill as reported by the Committee on the
Judiciary.
Today, the U.S. information technology industry is developing
exciting new products to enhance the lives of individuals throughout
the world, and our telecommunications industry is developing new means
of distributing information to these consumers in every part of the
[[Page H7094]]
globe. In this environment, the development of new laws and regulations
could well have a profound impact on the growth of electronic commerce.
In recognition of these developments and as part of the effort to
begin updating national laws for the digital era, delegates from over
150 countries (including the United States) convened in December 1996
to negotiate two separate treaties under the auspices of the World
Intellectual Property Organization: the Copyright Treaty and the
Performance and Phonograms Treaty. In July 1997, the Clinton
Administration submitted the treaties to the Senate for ratification
and submitted proposed implementing legislation to both the House and
the Senate. The Committee on the Judiciary largely reported out the
bill as proposed by the Administration.
In holding hearings, it became apparent to our Committee that this
and the Senate version of the legislation contained serious flaws. Not
surprisingly, these bills were opposed by significant private and
public sector interests, including libraries, institutions of higher
learning, consumer electronics and computer product manufacturers, and
others with a vital stake in the growth of electronic commerce. It also
became apparent that the main provisions of the treaties to be
implemented have little to do with copyright law. In fact, the ``anti-
circumvention'' provisions of the Administration's bill created
entirely new rights for content providers that are wholly divorced from
copyright law. These new provisions (and the accompanying penalty
provisions for violations of them) would be separate from, and
cumulative to, the claims available to copyright owners under the
Copyright Act.
In carrying out its responsibilities under the Constitution. Congress
has historically regulated the use of information--not the devices or
means by which information is delivered or used by information
consumers--and has ensured an appropriate balance between the interests
of copyright owners and information users. Section 106 of the Copyright
Act of 1976, for example, establishes certain rights copyright owners
have in their works, including limitations on the use of these works
without their authorization. Sections 107 through 121 of the Copyright
Act set forth the circumstances in which such uses are deemed lawful
even though unauthorized.
In general, all of these provisions are technology neutral. They do
not regulate commerce in information technology, i.e., products and
devices for transmitting, storing, and using information. Instead, they
prohibit certain actions and create exceptions to permit certain
conduct deemed to be in the greater public interest, all in a way that
balances the interests of copyright owners and users of copyrighted
works.
In writing its bill, the Committee sought to preserve that tradition.
We worked hard to reduce the risk that enactment of H.R. 2281 could
establish the legal framework that would inexorably create a ``pay-per-
use'' society. In short, the Committee endeavored to specify, with as
much clarity as possible, how the anti-circumvention right in
particular would be qualified to maintain balance between the interests
of content creators and information users.
The Committee considered it particularly important to ensure that the
concept of fair use would remain firmly established in the law. Section
1201(a)(1) is one of the most important provisions of this legislation,
and one that must be included in any version of this bill eventually
sent to the President for signature. It was crafted by the Commerce
Committee to protect ``fair use'' and other users of information now
lawful under the Copyright Act. Let us make no mistake about the scope
of what we are doing here today in adopting H.R. 2281, about the
tremendously powerful new right to control access to information that
we are granting to information owners for the very first time.
If left unqualified, this new right, as the Commerce Committee heard
in testimony from the public and private sectors alike, could well
prove to be the legal foundation for a society in which information
becomes available only on a ``pay-per-use'' basis. That's why this bill
assures that institutions like schools and libraries, and the public,
will have an opportunity in a credible and permanent process to make
the case that the new right we've adopted is interfering with fair use
and other rights now enjoyed by information users under current law.
Moreover, the Commerce Committee's report, I note for the record makes
clear that the showing that must be made in this process is not
intended to be unduly burdensome for either institutions or the public.
Indeed, the Committee took pains to make clear that evidence of loss of
access to a ``particular class of works''--intended to be gauged
narrowly--would result in relief from the prohibition otherwise imposed
on access to information by this legislation.
That's also why--in express recognition of the importance of the
Commerce Committee's work--today's Washington Post carries an editorial
urging that ``on the floor, or in conference, these protections from a
permanent `pay-per-view world ought to be maintained.' '' Copyright law
is not just about protecting information. It's just as much about
affording reasonable access to it as a means of keeping our democracy
healthy and doing what the Constitution says copyright law is all
about: promoting ``Progress in Science and the useful Arts.'' If this
bill ceases to strike that balance, it will no longer deserve Congress'
or the public's support.
Section 1201(a)(2) makes it illegal to manufacture, import, offer to
the public, provide, or otherwise traffic in any technology, product,
service, device, component, or part thereof that is primarily designed
or produced for the purpose of circumventing a technological measure
that effectively controls access to certain works; has only limited
commercially significant purposes or uses other than to circumvent such
a measure; or is marketed for use in circumventing such a measure.
Section 1201(b)(1) similarly makes it illegal to manufacture, import,
offer to the public, provide, or otherwise traffic in any technology,
product, service, device, component, or part thereof that is primarily
designed or produced for the purpose of circumventing a protection
measure that protects certain rights of copyright owners under title
17, United States Code; has only limited commercially significant
purposes or uses other than to circumvent such a measure; or is
marketed for use in circumventing such a measure.
In our report, the Committee stressed that section 1201(a)(2) is
aimed fundamentally at outlaying so-called ``black boxes'' that are
expressly intended to facilitate circumvention of protection measures
for purposes of gaining access to a work. This provision is not aimed
at products that are capable of commercially significant noninfringing
uses, such as the consumer electronics, telecommunications, and
computer products--including videocassette recorders,
telecommunications switches, personal computers, and servers--used by
businesses and consumers everyday for perfectly legitimate purposes.
Moreover, as section 1201(c)(3) makes clear, such a device does not
need to be designed or assembled, or parts or components for inclusion
in a device be designed, selected, or assembled, so as affirmatively to
accommodate or respond to any particular technological measure.
Section 2101(a)(3) of H.R. 2281 defines certain terms used throughout
Section 1201(a). As we made clear in our report, the measures that
would be deemed to ``effectively control access to a work'' would be
those based on encryption, scrambling, authentication, or some other
measure which requires the use of a ``key'' provided by a copyright
owner to gain access to a work.
Section 2101(b)(1) of H.R. 2281 makes it illegal to manufacture,
import, offer to the public, provide, or otherwise traffic in any
technology, product, service, device, component, or part thereof that
is primarily designed or produced for the purpose of circumventing a
protection measure that protects certain rights of copyright owners
under title 17, United States Code; has only limited commercially
significant purposes or uses other than to circumvent such a measure;
or is marketed for use in circumventing such a measure. The Committee
believes it is very important to emphasize that this section, like
section 1201(a)(2), is aimed fundamentally at outlawing so-called
``black boxes'' that are expressly intended to facilitate circumvention
of protection measures. Thus, this section similarly would not outlaw
the manufacturing, importing, or distributing of standard videocassette
recorders and computer products.
Section 1201(b)(2) of H.R. 2281 defines important phrases, including
when a protection measure ``effectively protects a right of a copyright
owner under title 17, United States Code.'' In our view, the measures
that would be deemed to ``effectively'' protect such rights would be
those based on encryption, scrambling, authentication, or some other
measure which requires the use of a ``key'' to copy a work.
With respect to the effectiveness of the measures covered by the
legislation, the Committee stressed in its report that those measures
that cause noticeable and recurring adverse effects on the authorized
display or performance of works should not be deemed to be effective.
Given our keen interest in the development of new products, in
particular digital television monitors, the Committee is particularly
concerned that the introduction of such measures not frustrate consumer
expectations and that this legislation not be interpreted to in any way
limit the authority of manufacturers and retailers to address the
legitimate concerns of their customers.
Based on prior experience, the Committee on Commerce was concerned
that manufacturers, retailers, and consumers may be adversely affected
by the introduction of some technological measures and systems for
preserving copyright management information. In fact, the Committee
learned as part of its review of H.R. 2281 that, as initially proposed,
a
[[Page H7095]]
proprietary copy protection scheme that is today widely used to protect
analog motion pictures could have caused significant view-ability
problems, including noticeable artifacts, with certain television sets
until it was modified with the cooperation of the consumer electronics
industry.
As advances in technology occur, consumers will enjoy additional
benefits if devices are able to interact and share information.
Achieving interoperability in the consumer electronics environment will
be a critical factor in the growth of electronic commerce. In our view,
manufacturers, consumers, retailers, and servicers should not be
prevented from correcting an interoperability problem resulting from a
protection measure causing one or more devices in the home or in a
business to fail to interoperate with other technologies.
Under the bill under consideration today, nothing would make it
illegal for a manufacturer of a product or device (to which section
1201 would otherwise apply) to design or modify the product or device
solely to the extent necessary to mitigate a frequently occurring and
noticeable adverse effect on the authorized performance or display of a
work that is caused by a protection measure in the ordinary course of
its design and operation. Similarly, recognizing that a technological
measure may cause a problem with a particular device, or combination of
devices, used by a consumer, it is our view that nothing in the bill
should be interpreted to make it illegal for a retailer or individual
consumer to modify a product or device solely to the extent necessary
to mitigate a noticeable adverse effect on the authorized performance
or display of a work that is communicated to or received by that
particular product or device if that adverse effect is caused by a
protection measure in the ordinary course of its design and operation.
I might add that nothing in section 1202 makes it illegal for such a
person to design or modify a product or device solely to the extent
necessary to mitigate a frequently occurring and noticeable adverse
effect on the authorized performance or display of a work that is
caused by the use of copyright management information.
I wish to stress that I and other Members of the Committee on
Commerce believe that the affected industries should be able to work
together to avoid such problems. We know that multi-industry efforts to
develop copy control technologies that are both effective and avoid
such noticeable and recurring adverse effects have been underway over
the past two years. We strongly encourage the continuation of those
efforts, which should offer substantial benefits to copyright owners in
whose interest it is to achieve the introduction of effective
protection (and copyright management information) measures that do not
interfere with the normal operations of affected products. We look
forward to working with interested parties to the extent additional
legislation is required to implement such technologies or to avoid
their circumvention.
As the Chairman of the Committee that eliminated the inherent
ambiguity in the Senate's version of this legislation, I also want to
put section 1201(c)(3) in context. It provides that nothing in section
1201 requires that the design of, or design and selection of parts and
components for, a consumer electronics, telecommunications, or computer
product provide for a response to any particular protection measure. We
specifically modified the Senate version of this provision because of
our strong belief that product manufacturers should remain free to
design and produce consumer electronics, telecommunications, and
computing products without the threat of incurring liability for their
design decisions. Imposing design requirements on product and component
manufacturers would have a dampening effect on innovation, on the
research and development of new products, and hence on the growth of
electronic commerce.
As the hearing record demonstrates, there is a fundamental difference
between a device that does not respond to a protection measure and one
that affirmatively removes such a measure. Section 1202(c)(3) is
intended to make clear that nothing in section 1201 requires that the
design of, or design and selection of parts and components for, a
consumer electronics, telecommunications, or computing product provide
for a response to any particular technological measure that might be
used to control access to or the copying of a work protected under
title 17, United States Code. Of course, this provision is not intended
to create a loophole to remove from the proscriptions of section 1201
devices, or components or parts thereof, that circumvent by, for
example, affirmatively decrypting an encrypted work or descrambling a
scrambled work.
Mr. BLILEY. Madam Speaker, I reserve the balance of my time.
Mr. COBLE. Madam Speaker, I yield 3\1/2\ minutes to the gentleman
from Virginia (Mr. Goodlatte) a member of the subcommittee and the full
committee.
(Mr. GOODLATTE asked and was given permission to revise and extend
his remarks.)
Mr. GOODLATTE. Madam Speaker, I rise today in support of H.R. 2281,
the World Intellectual Property Organization Copyright Treaties
Implementation Act. I would like to thank the gentleman from North
Carolina (Mr. Coble) and the gentleman from Illinois (Mr. Hyde), as
well as the gentleman from Virginia (Mr. Bliley) and the gentleman from
Massachusetts (Mr. Frank) for their leadership on this issue.
Additionally, I would like to thank the gentleman from North Carolina
(Mr. Coble) for asking me to lead the negotiations between the various
parties on the issue of on-line service provider liability for
copyright infringement which is included in this important bill. Madam
Speaker, the issue of liability for on-line copyright infringement,
especially where it involves third parties, is difficult and complex.
For me personally this issue is not a new one. During the 104th
Congress then-Chairman Carlos Moorhead asked me to lead negotiations
between the parties. Although I held numerous meetings involving
members of the content community and members of the service provider
community, unfortunately we were not able to resolve this issue.
At the beginning of the 105th Congress the gentleman from North
Carolina (Mr. Coble) asked me to again lead the negotiations between
the parties on this issue. After a great deal of meetings and
negotiation sessions, the copyright community and the service provider
community were able to successfully reach agreement. That agreement is
included in the bill we are considering today. No one is happier,
except maybe those in each community who spent countless hours and a
great deal of effort trying to reach agreement, than I am with the
agreement contained in this bill.
Madam Speaker, this is a critical issue to the development of the
Internet, and I believe that both sides in this debate need each other.
If America's creators do not believe that their works will be protected
when they put them on-line, then the Internet will lack the creative
content it needs to reach its true potential; and if America's service
providers are subject to litigation for the acts of third parties at
the drop of a hat, they will lack the incentive to provide quick and
sufficient access to the Internet.
The provisions of H.R. 2281 will allow the Internet to flourish and I
believe will prove to be a win-win not only for both sides, but for
consumers and Internet users throughout the Nation.
I would also like to discuss the importance of the World Intellectual
Property Organization treaties and this accompanying implementing
legislation which are critical to protecting U.S. copyrights overseas.
The United States is the world leader in intellectual property. We
export billions of dollars worth of creative works every year in the
form of software books, tapes, videotapes and records. Our ability to
create so many quality products has become a bulwark of our national
economy, and it is vital that copyright protection for these products
not stop at our borders. International protection of U.S. copyrights
will be of tremendous benefit to our economy, but we need to ratify the
WIPO treaties for this to happen.
I would like to state for the record my understanding that sections
102(a)(2) and 102(b)(1) of this bill are not intended to address
computer system security, such as devices used to crack into computer
security systems such as firewalls or discover log-on passwords that
protect an entire system. The ban contained in these provisions is
intended to cover circumvention devices aimed at technological
protection measures that protect particular works covered under Title
17 such as movies, songs or computer programs. Unauthorized hacking
into computer programs is already covered by other laws.
This bill is critical not only because it will allow the Internet to
flourish but also because it ensures that America will remain the world
leader in the development of intellectual property. I urge each of my
colleagues to support this legislation.
Mr. FRANK of Massachusetts. Madam Speaker, I yield 4 minutes to the
gentleman from Virginia (Mr. Boucher).
(Mr. BOUCHER asked and was given permission to revise and extend his
remarks.)
[[Page H7096]]
Mr. BOUCHER. Madam Speaker, I thank the gentleman from Massachusetts
(Mr. Frank) for yielding this time to me, and I am pleased to rise
today in support of the passage of H.R. 2281, which will extend new
protections against the theft of their works to copyright owners.
Madam Speaker, new protections are needed due to the ease with which
flawless copies of copyrighted materials can both be made and
transmitted in the digital network environment. Essential, however, to
the creation of new guarantees for copyright owners is the retention of
the traditional rights of the users of intellectual property. A balance
has always existed in our law between these conflicting interests, and
the major challenge in the writing of this legislation is to assure
that no fundamental altering of that delicate balance takes place.
Another challenge is to ensure that in the effort to eliminate
devices that are designed and produced to make illegal copies of
copyrighted materials, that legitimate consumer electronics products
are not also placed in a category of legal uncertainty.
Today I want to offer congratulations primarily to the Members of the
House Committee on Commerce who have devoted long hours in the effort
to assure that these challenges are met. Specifically, the Committee on
Commerce has added provisions that protect personal privacy by clearly
permitting personal computer owners to disable cookies that are placed
on their disks by others; that allow the encryption research that will
lead to a new generation of trusted and secure systems; that give
equipment manufacturers the certainty that their consumer electronics
products need not affirmatively accommodate all technological
protection measures; and that creative procedure for assuring the
continuation of the fair use rights of the American public, a procedure
that will prevent material that is generally available today under fair
use being locked away in a pay-per-use regime in future years.
{time} 1400
Report language also specifies that the technological protection
measure circumvention restrictions will not apply when manufacturers,
retailers and technicians need to make adjustments to devices to ensure
that their performance is not degraded as a consequence of the
installation of a technological protection measure. These changes,
taken together, significantly improve the original legislation.
The gentleman from Virginia (Chairman Bliley), the gentleman from
Michigan (Mr. Dingell), the gentleman from Wisconsin (Mr. Klug), the
gentleman from Florida (Mr. Stearns) and the gentleman from
Massachusetts (Mr. Markey), among others, deserve thanks for their
successful efforts to create new copyright protections, while ensuring
that traditional user rights are not undermined.
The Committee on Commerce has, in the manner for which it is known,
mastered the intricate details of this complex subject and has produced
a balanced result. I want to offer my congratulations to all who have
been involved in that outstanding effort.
It is my pleasure to urge passage of H.R. 2281.
Madam Speaker, I will insert in the record correspondence from the
subcommittee chairman, the gentleman from North Carolina (Mr. Coble),
to the gentleman from California (Mr. Campbell) and myself, which
further defines the terminology that is used in the statute.
House of Representatives,
Committee on the Judiciary,
Washington, DC, June 16, 1998.
Hon. Tom Campbell,
U.S. Representative for the 15th District of California,
Washington, DC.
Hon. Rick Boucher,
U.S. Representative for the 9th District of Virginia,
Washington, DC.
Dear Tom and Rick: Thank you for visiting with me in my
office recently regarding H.R. 2281, the ``WIPO Copyright
Treaties Implementation Act.'' I appreciate the concerns you
expressed with respect to H.R. 2281 as it was reported from
the House Committee on the Judiciary.
I expressed to you that I would consider your thoughts and
respond to you in detail, and am pleased to do so in this
letter.
I believe that many of your concerns, which are enumerated
in your substitute bill, H.R. 3048, have been addressed
already in a reasonable manner in amendments to the bill
adopted by the Subcommittee on Courts and Intellectual
Property and the Committee on the Judiciary in the House and
by the Committee on the Judiciary and on the floor in the
Senate (regarding the Senate companion bill, S. 2037). Others
have been addressed in legislative history in House Report
105-551 (Part I) which accompanies the bill, as well as in
Senate Report 105-190, which accompanies the Senate companion
bill. Still others may be addressed as the House Committee on
Commerce exercises its sequential jurisdiction over limited
portions of the bill and as I work with interested members on
developing a manager's amendment to be considered by the
whole House. I anticipate including many of the amendments
made by the Senate in the manager's amendment, along with
other provisions. I also anticipate that a conference will be
necessary to reconcile the House and Senate versions of the
bills.
While I am unable to support the specific provisions of
H.R. 3048, for reasons I will explain in this letter, I am
willing to work with you in the coming weeks to address
additional concerns regarding the impact of this legislation
on the application of the ``fair use'' doctrine in the
digital environment and on the consumer electronics industry.
I wish to stress, however, that I believe the bill, as
amended by the House and Senate thus far, and explained by
both the House and the Senate Judiciary Committee reports,
already addresses these issues in several constructive ways.
I believe it is important, in order to recognize properly
the efforts undertaken by the Congress and the Administration
to address the concerns of the consumer electronics and fair
use communities, to review the history of H.R. 2281 and to
evaluate all of the provisions that have been either added to
or deleted from the bill since its development leading to
introduction in this Congress. As I am sure you will
appreciate, I am sensitive to your concerns and have worked
diligently with members and all parties involved to create a
balanced and fair proposal that will result in the enactment
of legislation this Congress.
In February, 1993, the Administration formed the
Information Infrastructure Task Force to implement
Administration policies regarding the emergence of the
Internet and other digital technologies. This task force
formed a Working Group on Intellectual Property Rights to
investigate and report on the effect of this new technology
on copyright and other rights and to recommend any changes in
law or policy. The working group held a public hearing in
November, 1993, at which 30 witnesses testified. These
witnesses represented the views of copyright owners,
libraries and archives, educators, and other interested
parties. The working group also solicited written comments
and received over 70 statements during a public comment
period. Based on oral and written testimony, the working
group released a ``Green Paper'' on July 7, 1994. After
releasing the Green Paper, the working group again heard
testimony from the public through four days of hearings held
around the country. More than 1,500 pages of written
testimony were filed during a four-month comment period by
more than 150 individuals and organizations.
In March, 1995, then-Chairman Carlos Moorhead solicited
informal comments from parties who had submitted testimony
regarding the Green Paper, including library and university
groups, and computer and electronics group, in order to work
effectively with the Administration on jointly developing any
proposed updates to U.S. copyright law that might be
necessary in light of emerging technologies.
In summer, 1995, the working group released a ``White
Paper'' based on the oral and written testimony it has
received after releasing the Green Paper. The White Paper
contained legislative recommendations which were developed
from public comment in conjunction with consultations between
the House and Senate Judiciary Committees, the Copyright
Office and the Administration.
In September, 1995, Chairman Moorhead in the House and
Chairman Hatch in the Senate introduced legislation which
embodied the recommendations contained in the White Paper and
held a joint hearing on November 15, 1995. Testimony was
received from the Administration, the World Intellectual
Property Organization and the Copyright Office. The House
Subcommittee on Courts and Intellectual Property held two
days of further hearings in February, 1996. Testimony was
received from copyright owners, libraries and archives,
educators and other interested parties. in May, 1996, the
Senate Judiciary Committee held a further hearing.
Testimony was received from copyright owners, libraries
and other interested parties. These hearings were
supplemented with negotiations in both bodies led by
Representative Goodlatte (as authorized by Chairman
Moorhead) in the House and by Chairman Hatch in the
Senate. Further negotiations were held by the
Administration in late summer and fall of 1996.
During consideration of the ``NII Copyright Protection Act
of 1995,'' Chairman Moorhead requested that Mr. Boucher and
Mr. Berman of California lead negotiations between interested
parties regarding the issue of circumvention. While these
negotiations were helpful in streamlining and clarifying the
issues to be discussed, they ultimately did not result in an
agreement.
It is important to note that shortly after its
establishment, the Administration task force's working group
convened, as part of its consideration, a Conference on Fair
Use (CONFU) to explore the effect of digital technologies on
the doctrine of fair use, and to
[[Page H7097]]
develop guidelines for uses of works by libraries and
educators. Because of the complexities involved in developing
broad-based policies for the adaptation of the fair use
doctrine to the digital environment, and due to much
disagreement among the participants (including within the
library and educational communities), CONFU did not issue its
full report until nearly two years after it was convened. An
Interim Report was released by CONFU in September 1997 on the
first phase of its work. No consensus was reached on how to
apply the fair use doctrine to the digital age. In fact, the
CONFU working group on interlibrary loan and document
delivery concluded in a report to its Chair that it is
``premature to draft guidelines for digital transmission of
digital documents.'' The work of CONFU continues today and a
final report should be released soon with no agreed
conclusions. As you can see, developing sweeping legislation,
rather than relying on court-based ``case or controversy''
applications of the doctrine, is exceedingly difficult to do.
Since before the debate began with the establishment of a
task force in the United States in 1993, the international
community had also been considering what updates should be
made to the Berne Convention on Artistic and Literary Works
in order to provide adequate and balanced protection to
copyrighted works in the digital age. This culminated in a
Diplomatic Conference hosted by the World Intellectual
Property Organization at which over 150 countries agreed on
changes needed to accomplish this goal.
This goal was not reached easily, however, and many of the
issues being debated by the Administration and the Congress
in the United States concerning fair use and circumvention
were aired at the Diplomatic Conference, with significant
changes made to accommodate fair use concerns and the effect
on the consumer electronic industries. Representatives of
both groups participated in the Conference and aggressively
sought to maintain proper limitations on copyright. They
succeeded. For example, language was added to ensure that
exceptions such as fair use could be extended into the
digital environment. The treaty also originally contained
very specific language regarding obligations to outlaw
circumvention. It was changed to state that all member
countries ``shall provide adequate legal protection and
effective legal remedies against the circumvention of
effective technological measures that are used by authors in
connection with the exercise of their rights under this
Treaty.'' This left to each country the development of
domestic legislation to accomplish this goal.
After the United States signed the WIPO Treaties, the
Administration again began negotiations led by the Department
of Commerce and the Patent and Trademark Office, in
consultiation with the Copyright Office and the Congress, to
develop domestic implementing legislation for the treaties.
It built upon the efforts already accomplished by the release
of the Green Paper and the White Paper and all of the
testimony and comments heard as part of that process, the
House and Senate bills introduced in the 104th Congress and
all of the hearing testimony and negotiations associated with
them, and the negotiations held by the Administration leading
up to and during the Diplomatic Conference. Again, comments
were solicited from fair use and consumer electronics groups.
In the summer of 1997, the Administration submitted to the
Congress draft legislation to implement the treaties. In
July, 1997, Chairman Hatch and I introduced the current
pending legislation in each house. Importantly, the
legislation was tailored to match the treaty language by
establishing legal protection and remedies not against any
technological measures whatsoever, but only ``against the
circumvention of effective technological measures that are
used by authors in connection with the exercise of their
rights.''
The fair use and consumer electronics groups succeeded,
just as they had at the Diplomatic Conference, in assuring in
the introduced version of the bills the maintenance of proper
limitations on copyright. The Administration had considered
originally banning both the manufacture and use of devices
which circumvent effective technological measures and had no
specific provision on fair use, since Section 107 of the
Copyright Act would, of course, continue to exist after
enactment of the legislation. The word ``use'' was eliminated
in the device provision and a specific provision relating to
the adoption of the fair use doctrine in the digital
environment was added.
As it was introduced, H.R. 2281 contained two important
safeguards for fair use. First, the bill dealt separately
with technological measures that prevent access and
technological measures that prevent copying. As to the
latter, the bill contained no prohibition on the act of
circumbention itself, leaving users free to circumvent such
measures in order to make fair use copies. Second, the
savings clause in subsection 1201(d) ensures that defenses to
copyright protection, including fair use, are unaffected by
the prohibitions on circumvention. For example, circumvention
of an effective technological measure that controls access to
a work does not preclude, or affect in any way, a defense of
fair use for copying the work. Moreover, the bill as
introduced did not expand exclusive rights or diminish
exceptions and limitations on exclusive rights.
Again, a series of legislative hearings were held by the
House and Senate Judiciary Committees at which testimony was
again heard from copyright owners, libraries and archives,
educators, consumer electronics groups and other interested
parties. In February, 1998, almost five years to the date of
the establishment of the Administration's working group,
taking into account all of the concessions and negotiations
leading up to it, the first markup was finally held in
Congress by the Subcommittee on Courts and Intellectual
Property on this important legislation. As is evident by the
timetable involved in the development of this legislation,
and considering the number of hearings, negotiations and
conferences dedicated to its contents, this bill certainly
has not been placed on any ``fast-track.''
In the course of Subcommittee and Committee consideration
of the bill in the House, the gentleman from Massachusetts,
the Ranking Democratic member of the Subcommittee, Mr. Frank,
and I, proposed a number of improvements to the bill, which
were adopted by the Committee, that benefit libraries and
nonprofit educational institutions. We introduced a special
``shopping privilege'' exemption that permits nonprofit
libraries and archives to circumvent effective technological
measures in order to decide whether they wish to acquire
lawfully a copy of the work. We added a provision that
requires a court to remit monetary damages for innocent
violations of sections 1201 or 1202. And we eliminated any
possibility that nonprofit libraries and archives or
educational institutions can be held criminally liable for
any violation of sections 1201 or 1202, even when such
violations are willful.
These changes add protection to language already included
in the bill which safeguard manufacturers of legitimate
consumer electronic devices. Unlike the ``NII Copyright
Protection Act of 1995,'' which would have prohibited devices
``the primary purpose or effect of which is to circumvent,''
H.R. 2281 sets out three narrow bases for prohibiting
devices. A device is prohibited under section 1201 only if it
is primarily designed or produced to circumvent, has limited
commercially significant use other than to circumvent, or is
marketed specifically for use in circumventing. This
formulation means that under H.R. 2281, it is not enough for
the primary effect of the device to be circumvention. It
therefore excludes legitimate multi-purpose devices from the
prohibition of section 1201. Devices such as VCRs, and
personal computers do not fall within any of these three
categories (unless they are, in reality, black boxes
masquerading as VCRs or PCs).
In addition, H.R. 2281 as introduced does not require any
manufacturer of a consumer electronic device to accommodate
existing or future technological protection measures.
``Circumvention,'' as defined in the bill, requires an
affirmative step of ``avoiding, bypassing, removing,
deactivating, or otherwise impairing a technological
protection measure.'' Language added in the Senate, referred
to below, clarified this even further.
In addition to all of the foregoing, there are a number of
amendments that were made in the Senate bill that will be
included in the manager's amendment to H.R. 2281. These
include:
An expansion of the exemptions of nonprofit libraries and
archives in 17 U.S.C. Sec. 108 to cover the making of digital
copies without authorization, for purposes of preservation,
security or replacement of damaged, lost or stolen copies;
An expansion of section 108 to cover the making of digital
copies without authorization in order to replace copies in
the collection that are in an obsolete format;
A provision directing the Register of Copyrights to make
recommendations as to any statutory changes needed to apply
the limitations on liability of online service providers to
nonprofit educational institutions that act in the capacity
of service providers;
A provision directing the Register of Copyrights to consult
with nonprofit libraries and nonprofit educational
institutions and submit recommendations on how to promote
distance education through digital technologies, including
any appropriate statutory changes;
A savings provision stating that nothing in section 1201
enlarges or diminishes vicarious or contributory liability
for copyright infringement in connection with any technology,
product, service, device, component or part thereof;
A provision that states explicitly that nothing in section
1201 requires accommodation of present or future
technological protection measures;
A provision to ensure that the prohibition on circumvention
does not limit the ability to decompile computer programs to
the extent permitted currently under the doctrine of fair
use; and
A provision ensuring that technology will be available to
enable parents to prevent children's access to indecent
material on the Internet.
I believe that these are constructive provisions that
precisely and carefully address specific concerns you have
raised in H.R. 3048. In order to assure that fair use applies
in the digital environment, in addition to the above changes,
I have also agreed to include in the manager's amendment an
amendment to Section 107 of the Copyright Act to make it
continue to be technology-neutral with respect to means of
exploitation.
It may be helpful, in addition to discussing what is
contained in H.R. 2281 and the Senate companion, and what
will be included in the
[[Page H7098]]
manager's amendment, to raise directly with you some of the
identifiable problems I see associated with H.R. 3048 as
introduced.
In my opinion, this extension of the first sale doctrine is
antithetical to the policies the doctrine was intended to
further. The alienability of tangible property is not at
issue, since no tangible property changes hands in a
transmission. Further, it does not address specifically the
ability to control the after-market for resales of the same
copy of a work, since in this case distribution of a work by
digital transmission necessarily requires a reproduction--it
is not the same copy. The bill's answer to this quandary--
that the original copy must be destroyed--is unenforceable
and certainly not a substitute for disposition of a tangible
copy. Destruction involves an affirmative act, generally in
the privacy of a home, that is difficult to police and would
involve significant invasions of privacy if it were policed
effectively.
Further, regardless of whether the original copy is
destroyed, the new copy would be free of contractual or other
controls placed on the original copy by the copyright owner.
It is also likely that this provision would have a much
greater impact on an owner's primary market for new copies of
a work than the current first sale doctrine has on the
primary market for physical copies. Unlike used books,
digital information is not subject to wear and tear. The
``used'' copy is just as desirable as the new one because
they are indistinguishable. For this reason, Congress has
curtailed the first sale doctrine as it applies to the rental
of sound recordings and software in the past, to prevent
posing so great a burden on a copyright owner so as to
undermine the incentive to create works which is the driving
force behind the Copyright Act.
H.R. 3048 would also broaden Section 110(2) of the
Copyright Act so that the performance, display, or
distribution of any work (rather than just the performance of
a nondramatic literary or musical work and the display of any
work) through digital transmission (rather than just through
audio broadcasts) would be allowed without the permission of
the copyright holder, as long as it is received by students,
or by government employees as part of their duties. This
broad expansion of the distance learning provisions currently
codified in the Copyright Act would permit the transmission
of a wide variety of Internet-based or other remote-access
digital transmission formats for distance education and
raises serious questions about safeguards to prevent such
transmissions from unauthorized access. In other words, it
may facilitate piracy.
Both CONFU and the Senate have discussed the intricacies
involved in safeguarding transmissions used for distance
learning purposes and have agreed that it is premature to
enact specific legislation at this time. As discussed
earlier, the Senate has included a provision in its companion
bill, which I plan to include in the House manager's
amendment, that will provide for a study with legislative
recommendations on this issue, within a six-month time frame.
This study will be better able to address the complex
problems I have identified.
Section 7 of H.R. 3048 would amend Section 301(a) of the
Copyright Act to preempt enforcement of certain license terms
under state law. Specifically, it would preempt any state
statute or common law that would enforce a ``non-negotiable
license term'' governing a ``work distributed to the public''
if such term limited the copying of material that is not
subject to copyright protection or if it restricted the
limitations to copyright contained in the Copyright Act. In
effect, it would prohibit standard form agreements, used in
the context of copies distributed to the public, that purport
to govern use of noncopyrightable subject matter or limit
certain exceptions and limitations, such as fair use.
The use of standard form licensing agreements has become
prevalent in the software and information industries, as
owners seek to protect their investment in these products
against the risk of unauthorized copying. Section 7 would
result in destroying the ability of the producer of a work to
create specific licenses tailored to the circumstances of the
marketplace, or, in the case of factual databases and other
valuable but noncopyrightable works, destroy the most
significant form of protection currently available. This
could result, for example, in the loss of crucial revenues to
stock and commodity exchanges who rely on such contracts to
disseminate information.
Attempts to introduce language similar to Section 7 of H.R.
3048 into Article 2B of the Uniform Commercial Code (UCC)
have been rejected repeatedly by the UCC Article 2B Drafting
Committee on several occasions. The National Conference of
Commissioners on Uniform State Laws also rejected a proposal
similar to the one you propose as has the American Law
Institute. I agree with these bodies that restricting the
freedom to contract in the manner proposed in H.R. 3048 would
have a negative effect on the availability of information to
consumers.
H.R. 3048 also proposes several changes to Section 108 of
the Copyright Act regarding archiving and library activities.
As you are aware, library groups and copyright owners have
come to an agreement regarding changes in this section to
update the Act for the digital environment and those changes
were incorporated by the Senate in the companion bill. I will
include those same provisions in the manager's amendment in
the House.
Finally, the new Section 1201 contained in H.R. 3048 would
not prohibit manufacturing or trafficking in devices
purposely created to gain unauthorized access to copyrighted
works, and insofar as it prohibits conduct, would permit
circumvention in the fist instance for purposes of fair use.
In other words, H.R. 3048, as I discussed earlier, would
grant to users a right never before allowed--free access to
copyrighted works in order to make a fair use. I believe that
is unwise policy and tilts the balance away from the
protection of works in a free market economy toward the free
provision of works to anyone claiming to make a fair use.
This would, I believe, ultimately lead to much more
litigation against libraries and others who lawfully engage
in fair use and ultimately would diminish the number of works
made available over new media.
While it would be impossible to communicate to you all of
the problems contained in the exact language of H.R. 3048, I
wanted to, in truncated form, reveal my serious concerns with
the bill. In its current form, for the above reasons and
others, I would oppose it as a substitute to H.R. 2281, as
amended. I remain dedicated, however, to working with you, as
I have in the past, to address your concerns in a reasonable
manner that will result successfully in changes to our
nation's copyright law that will benefit both owners and
users of works.
I truly believe that we are at the beginning of a long
process of addressing adaptation to the digital environment.
It is not possible at this point to enact legislation that
will contemplate all uses of a work and, as CONFU members
aptly point out, many will have to be addressed as we move
forward. I am committed, however, to preserving fair use in
the digital age and thank you for your valuable and
continuing insight and interest.
Sincerely,
Howard Coble,
Chairman, Subcommittee on Courts
and Intellectual Property.
Mr. BLILEY. Madam Speaker, I yield one minute to the gentleman from
Colorado (Mr. Dan Schaefer).
(Mr. DAN SCHAEFER of Colorado asked and was given permission to
revise and extend his remarks.)
Mr. DAN SCHAEFER of Colorado. Madam Speaker, I thank the gentleman
for yielding me time.
Madam Speaker, the webcasting is a new use of the digital works this
bill deals with, and even most recent copyright amendments in 1995 do
not really address it clearly. Under current law it is difficult for
webcasters and record companies to know their rights and their
responsibilities for negotiating new licenses. This provision makes it
clear what each party must do and sets a statutory licensing program to
make it as easy as possible to comply with.
I want to thank the gentleman from Washington (Mr. White) and the
gentleman from North Carolina (Mr. Coble) for working with them to make
sure this was all included, and I strictly urge my colleagues to
carefully respect and preserve the delicate compromise that we have
worked so hard to agree on as we move through this legislative process
in the conference committee.
Mr. COBLE. Madam Speaker, I yield 1\1/2\ minutes to the gentleman
from Florida (Mr. Foley), the chairman of the House Entertainment Task
Force.
Mr. FOLEY. Madam Speaker, I thank the chairman and also all the
Members who have participated in this very, very important debate, and
particularly the leadership, the gentleman from Georgia (Mr. Gingrich),
the gentleman from Texas (Mr. Armey), and others who have helped bring
this platter to the floor today for full and fair debate.
Businesses and industries that depend on copyright protection,
including publishing, music and recording, film and video and computer
software companies, are among the fastest growing segment of our
society. These creative industries contribute nearly $280 billion to
the gross domestic product yearly and provide jobs for some 3.5 million
Americans. Moreover, they are among our biggest export earners,
accounting for some $60 billion in foreign sales.
What has been plaguing this huge and important industry is piracy,
the outright theft of copyrighted works. Not piracy on the high seas,
it is today's version, piracy on the Internet. American companies are
losing nearly $20 billion yearly because of the international piracy of
these copyrighted on-line works, and that is what this bill helps to
stop.
It has been a long process which has been carefully and thoughtfully
negotiated. What we now have is a balanced
[[Page H7099]]
measure that protects both the interests of the users and the
consumers, and the property rights of the creators.
As chairman of the Entertainment Industry Task Force, I know how
important the enactment of this bill is to one of America's most
promising industries. I would like it thank the chairman of the
Committee on the Judiciary, the chairman of the Committee on Commerce,
the gentleman from North Carolina (Mr. Coble) and others who have
worked tirelessly on this effort, as well as Members of the other side
of the aisle, the gentleman from Massachusetts (Mr. Frank) and others,
who have taken into consideration all the concerns of both the users
and end users of the product, as well as those who provide the
intellectual content, if you will, to striking what is a fair balance
for Americans, a fair balance for consumers, but, more importantly,
will allow the very appropriate and important works to be put on the
Internet for future generations to come.
Mr. FRANK of Massachusetts. Madam Speaker, I yield three minutes to
the gentleman from California (Mr. Berman).
Mr. BERMAN. Madam Speaker, this day has been a long time coming.
Going back nine years as the technological capacity to make
unauthorized copies of copyrights works was rapidly expanding, some of
us anticipated the need to enact legislation to protect technological
measures used by copyright holders to protect their works.
Last Congress, our former colleagues, Carlos Moorehead and Pat
Schroeder, laid further groundwork for today's WIPO bill with their
efforts to enact national information infrastructure legislation. Then
in December 1996, the U.S. victory that produced two new international
treaties, made the enactment of implementing legislation an urgent
task.
Today, under the leadership of the gentleman from North Carolina (Mr.
Coble) and the gentleman from Massachusetts (Mr. Frank), the gentleman
from Illinois (Mr. Hyde) and the gentleman from Michigan (Mr. Conyers),
our efforts have come top fruition.
Passage of this bill is essential to implementation of the treaties
around the world. Our leadership is necessary in order to gain passage
of the treaties in other countries where the standards for intellectual
property is much lower than our own.
Make no mistake, American intellectual property and the almost
unsurpassed contribution it makes to our balance of trade is at risk
around the world. Piracy costs American creators $15 billion in sales.
In a digital era which brings the capacity to make perfect copies of
copyrighted works, we must enact this legislation to fight overseas
piracy and the toll it takes in export revenues and American jobs.
Madam Speaker, I think the gentleman from Massachusetts (Mr. Frank)
had it right. In the context of trying to protect this property, we
needed to come to reasonable balances with providers of these services,
with people who have legitimate interests in the fair use. This is, at
least at this particular point, the best effort we can make to try to
come to those kinds of balances and still provide the essential
protection that this bill provides. I urge its adoption.
Mr. BLILEY. Madam Speaker, I yield such time as he may consume to the
gentleman from Michigan (Mr. Dingell).
(Mr. DINGELL asked and was given permission to revise and extend his
remarks.)
Mr. DINGELL. Madam Speaker, I thank my good friend for yielding to
me.
Because of an act of extraordinary lack of comity of the part of the
managers of the bill on this side, and because of some extraordinary
discourtesy, the Committee on Commerce has not been afforded our share
of the time on this bill. I am therefore compelled to request time from
the Republicans for this unanimous consent request. I express my
thanks.
I hope that the next time our two committees deal with each other,
there will be more courtesy shown by the Committee on the Judiciary. I
intend to remember this event.
Mr. DINGELL. Mr. Speaker, I rise in support of H.R. 2281, the
``Digital Millennium Copyright Act,'' and I urge my colleagues to join
me. This legislation is vitally important to the livelihoods of
authors, musicians, filmmakers, software developers, and countless
other creators of copyrighted works. However, just as important, this
bill will preserve the legal right of information consumers to make
``fair use'' of copyrighted works just as they have done for over one
hundred years.
Why is this treaty and its implementing legislation important? The
digital age has vastly improved the quality of these works that we all
enjoy. Today limitless copies can be made with virtually no reduction
in quality. Unfortunately, these improvements in technology do not come
without a cost. Piracy of copyrighted works, particularly overseas, has
increased dramatically, and copyright owners are desperately in need of
additional protection to protect their property from thieves who
increasingly prey on their creative ingenuity.
However, there is another side to this story. As copyrighted works
are afforded more protection, they will be encrypted in ``digital
wrappers'' that make them impenetrable to anyone other than those who
are willing to pay the going rate. While that may sound like the
American way, it is not. United States copyright law historically has
carved out important exceptions to the rights of copyright owners to
have exclusive control over the use of their property.
The most notable exception is ``fair use.'' Libraries and
universities, for example, are permitted to freely use portions of
copyrighted works legally for research and study. This practice has
been a bedrock of our copyright law for over a century. Both Congress
and the courts repeatedly have recognized this important balance in the
law between the right of copyright owners to be compensated for their
efforts, and the right of information consumers to use these works in
limited ways to increase knowledge and understanding for the benefit of
our whole society.
We can now take great comfort in the fact that H.R. 2281 will
continue to recognize this important balance. The ``fair use'' debate,
though heated at times, was negotiated to an acceptable conclusion in
the Commerce Committee, and this key compromise between the content and
``fair use'' communities is reflected in the bill on the floor today.
Other critical matters were also resolved, such as protecting consumer
privacy interests, electronic device manufacturing, and encryption
research.
I would like to commend my good friend from Virginia, Chairman
Bliley, for his fine work on this bill. In addition, I would also like
to give special thanks to Mr. Boucher and Mr. Klug who contributed so
much to the resolution of the ``fair use'' issue, as well as Mr. Markey
and Mr. Tauzin for their important efforts. Also, special thanks goes
to all the staff who worked so hard on this legislation, in particular
Justin Lilley with the Commerce Committee majority, Andy Levin and Kyra
Fischbeck with the Commerce Committee minority, Ann Morton with Mr.
Boucher, Kathy Hahn with Mr. Klug, Whitney Fox with Mr. Tauzin, and
Colin Crowell with Mr. Markey, to name just a few.
Thank you, Mr. Speaker. I yield back the balance of my time.
Mr. BLILEY. Madam Speaker, I yield one minute to the gentleman from
Ohio (Mr. Oxley).
(Mr. OXLEY asked and was given permission to revise and extend his
remarks.)
Mr. OXLEY. Madam Speaker, I rise in strong support of H.R. 2281, the
WIPO enabling legislation. I want to pay special tribute to the
chairman of the full committee, the gentleman from Virginia (Mr.
Bliley), as well as the gentleman from Illinois (Chairman Hyde), for
their work as well, as my good friend the gentleman from Michigan (Mr.
Dingell) on the other side of the aisle.
The digital revolution presents special opportunities and special
challenges for copyright holders and users of copyrighted works.
Working with the Committee on the Judiciary, I think we put together a
bill that we can all be proud of that deals with issues like fair use,
encryption research and temporary and ephemeral copies.
This legislation will extend copyright protections for intellectual
property into the digital age, while simultaneously protecting fair use
of such works. It will provide an important foundation for the growth
of electronic commerce on the Internet.
The bill also includes an important provision preserving the
authority of the SEC over the mechanisms by which the public obtains
information about our securities markets, including stock quotes. This
ensures that the commission will be able to ensure that investors have
ready access to the information they need to make their investment
decisions.
[[Page H7100]]
I again thank the work of both the Committee on Commerce and the
Committee on the Judiciary for bringing us where we are today.
Mr. FRANK of Massachusetts. Madam Speaker, I yield myself such time
as I may consume.
Madam Speaker, I had intended to stick to the merits, but I did want
to respond to the ranking member of the Committee on Commerce.
Unfortunately, the public got a look at some of the turf battles that I
do not think serve us very well.
The gentleman made some reference to comity. I do not know how that
was spelled. But had the gentleman wanted me to yield him some time, I
would have been glad to do it. I did not, because I had not been
instructed by the ranking member of my full committee to split the time
in terms of control. But I am glad to yield time to anyone who wants.
Indeed, I yielded four minutes right away to the gentleman from
Virginia. Now, the gentleman serves on both the Committee on the
Judiciary and the Committee on Commerce, but he used his four minutes
for a tribute to the work of the Committee on Commerce that was lyrical
in its composition, and I am sure will go down in the annals as one of
the best tributes to a committee ever given.
So, at this point I would reserve the balance of my time, but if
Members want to speak, I would be glad to yield them time.
Mr. BLILEY. Madam Speaker, I yield one minute to the gentleman from
Wisconsin (Mr. Klug), who did an extraordinary amount of work on this
piece of legislation.
Mr. KLUG. Madam Speaker, I thank the gentleman for yielding me time.
Madam Speaker, we have in front of us a very difficult balancing act,
essentially trying to protect the American creative community across
the world, people who make movies and television shows, book publishers
and the recording industry. But in an era of exploding information, we
also have to guarantee access to libraries and also university
researchers, to make sure we do not enter a new era of pay per view,
where the use of a library card always carries a fee and where the flow
of information comes with a meter that rings up a charge every time the
Internet is accessed.
Today we have a reasonable compromise in front of us, and I want to
thank the gentleman from Virginia (Mr. Bliley) and the gentleman from
Michigan (Mr. Dingell) for their leadership.
If I also could indulge the committee to single out several other
people, Justin Lilley of the committee staff, Kathy Hahn of my staff,
for working so hard on this compromise, and in particular the support
of my colleague, the gentleman from Virginia (Mr. Boucher). I urge
adoption of the bill.
I rise in support of H.R. 2281, the Digital Millennium Copyright Act
of 1998 and request permission to revise and extend my remarks and to
submit additional materials into the record.
I especially want to acknowledge the many significant contributions
that the Commerce Committee has made to this bill, under the leadership
of Chairmen Bliley and Tauzin and Representatives Dingell and Markey,
and Justin Lilly, Kathy Hahn on my staff.
The bill that came to the Commerce Committee for consideration was a
flawed bill in a number of respects: Most important, it created a flat
prohibition against circumventing ``technological protection measures''
for any reason.
This original prohibition passed by the Judiciary Committee sharply
skews the balance in favor of copyright owners. It would have required
each user of information to negotiate with the copyright owner for
access to information. I assume that the copyright owner would grant
that permission, but would extract a price in exchange.
The Copyright Clause of the Constitution grants a limited preference
to copyright owners. But this clause has consistently been interpreted
to grant an incentive for the purposes of advancing knowledge or, in
the words of the Constitution, ``to promote the Progress of Science and
the Useful Arts.''
This incentive has always been interpreted to be of secondary
importance to ``allow the public access to the products of genius.''
As the New York Times noted recently:
As Congress fashions ways to protect commercial interests
in the digital realm, it must be careful also to protect the
larger public interests in broad access to information. * * *
The law does not allow a creator to control who looks at the
material or prevent the material from being circulated or
lent to others. It specifically allows the ``fair use'' of
copyrighted materials for commentary, criticism, teaching,
news reporting, scholarship and research under certain
circumstances without permission from the copyright owner.
And, as the Washington Post notes this morning:
this transition to a pay-per-view world, * * * works fine for
the entertainment industries and the commercial market. Where
it doesn't work is in libraries and other places where use of
books and research material is not pay-per-view but, till
now, free.
The Commerce Committee corrected this automatic transition to a pay-
per-view world by creating an exception for persons having gained
lawful access who are or are likely to be adversely affected by the
prohibition. In interpreting ``lawful access'', it is my hope that this
term is broadly construed to include students at a university, patrons
in a library, and investigative journalists who obtain critical
information, among others.
Unlike the version reported by the Judiciary Committee, the approach
taken by the Commerce Committee and reflected in the bill before us not
only is an appropriate balance between the rights of copyright owners
and users of information, it is also strongly supported by the treaty
preamble that recognizes, ``the need to maintain balance between the
rights of authors and the larger public interest, particularly
education, research, and access to information.''
I also want to single out several other important contributions of
the Commerce Committee. We have clarified that product designers and
manufacturers should be able to design their products based on consumer
demand. In so doing, we have eliminated any ambiguity or presumption
that products must be designed to affirmatively respond to or
accommodate any technological measures. It also ensures that lawyers,
judges and juries do not become the principal designers of consumer
products in this country. In the end, this language ensures that
product designers and manufacturers will have the freedom to innovate.
As a related matter, consumers will continue to expect that the
products they buy will perform to expectations, whether that be high
resolution on high definition television or sound on-key for compact
disks and digital video disks. Nothing in this bill, as clarified by
the Commerce Committee in its report, should be read as interfering
with a product manufacturer, designer, or retailer's ability to adjust
any product that is experiencing material distortions caused by
technological measures. We have an obligation up here to protect
consumer interests, and ensuring that products play as promised is a
critical step for consumer protection.
The compromise that is before us today is a thoughtful, well-crafted
approach to a complicated problem. I not only urge my colleagues to
vote for this compromise legislation, I strongly urge Chairman Hyde to
adhere to this compromise language in its entirety, not just today, but
when the House meets in conference with the Senate.
Mr. FRANK of Massachusetts. Madam Speaker, I yield myself such time
as I may consume.
Madam Speaker, I did want to say that the ranking member of the full
Committee on the Judiciary, the gentleman from Michigan (Mr. Conyers),
is in Michigan today because it is primary day in Michigan, and only
that kept him from being here. The gentleman has been for a long time
now one of the staunchest advocates of intellectual property rights. He
is a man who has a great feel for American culture, and fully
understands the role of intellectual property correctly understood in
fostering our cultural traditions.
So I did want to express the strong support of the gentleman from
Michigan and note that his leadership in this was very, very important,
and to explain his absence as being due entirely to the fact that he
had to be in Michigan for his primary.
Mr. BLILEY. Madam Speaker, I yield one minute to the gentleman from
Washington (Mr. White), who also put in a lot of work on this piece of
legislation.
Mr. WHITE. Madam Speaker, I thank the chairman for yielding me time.
Madam Speaker, pretty much no matter what we do, this bill would be a
big win for our country, because what this bill does in essence is it
implements a treaty under which the rest of the world finally adopts
our view of intellectual property. That is a big win for the United
States.
But we also have the advantage that this bill actually turned out to
be a pretty good bill, thanks to the gentleman from Virginia (Chairman
Bliley) and the gentleman from North
[[Page H7101]]
Carolina (Chairman Coble), the gentleman from Illinois (Chairman Hyde),
and many of the other people who worked on it.
The thing I like the most about it is that it moves intellectual
property protection into the digital age. I was proud to play a small
part in improving the bill. We adopted a special program for
webcasting, this is broadcasting on the Internet. We will now have
clear rules for how those sorts of things are supposed to be done.
I think this should be a day when all of us are very pleased that we
are moving through the House a bill that will make big progress around
the world for intellectual property, which is a big improvement for
things in the United States.
Mr. BLILEY. Madam Speaker, I yield one minute to the gentleman from
Florida (Mr. Stearns), a member of the committee.
(Mr. STEARNS asked and was given permission to revise and extend his
remarks.)
Mr. STEARNS. Madam Speaker, I also rise in support of the bill and
compliment our chairman, the gentleman from Virginia (Mr. Bliley), and,
of course, I compliment my good friend the gentleman from North
Carolina (Mr. Coble), for their activities.
I participated in some of the areas dealing with technological
protection measures, defining this actually: The no-mandate provision,
which makes clear that manufacturers need not design their products to
respond to any particular technological protection measure was included
in the report; language to the compromise on ``fair use'' which seeks
to protect consumers from a pay-per-view world in the digital area;
and, three, provisions ensuring activities important to our economy and
national security such as reversed engineering and encryption research
will not be stifled by the new prohibition on circumventing
technological protection measure.
I appreciate also the gentleman from Virginia (Mr. Boucher), who was
very helpful and diligent in approving our amendments and working
together. I recognize his efforts, and I rise in strong support of the
bill.
Mr. Speaker, I rise in support of the final legislative product to
implement the World Intellectual Property Organization Treaty to
provide legal protection to the millions of American copyright holders
and American companies.
I would also like to congratulate the efforts and the hard work of
the key players to forge a compromise and bring this bill to the floor:
Chairman Bliley of the Commerce Committee and Chairman Coble of the
Intellectual Property Subcommittee deserve particular praise.
It has been a long and hard process to get us to this point. I had
numerous concerns with the original bill that I believed needed
correction.
During consideration of H.R. 2281, the Commerce Committee heard from
many concerned groups including libraries, educators, researchers,
consumer groups, advocates for families such as Eagle Forum and the
Christian Coalition, and representatives of manufacturers of legitimate
consumer electronics products. All of these groups raised legitimate
concerns which the Commerce Committee has sought to address.
The bill we consider today represents many hours of debate and
compromise.
It is not a perfect solution, but it includes important provisions
designed to protect consumers and legitimate manufacturers of consumer
electronics while providing important new protections to copyright
owners so that their works may thrive in the digital environment.
Among the important provisions in the legislation are:
(1) The ``no mandate'' provision which makes clear that manufacturers
need not design their products to respond to any particular
technological protection measure;
(2) The compromise on ``fair use'' which seeks to protect consumers
from a ``pay-per-view'' world in the digital era; and
(3) Provisions ensuring that activities important to our economy and
national security such as reverse engineering and encryption research
will not be stifled by the new prohibition on circumventing
technological protection measures.
I would also like to note that during consideration of the WIPO
legislation in the Commerce Committee, I had joined with my good friend
from Virginia, Mr. Boucher, in offering an amendment that would have
defined the term ``technological protection measure,'' because such a
definition was lacking in the original bill.
Mr. Boucher and I worked diligently to improve our amendment and to
seek a compromise position for a definition that would have enjoyed the
support of the content community, as well as from the product
manufacturers. We succeeded.
In order to push the bill forward and out of the Commerce Committee,
we agreed to withdraw the amendment in exchange for Chairman Bliley's
support of report language that would have expanded on the proper
definition of a ``technological protection measure.''
Although I believe the bill could have been further improved had we
had the chance to define this term before bringing the bill to the
floor, I believe the report of the Commerce Committee very clearly
identifies the types of technological protection measures which are
entitled to the special protections of this legislation.
In addition, I am confident that the federal courts that consider the
meaning of the term ``technological protection measure'' will find
sufficient guidance in the Commerce Committee's report.
I thank Chairman Bliley for following through on his commitment and
allowing such report language to be drafted, inserted, and negotiated
with the Judiciary Committee.
I ask unanimous consent that my extended and revised remarks appear
in the Record as if spoken.
Mr. BLILEY. Madam Speaker, I yield one minute to the gentleman from
Massachusetts (Mr. Markey).
{time} 1415
Mr. MARKEY. Madam Speaker, I thank the gentleman for yielding me the
time.
I want to congratulate all of the Members who have worked on this
legislation, Madam Speaker. As the digital revolution sweeps over
countries and industries, we are going to see a dramatic change in the
nature of the American economy, because we are the clearcut leader in
the post-GATT post-NAFTA world.
As we cut this implicit deal with the American people where we are
going to let the low-end jobs go, it is critical for us to garner the
lion's share of the high-end jobs. We are the world's leader in
software, without question. In these computer, movie, books, video
areas, we are the unquestioned dominant leader. It is our job to make
sure that we construct treaties, laws, that protect our high end, our
products that are related to the high education level which we are
giving the citizens of the United States.
Built into this law are protections for the privacy of Americans, as
well. We do not want corporations being able to insinuate themselves
into the privacy of Americans, finding out where they go, what they do,
as they use these new software technologies.
I think we have struck a nice balance, which is going to give
marketplace incentives to industries to ensure that individuals have
the knowledge on information that is being gathered about them, know
that it may be reused, but also have the right to say no. I think it is
going to be a good compromise forged.
I urge a very strong yes for all Members of Congress on this very
important piece of legislation.
Mr. FRANK of Massachusetts. Madam Speaker, I yield myself such time
as I may consume.
I am glad to turn away from the turf battles, which are to be of
interest to no one outside this Chamber and very few inside, to talk a
little more about substance.
Madam Speaker, I said earlier that one of the things I liked about
this bill was that we reversed or at least stopped this trend to
impinge on free speech. We have reduced the tendency to restrict speech
which is electronically transmitted to a lesser degree of
constitutional protection. But this is not the only bill relevant. I
want to talk here about the danger in some other legislation of our
continuing the unfortunate tendency of holding electronically
transmitted speech to a lesser standard of protection.
I am told working its way through this body is legislation which
would deny Federal aid to libraries and schools which do not impose
various kinds of filtering devices on their own equipment. That it
seems to me a very grave error. Of course, it makes a mockery of this
profession of respect for States' rights which we occasionally hear,
particularly when those who claim to be for States' rights do not like
what the States are doing.
But the notion that we would impose a Federal judgment on schools and
libraries, and make them use this very
[[Page H7102]]
admittedly imperfect technology of filtration so that they would be
less than fully free in what they gave people, is an example of this
unfortunate tendency to say that electronically transmitted speech has
a lesser order of protection.
I hope no one would propose that Congress would say libraries would
not get any money unless they censored books, unless they censored
public speeches. Why, then, do we insist, and I hope we do not, that
libraries can only get Federal funds if they agree to censure their
electronic devices?
We already passed as part of the Telecommunications Act something
called the Communications Decency Act, which was stricken by a 9 to
nothing vote in the Supreme Court as unconstitutional. Indeed, some of
the most ardent defenders of free speech during the campaign finance
debate enthusiastically supported this, which was obviously
unconstitutional at the time, and the Supreme Court held it to be.
I would just say in closing, Madam Speaker, that while I am pleased
that here we took great pains to protect intellectual property while
avoiding giving any additional incentive to censor, we may be undoing
that in other pieces of legislation.
I would urge my colleagues to follow elsewhere the guide that I think
we have set forth here: Do not adopt restrictions on electronically
transmitted speech that we would not apply to written speech and to
oral speech, to newspapers, to magazines, to theater, to other forums
of public debate.
As this society continues to increase the percentage of our
communication with each other that is electronically transmitted, it is
essential that we give electronically transmitted speech the same high
degree of protection from censorship and regulation that we give other
speech, or we will be a less free society in consequence.
Madam Speaker, I reserve the balance of my time.
Mr. BLILEY. Madam Speaker, I yield 1\1/2\ minutes to the gentleman
from Michigan (Mr. Knollenberg).
(Mr. KNOLLENBERG asked and was given permission to revise and extend
his remarks.)
Mr. KNOLLENBERG. Madam Speaker, I thank the chairman for being so
gracious in relinquishing that time. I will not take all of it.
I will say, Madam Speaker, that I rise in full support of this bill.
I want to thank the gentleman from North Carolina (Mr. Coble) for his
work in helping bring about the confection of this language. Included
in the bill is a provision that I introduced to ensure that a computer
owner may authorize the activation of their computer by a third party
for the limited purpose of servicing computer hardware components. The
bill provides language that authorizes third parties to make such a
copy for the limited use of servicing computer hardware, the hardware
components.
This provision does nothing to threaten the integrity of the
Copyright Act, and maintains all the protections under the Act. The
intent of the Copyright Act is to protect and encourage a free
marketplace of ideas. However, without this provision, it hurts the
free market by preventing the ISOs from servicing computers.
Furthermore, it limits the computer users' choice of who can service
their computer and how competitive a fee can be charged.
Again, I want to thank the gentleman from North Carolina (Mr. Coble)
for all of his work in helping us along on this.
Mr. COBLE. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, I thank everybody who has contributed to this exercise
today. The creative ingenuity of the people of this country is
responsible for our identification, culture, and not insignificantly
large trade surplus. This has only come about because this country,
through the work of the congressional judiciary committees down through
the years, has enacted laws which protect intellectual property.
Our Founding Fathers, Madam Speaker, knew that a constitutional
protection would be necessary in order to encourage Congress to create
an incentive for creators. I am proud that this Congress and our
subcommittee on the Committee on the Judiciary specifically have stood
up for property rights of all kinds, both real property and
intellectual property. I urge passage of the bill.
Madam Speaker, I reserve the balance of my time.
Mr. FRANK of Massachusetts. Madam Speaker, I yield the balance of my
time to the gentleman from California (Mr. Dreier), and hope that he
will remember me when he becomes chairman.
The SPEAKER pro tempore (Mrs. Emerson). The gentleman from California
(Mr. Dreier) is recognized for 2 minutes.
Mr. DREIER. Madam Speaker, I appreciate the gentleman yielding time
to me, and I will, as we have amendments that conceivably could come
forward from the gentleman from Massachusetts next year, consider them.
I very much appreciate his acknowledging that I will be chairman next
year.
Madam Speaker, let me rise in very strong support of this agreement.
One of the most troubling aspects to this issue of global trade which
is very important to the survival of our economy has been the issue of
piracy. When we look at the impact that this has had on the
entertainment industry and the biotechnology industry in my State of
California, it is very, very troubling.
When we have ideas that emanate from individuals, the right to make
sure that that is their property must be ensured. This WIPO agreement
is in fact the best hope that we have to ensure that it will be
acknowledged.
I simply rise to congratulate my friends who have been involved in
this, the gentleman from North Carolina (Mr. Coble), the gentleman from
Illinois (Mr. Hyde), and of course, the Committee on Commerce, under
the able leadership of the gentleman from Virginia (Mr. Bliley), and a
wide range of individuals in other industries, and of course, the
gentleman from Massachusetts (Mr. Frank).
This is a very important agreement, and I urge my colleagues to
strongly support it.
Mr. BLILEY. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, I urge adoption of the bill.
Mr. COBLE. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, I want to say to the gentleman from California, he
said he would remember the gentleman from Massachusetts (Mr. Frank). I
hope he remembers that both of us worked to accommodate him today when
he has the gavel in his hand next year.
Finally, this has obviously been a team effort, Madam Speaker.
Oftentimes we hear charges accusing us of being a do-nothing Congress.
I think this piece of legislation today pretty well refutes that
charge. Much good has been done in this session of the Congress, and
today has been no exception. I thank everyone again for having
contributed very favorably to this dialogue today.
Mr. HASTERT. Mr. Speaker, I am proud to rise in support of H.R. 2281,
the Digital Millennium Copyright Act.
I am very pleased that Chairmen Bliley, Hyde, Coble and Tauzin were
able to reach a compromise on this bipartisan bill.
We all know that the strength of our copyright laws is fundamental to
making our economy a success, while also allowing ``fair use'' of
protected works for the common good.
Just because an authorized product is in a digitized form, we should
not hinder a child's learning at St. Charles Public Library, or
complicate an academic's research at Northern Illinois University, or
prevent a high-tech engineer in Illinois from improving innovative
products.
Specifically, this legislation includes new terminology vital to
better resolving the issues ahead of us. The bill language on . . .
``no mandates on design'' . . . . reverse engineering'' . . .
``playability'' . . . and ``definition of protection measures'' . . .
will provide the framework for continuing the proper balance in the
law.
By adopting these new terms, we can anticipate future policy
concerns, and create a fair and balanced approach to solving the
questions of the digital revolution.
Ms. SLAUGHTER. Mr. Speaker, I rise in support of H.R. 2281, the
Digital Millennium Copyright Act, which would raise the international
standards of copyright protection so that we can help combat the
devastating losses to American companies that are being caused by the
international piracy of copyrighted works.
As Chair of the Congressional Member Organization for the Arts, I am
greatly concerned about the grave effects of copyright violations on
America's artists, writers, and software engineers. The dramatic growth
of the Internet is
[[Page H7103]]
providing us with tremendous new opportunities for electronic commerce
and communication. But these same technological developments also carry
significant risks, especially in the area of international copyright
piracy. Today, American companies are losing $18-20 billion annual
because copyrighted works can be stolen and distributed around the
world by anyone capable of using a computer.
This legislation protects our nation's movie producers, record
makers, and software designers from being forced to absorb more of
these losses. At the same time, it protects lawful use of materials by
classrooms and libraries, and allows individuals who perform encryption
research to continue with their work. However, it does prohibit the
sale, manufacture and use of devices and component parts that are
specifically designed to gain unauthorized access to copyrighted works.
It also addresses the issue of online service provider liability,
incorporating language based on a compromise that has been reached
among groups on all sides of the debate.
I urge my colleagues to vote yes on passage of H.R. 2281 so that we
can protect the work of our nation's talented individuals from
copyright violations while encouraging the growth of electronic
commerce.
Mrs. MORELLA. Mr. Speaker, although the Commerce Committee changes to
H.R. 2281, the WIPO Copyright Treaties Implementation Act, vastly
improved the bill from the original Judiciary Committee passed version,
I am still deeply troubled that H.R. 2281 is being considered on the
suspension calendar. As I indicated in a July 31 letter to the Majority
Leader, signed by several other Members of the House, I was very
interested in offering a distance education amendment to H.R. 2281 that
has the support of every educational group, from the National Education
Association to the National Center for Home Education.
As we enter the 21st Century, distance education will play an even
more pivotal role in educating our children, and those individuals
interested in life long learning. Distance education will fill an
important gap for those individuals, either because of family
obligations, work obligations, or other barriers, who are prevented
from attending traditional classes. It will also allow educational
institutions, from outlying rural towns to the heart of America's inner
cities, to access a full range of academic subjects that would
otherwise not be available to them.
The amendment that I was planning to offer would have updated the
exceptions to copyright law regarding distance education to meet the
new challenges and allow for the use of new and exciting technologies
that will improve the education of our citizens, so that we are better
prepared to compete in this more competitive global economy. This is
particularly important in my district where we currently have a
shortage of high-technology workers that is hindering our economic
growth.
In 1976, as part of the general revision of the Copyright Law, the
Congress recognized the importance of the burgeoning practice of
distance learning. As the House Report on Copyright Law Revision (No.
94-1476) put it, in the context of higher education, these
``telecourses are fast becoming a valuable adjunct of the normal
college curriculum.'' (p. 84). The use of the term ``telecourses'' is,
of course, significant. At the time, the only technology by means of
which distance education could be conducted was that of television
(either ``open'' or ``closed-circuit'') and in providing an exemption
from copyright liability for illustrative uses of certain works in the
course of distance learning lessons; typically, moreover, these lessons
involved the transmission of text material, still images, or music.
Against this background, the Congress proceeded to fashion the
provisions of 17 U.S.C. 110(2).
The Copyright Act, in Section 106, provides for the various
``exclusive rights'' of the copyright owner. Because, as a matter of
definition, TV broadcasting implicates only Section 106(4) ``public
performance'' and the Section 106(5) ``public display,'' the distance
education exemption in Section 110(2) relieves educators of liability
with respect to those two rights. Moreover, since educational TV
broadcasts typically at assembled groups of students, Section 110(2)
was drafted to apply to ``reception in classrooms of similar places''
(extending to home reception only in the case of disabled persons and
others in ``special circumstances''). Finally, Section 110(2) was
written to apply only to performances of ``non-dramatic literary or
musical works,'' categories from which the overwhelming proportion of
illustrative excerpts required by teachers would have been drawn.
More than 20 years later, distance education practice has changed
dramatically. Increasingly, distance learning has become a staple of K-
12 as well as higher education, and digital networks have become the
favored technology for the delivery of distance learning lessons. As a
technical matter, network transmissions generally become available to
recipients only because a temporary copy of their content is made in
the so-called ``random access memory'' of those recipients' computer
terminals; thus, network transmission of an excerpt from a copyrighted
work in the course of a distance learning lesson may involve not only
the performance or display of that work, but also its ``distribution''
(another right which is reserved to the copyright owner in Section
106(2), and not covered by existing Section 110(2)). Moreover, many
contemporary distance learning transmissions are intended primarily for
reception in the homes or offices of students who are neither disabled
nor exhibit other ``special circumstances''; indeed, many such
transmissions are offered by institutions (like the Western Governors'
University or various home-school networks) which have few or no
physical ``classrooms or similar places.'' Again, existing Section
110(2) would not appear to cover such instructional programs. Finally,
in the age of multimedia, instructors must be able to illustrate their
lessons with relevant excerpts not only from the conventional literary
and musical works covered in existing Section 110(2), but from the full
range of cultural materials to which protection under the Copyright Act
extends.
As I mentioned before, the proposed amendment would legitimize the
best current practice in the field of distance education and encourage
further innovation in this important area by eliminating
technologically or educationally outdated restrictions from Section
110(2). By adopting such an amendment, the Congress would be following
through on the decision it took in 1976 to encourage the practice of
distance education by providing educators with a clearly defined ``safe
harbor'' within which they could design lessons with enhanced learning
value, free from concerns about potential legal liability.
As amended, the Section 110(2) exemption would apply only to
qualified not-for-profit institutions and home-schools. ``Fly-by-
night'' commercial trade schools and sham entities without demonstrable
educational purposes would not qualify. Moreover, the amended sections
would retain crucial restrictive language from the original, which
limits its applicability to situations in which excerpts from
copyrighted works are used ``for purposes of illustration, and [are]
directly related and of material assistance to the teaching content''
of a distance learning lesson; indeed, the amended section would
amplify that restriction with a new provision stating that the material
used for illustrative purposes must be ``limited to that portion of the
work reasonably necessary to accomplish the teaching purpose.'' In
other words, the amended section would not permit educators to put
entire copyrighted textbooks on line; such conduct is an infringement
of copyright today, and it would continue to be under the amended
section.
Nor would the section allow distance education programming to become
a gateway through which valuable copyrighted works, in their entirety,
could flow out into the Internet and become generally available. This
is all the more so because the amended section applies only to
educators who had not taken reasonable steps to provide safeguards
against distance education transmissions being received by non-students
or copied for redistribution. Thus, the amended section actually would
give distance educators a new incentive to upgrade the security
features of their networks to discourage copyright infringement.
It also is noteworthy that the exemption which would be defined in
the amended section would be available only in connection with the
actual delivery of educational materials by educators and their
institutions, or (in the case of home schools) by parents. It would not
deprive copyright owners of revenues in connection with the licensing
of their works for inclusion in ``packaged'' materials designed for use
in connection with distance education. Just as textbook authors and
publishers today must obtain appropriate copyright clearances in order
to include excerpts from copyrighted works, so would the creators of
tomorrow's ``electronic texts.''
Mr. COBLE. Madam Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. 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. 2281, 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.
The title of the bill was amended so as to read:
``A bill to amend title 17, United States Code, to
implement the World Intellectual Property Organization
Copyright Treaty and Performances and Phonograms Treaty, and
for other purposes.''.
A motion to reconsider was laid on the table.
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