[Congressional Record Volume 147, Number 21 (Wednesday, February 14, 2001)]
[Senate]
[Pages S1376-S1384]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 INTELLECTUAL PROPERTY AND HIGH TECHNOLOGY TECHNICAL AMENDMENTS ACT OF 
                                  2001

  The PRESIDING OFFICER (Mrs. Lincoln). Under the previous order, the 
hour of 2 p.m. having arrived, the Senate will now proceed to the 
consideration of S. 320, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 320) to make technical corrections in patent, 
     copyright, and trademark laws.

  The PRESIDING OFFICER. Under the previous order, there will now be 1 
hour of debate on the bill equally divided in the usual form.
  The Senator from Utah.
  Mr. HATCH. Madam President, I rise today to discuss S. 320, the 
Intellectual Property and High Technology Technical Amendments Act, 
which I have worked on with my distinguished colleague, the ranking 
member of the Judiciary Committee, Senator Leahy. We have had a very 
productive relationship in the Judiciary Committee in the area of high 
technology and intellectual property. Our bipartisan cooperation has 
resulted in much good legislation that has helped American consumers 
and businesses and which has encouraged American innovation and 
creativity, including greater deployment of the Internet.
  Some recent examples of our work include the following items:
  The Satellite Home Viewer Improvement Act, which authorized the 
carriage of local television stations by satellite carriers, has 
brought local television to thousands across the country who might not 
have been able to get it before, and has brought competition in 
subscription television services to many others who before could only 
choose the local cable company. The passage last year of a loan 
guarantee program will help make the benefits of this law more widely 
available.
  The Anticybersquatting Consumer Protection Act helps guard against 
fraudulent or pornographic websites that confuse, offend, or defraud 
unwitting online consumers who go to sites with famous business names 
only to find that someone else is using that trademarked name in bad 
faith under false pretenses. This law also helps protect the goodwill 
of American businesses that could be hurt by the bad faith misuse of 
their trademarked business name in ways that tarnish their

[[Page S1377]]

name or undermine consumer confidence in their brands.
  The American Inventor Protection Act is helping to further serve 
American innovators with more streamlined procedures at the United 
States Patent and Trademark Office, and better organizing the Office so 
that it will better serve its customers, American inventors. There are 
also protections for inventors from unscrupulous businesses that prey 
on small inventors who are not familiar with the procedures of 
obtaining a patent.
  The Digital Millennium Copyright Act updated copyright law for the 
Internet, while striking a balance necessary to foster technological 
development and full deployment of the Internet. This law has set the 
groundwork for entertainment convergence on a single interactive 
platform where the consumer is king and can set his or her own schedule 
for news, information, entertainment, communication, and so on.
  Well, Madam President, this is just a sampling of what we have 
achieved together. And it is a prelude to what we can do in the future.
  Today, we are here to discuss S. 320, the Intellectual Property and 
High Technology Technical Amendments Act. S. 320 is a technical 
corrections bill to clean up some scrivener's errors that have crept 
into the U.S. Code in the patent, trademark, and copyright laws. We, 
the sponsors, believe it is to the benefit of smooth functioning of the 
law to clean up the Code to make it easier to use, and to more 
accurately reflect Congressional intent.
  Specifically, the bill corrects typographical errors such as 
misspellings, dropped or erroneous cross-references or punctuation 
errors. It also makes consistent the titles of the U.S. Patent and 
Trademark Office and its officers. It also clarifies some unclear 
drafting in the Code on some procedural matters at the USPTO, such as 
making it clear that if foreign trademark applicants fail to designate 
a U.S. agent, the USPTO Commissioner is deemed to be that agent for 
delivery of documents regarding that application; and ensuring that no 
prior art effect will be given to foreign patents or patent 
applications unless they are published in English. It makes it easier 
for small inventors to sit on the USPTO Advisory Committee. These pro-
American inventor policies are codified now in the law, but not clearly 
drafted. This bill makes them clearer.
  All of these changes make the intellectual property laws of our 
country easier to use and understand for our constituents who invent, 
create, innovate and so serve our other citizens. It also makes the law 
clearer for those who use the inventions and creations of others. I 
believe there is no controversy about the provisions of this bill, and 
it clears the way for further Congressional action to foster the growth 
of our most innovative sector, our intellectual property sector.

  With regard to that, Senator Leahy and I are releasing today our 
joint High Technology and Intellectual Property legislative agenda.
  I would like to mention some of the items on that agenda and discuss 
some of them briefly.
  In the Internet Age, many basic questions need to be asked anew about 
the relationships between the artists and the media companies that 
market and distribute their product; about the rights of consumers and 
fans to use works in new ways and the ability of technology companies 
and other mediators to assist them in those uses; and about the 
accessibility of works to scholars, students, or others for legitimate 
purposes. We need to continue to think about how the copyright system 
applies in the Internet world, where some of the assumptions 
underpinning traditional copyright law may not be relevant, or need to 
be applied by a proper analogy. Are there ways to clarify the rights 
and responsibilities of artists, owners, consumers, and users of 
copyrighted works? How can we foster the continued convergence of 
information, entertainment, and communication services on a variety of 
platforms and devices that will make life more enjoyable and 
convenient? We need to encourage an open and competitive environment in 
the production and distribution of content on the Internet.
  As the Internet's new digital medium continues to grow, we must 
ensure that consumers are confident that personally identifiable 
information which they submit electronically are afforded adequate 
levels of privacy protection. As consumer confidence in the security of 
their personal and financial information is enhanced, Internet users 
will be more willing to go online, make purchases over the Internet and 
generally provide personal information required by businesses and 
organizations over the Internet. At the same time, we must ensure that 
any initiatives have the least regulatory effect on the growth of e-
commerce and on commercial free speech rights protected by the 
Constitution. We expect to examine the adequacy of Internet privacy 
protection and will, where necessary, advance reforms aimed at ensuring 
greater privacy protection.
  For example, the Committee expects to examine the following:
  (1) How are privacy concerns impacting the growth of e-commerce, in 
the financial services industry, in the insurance industry, in online 
retailing, etc., and the deployment of new technologies that could 
further the growth of, and consumer access to, the Internet?
  (2) Does Congress need to amend criminal or civil rights laws to 
address consumer electronic privacy concerns?
  (3) Does U.S. encryption policy negatively affect the growth of e-
commerce?
  (4) What is the impact of the European Union's Internet Privacy 
Directive on U.S. industry and e-commerce?
  (5) Can Federal law enforcement, particularly civil rights enforcers, 
play a larger role in safeguarding the privacy concerns of Internet 
users?
  (6) To what extent can web-sites and Government agencies track the 
Internet activities of individual users and what should be done to 
ensure greater protection of personally identifiable or financially 
sensitive data?
  We would like to work toward reforms that can more fully deploy the 
Internet to make educational opportunities more widely available to 
students in remote locations, to life-long learners, and to enhance the 
educational experience of all students.
  The Internet can bring new experiences to remote locations. My own 
home state of Utah has been experimenting with ways to bring the best 
possible educational experience to learners all across our state, some 
of whom live in remote rural areas, using wired technology. We would 
like to see how we can further support efforts to harness the 
communicative power of the wired world on behalf of students across the 
country.
  Science is advancing rapidly and the challenge to the patent system 
of genetics, biotechnology, and business method patents are daunting. 
Whole new subject matter areas are being exploited, from patents on 
business methods from financial services to e-commerce tools on the 
Internet. Both the complexity and the sheer volume of patent 
applications are expanding exponentially. Recent Supreme Court 
decisions have once again posed the question of state government 
responsibility to respect and protect intellectual property rights. And 
I believe we need to review the Drug Price Competition and Patent Term 
Restoration Act of 1984 to ensure that its balanced goals continue to 
be met.
  As many know, that act helped to create the modern generic drug 
industry. It has been estimated that it has largely saved consumers $10 
billion every year since 1984. It is considered one of the most 
important consumer protection acts in the history of the country.
  As the assignment of domain names transitions from a single company 
to a competitive, market-based system, we need to stay vigilant with 
regard to the significant antitrust and intellectual property 
ramifications this process holds for American businesses and consumers. 
We intend to build on our record of strengthening protection for online 
consumers by protecting the trademarks consumers rely on in cyberspace, 
while also encouraging the full range of positive interactions the 
Internet makes possible. I think the Internet can be a place of 
infinite variety while we continue to allow consumers to rely on brand 
names they know in the e-commerce context. The world-wide nature of the 
Internet also heightens the need for the United States to join 
international efforts to make worldwide intellectual property

[[Page S1378]]

protection, including that of trademarks, more efficient and effective 
for Americans. In particular, I hope we can move ahead on the United 
States accession to the Madrid Protocol.

  I have always maintained that proper and timely enforcement of 
federal antitrust laws can foster both competition and innovation, 
while minimizing the need for government regulation. This is an 
especially important paradigm for the Internet. We need to carefully 
think through the antitrust implications of Business-to-Business 
exchanges. We also need to consider carefully what remedies should be 
imposed in cases where antitrust violations do occur, notwithstanding 
the generally dynamic and competitive nature of Internet-related 
industries. We will also need to review the increasing legal tension in 
the high technology industry between intellectual property rights and 
antitrust laws. There has always been a tension here, but in the 
Internet world, we need to be careful that intellectual property or 
content power is not leveraged into distribution power, or otherwise 
used in anticompetitive ways. Furthermore, the Internet poses new 
questions about the competitive need to protect collections of data in 
a way that preserves incentives for the creation of databases without 
unduly hampering the free flow of information in anticompetitive ways.
  Access to new ``broadband'' technologies is increasingly important 
for full deployment and enjoyment of the Internet. We will need to 
consider the countervailing rights and duties of local phone companies 
and cable companies, either of which may provide broadband services in 
a local area. Specifically, what rights of access to broadband lines 
should competitors have, and what right to content should competitive 
distribution services have?
  The Internet is a radically new medium not just for commerce, but 
also for speech, broadcasting and advertising. As we analogize from 
traditional media such as broadcasting, we need to ask afresh what 
regulations make sense in this new medium, if any, and how do we cope 
with different media competing toward largely the same goal, but with 
differing rules?
  In summary Madam President, this non-controversial technical 
corrections bill clears the way for an exciting agenda for the 107th 
Congress in the Judiciary Committee. I hope we can pass this bill 
today, and I look forward to working with my colleague from Vermont on 
this most interesting and ambitious agenda.
  In fact, I enjoy working with him. We have worked together all these 
years, and I think maybe we can get more done this year than in the 
past. Hopefully, we can move these agendas forward in the best interest 
of all Americans.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Madam President, have the yeas and nays been ordered on S. 
320?
  The PRESIDING OFFICER. They have not been.
  Mr. LEAHY. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. LEAHY. Madam President, I thank my good friend from Utah for his 
comments. He and I have been working closely on an agenda for the 
coming year for the Judiciary Committee. As always, the agenda will 
reflect not only the needs of the Senate, but the friendship that the 
two of us have had for well over 20 years.
  I congratulate Senator Hatch for his continuing leadership in 
improving our copyright, trademark, and patent law. Our intellectual 
property laws are important engines for our economy, fueling the 
creative energy responsible for America's global leadership in the 
software, movie, music, and high-tech industries.

  The bill we considered today contains amendments recommended to us by 
the Copyright Office. I commend the Register of Copyrights, Marybeth 
Peters, for the expertise she brings to her office and the assistance 
she brings to us. At the end of my statement, I ask that a letter from 
Marybeth Peters in support of this legislation be printed in the 
Record.
  (See exhibit 1.)
  Mr. LEAHY. Over the past years, Senator Hatch and I, and others on 
the Judiciary Committee, have worked constructively and productively 
together on intellectual property matters. Just in the last Congress, 
we were able to pass the Anticybersquatting Consumer Protection Act, 
the Patent Fee Integrity and Innovation Protection Act, the Trademarks 
Amendments Act, the Satellite Home Viewers Improvements Act, and the 
American Inventors Protection Act. These significant intellectual 
property matters were preceded by our work together forging a consensus 
on the Digital Millennium Copyright Act, the Copyright Term Extension 
Act, the PTO Reauthorization Act, the Trademark Law Treaty 
Implementation Act, and many others. We and the other members of the 
committee have worked to ensure that divisive partisanship stays clear 
of this important area.
  The proof of what we in Congress can accomplish when we put partisan 
differences aside, roll up our sleeves, and do the hard work or 
crafting compromises is demonstrated by our record of legislative 
achievements on intellectual property matters.
  I hope all Senators will look at what Senator Hatch and I have been 
able to do when we set aside partisan differences and make sure we do 
things that work.
  This bill makes technical corrections to and various non-substantive 
changes in our intellectual property laws. Introduction and passage of 
this bill is a good start for this Congress, but we must not lose sight 
of the other copyright, patent and trademark issues requiring our 
attention. The Senate Judiciary Committee has a full slate of 
intellectual property matters to consider. I am pleased to work on a 
bipartisan basis with the chairman on an agenda to provide the creators 
and inventors of copyrighted and patented works with the protection 
they may need in our global economy, while at the same time providing 
libraries, educational institutions, and other users with the clarity 
they need as to what constitutes fair use of such work.

  We have to realize things have changed. There has been a lot in the 
press in the past couple days about the Ninth Circuit Court of Appeals 
decision in Napster. I suggest that if anyone thinks this is the end of 
the whole issue, they are mistaken.
  It is clear that creators and owners of copyrighted property should 
have their copyrights protected, and they should certainly be 
compensated for their artistry and their work.
  Those who distribute or produce copyrighted material, including 
movies, music, and books, have to realize their own business practices 
may well have to change and be a lot different. Profit margins may 
change, depending upon how it is done. Artists are not going to be 
beholden just to a few mega distributors. With the Internet, they are 
going to be able to work out their own way of distributing their 
material. They are going to be able to get themselves known if they 
want, even if it is by distributing their music, movies, or books for 
free.
  It is a different world out there, but it is just one example of the 
kinds of issues we have to look at. Applying copyright principles to 
new situations should not be done just by court-made law which is 
imprecise, at best, because a court is limited to the factual situation 
before it rather than a full panoply of circumstances, but can be done 
here, recognizing we have a whole new way of doing things.
  I remember when I was growing up in Montpelier, VT, my parents owned 
a small printing business. We used either moveable type or hot lead 
type. It was a laborious process. One thing I learned was not only to 
proofread in a hurry, but to read upside down and backward, as well as 
right side up and forward, because that is the way the letters work. It 
is a matter of consternation sometimes. People do not realize I am 
reading what is before me.
  Now I look at the business, and there has been enormous change. It is 
less labor intensive in the setting up--it is not even type anymore, 
now it is offset. It changes the whole economy, but opens up a whole 
new world, all using different kinds of copyrighted material.
  Among the things we should look at is protection from State 
infringement.

[[Page S1379]]

 In response to the Supreme Court's decisions in the Florida Prepaid 
and College Savings Bank cases, I introduced in the last Congress 
legislation to restore Federal protection for intellectual property to 
guard against infringement by the States.
  This is a reaction to an activist U.S. Supreme Court which held that 
States and their institutions cannot be held liable for patent 
infringement and other violations of the Federal intellectual property 
laws, even though those same States can and do enjoy the full 
protection of those laws for themselves.
  Basically, the Supreme Court--it seemed to me anyway--seems to be 
willing to rewrite the rule of law with regard to the Constitution, 
certainly when it comes to telling States what they cannot do. We know 
they are not hesitant to do that. The legislation I sponsored would 
condition a State's ability to obtain new intellectual property rights 
on its waiver of sovereign immunity in future intellectual property 
suits.
  It would also improve the limited remedies available to enforce a 
nonwaiving State's obligations under Federal law and the U.S. 
Constitution. This is a critical area in which the Congress should act.
  Then we have distance education. The Senate Judiciary Committee held 
a hearing in the last Congress on the Copyright Office's thorough and 
balanced report on copyright and digital distance education, something 
that can be very important to those of us from rural States where there 
may be small schools.

  While the distinguished Presiding Officer has metropolitan areas in 
her State, she also has very rural areas. Schools in rural areas may 
not be able to hire the top math teacher, the top language teacher, or 
the top science teacher, even though all these may be needed, but three 
or four of them together can do so if they are connected in such a way 
that they can utilize this.
  We need to address legislative recommendations outlined in the 
Copyright Office's report to ensure our laws permit the appropriate use 
of copyrighted works in valid distance learning activities. I know 
Senator Hatch shares my goal for the schools in this country, 
particularly in rural areas. We can use this technology to maximize the 
educational experiences of our children.
  It is an important area for the Judiciary Committee to examine. Not 
everybody comes from large schools. I had about 30 in my high school 
graduating class. Interestingly, every 4 years, all 500 of those 30 
students show up at my door saying they were a high school classmate; 
could they please have a ticket to the Presidential inauguration.
  We have the Madrid Protocol Implementation Act. I introduced 
legislation in the last two Congresses to help American businesses, and 
especially small and medium-sized companies, protect their trademarks 
as they go into international markets. The legislation would do so by 
conforming American trademark application procedures to the terms of 
the Madrid protocol.
  The Clinton administration transmitted the protocol to the Senate for 
its advise and consent last year. I regret we did not work on it 
promptly. I hope the new President will urge that action because 
ratification by the United States of this treaty would help create a 
one-stop international trademark registration process, an enormous 
benefit for American businesses.
  Next we have business method patents. The PTO has been subject to 
criticism for granting patents for obvious routines which implement 
existing business methods. The patent reform law that Senator Hatch and 
I worked out in the last Congress addressed one aspect of this matter: 
The prior user defense at least protects those who previously practiced 
that particular art. We should hold a hearing and engage the PTO in a 
dialog about this important issue to find out what you do with initial 
patents.
  Frankly, I find patenting electronic business practices not that far 
removed from the situation where two competing hardware stores in the 
spring put the seeds, the Rototillers, and whatnot out front and in the 
winter put the snowblowers out front. Should one be allowed to patent 
that process so in the summer its competitor would have to have its 
snowblowers out front and could not put out lawn items? I think not. 
That is what we are looking at, except now in a digital age.
  The Organization for Economic Cooperation and Development criticized 
the PTO for granting overly broad biotechnology patent protections. 
This area, as well as the international protection of patent rights, 
warrants examination and careful monitoring.
  Then we have the issue of rural satellite television and Internet 
service. It is important to the State of Vermont. It is important to 
every rural community. It is certainly important to mine. I live in a 
house where I cannot get any television. I used to joke that I would 
get one and a quarter. I do not even get the quarter anymore. I cannot 
get anything, but I can if I have satellite television, and I can get 
my Internet service the same way. Senator Hatch and I worked together 
to address this issue in the major Satellite Home Viewers Law passed 
last Congress.
  We authorized a rural loan guarantee program to help facilitate 
deployment in rural areas. That law included a priority for loans that 
offered financing for high-speed Internet access. That is a great tool 
in eliminating the digital divide between urban and rural America.
  So we want to make sure that gets done and done right.
  The job of this Congress is to ensure that the administration gets 
the job done so that those goals are met and the programs we have 
established are fully implemented.
  The ninth circuit's ruling in the Napster case on Monday highlights 
the tensions between new online tools and services and protection of 
intellectual property rights. In the long term, where it counts the 
most, both sides--copyright holders and advocates for advances in new 
technology--can find victories in this ruling.
  Nothing should stop the genius of a Shawn Fanning or those who come 
up with new online technologies like Napster.
  While Napster customers may not initially see it that way, the 
availability of new music and other creative works--and its 
contributions to the vibrancy of our culture and in fueling our 
economy--depends on clearly understood and adequately enforced 
copyright protection. The Court of Appeals has sent the case back to 
the district court to ensure that the rights of creators are protected 
and that the online marketplace is just that, and not a free-for-all.
  The exponential growth of Napster has proven that the Internet works 
well to distribute music, but this case is a warning that copyrights 
may not be ignored when new online services are deployed. The Internet 
can and must serve the needs not only of Internet users and innovators 
of new technologies, but also of artists, songwriters, performers and 
copyright holders. The Judiciary Committee should examine this issue 
closely to ensure that our laws are working well to meet all these 
needs.
  Last Congress I introduced the Drug Competition Act of 2000, S. 2993, 
to give the Justice Department and the FTC the information they need to 
prevent anticompetitive practices which delay the availability of low-
cost generic prescription drugs. I intend to re-introduce this bill 
soon and work with my colleagues to enact it this year to help assure 
that the availability of lower cost prescription drugs.
  I noted upon passage of the Digital Millennium Copyright Act in 1998 
that there was not enough time before the end of that Congress to give 
due consideration to the issue of database protection, and that I hoped 
the Senate Judiciary Committee would hold hearings and consider 
database protection legislation. Despite the passage of time, the 
Judiciary Committee has not yet held hearings on this issue.
  I support legal protection against commercial misappropriation of 
collections of information, but am sensitive to the concerns raised by 
the libraries, certain educational institutions, and the scientific 
community. This is a complex and important matter that I look forward 
to considering in this Congress.
  Product identification codes provide a means for manufacturers to 
track their goods, which can be important to protect consumers in case 
of defective,

[[Page S1380]]

tainted, or harmful products and to implement product recalls. 
Defacing, removing, or tampering with product identification codes can 
thwart these tracking efforts, with potential safety consequences for 
American consumers. We should examine the scope of, and legislative 
solutions to remedy, this problem.
  Senator Hatch and I worked together to pass cybersquatting 
legislation in the last Congress to protect registered trademarks 
online. This is an issue that has concerned me since the Congress 
passed the Federal Trademark Dilution Act of 1995, when I expressed my 
hope that the new law would ``help stem the use of deceptive Internet 
addresses taken by those who are choosing marks that are associated 
with the products and reputations of others.'' (Congressional Record, 
December 29, 1995, page S19312).
  The Internet Corporation for Assigned Names and Numbers (I-CANN) has 
recently added new top-level domain names and is negotiating contracts 
with the new registries. Senator Hatch and I followed these 
developments closely and together wrote to then Secretary of Commerce 
Norman Mineta on December 15, 2000, for the Commerce Department's 
assurances that the introduction of the new TLDs be achieved in a 
manner that minimizes the abuses of trademark rights. The Judiciary 
Committee has an important oversight role to play in this area.
  We also will need to pay careful attention to the increasing 
consolidation in the airline, telecommunications, petroleum, electric, 
agriculture, and other sectors of the economy to ensure that consumers 
are protected from anticompetitive practices. The Judiciary Committee 
has already held one hearing on airline consolidation in this Congress 
and I stand ready to work with my colleagues on legislation to address 
competition problems.
  I have already joined with the Democratic leader and several of my 
colleagues on the Securing a Future for Independent Agriculture Act, S. 
20, to address the growing serious problem of consolidation in the 
agriculture processing sector. In addition, we need to carefully 
monitor international efforts to harmonize competition law to ensure 
that American companies and consumers are fairly treated and that our 
antitrust policies are not weakened.
  This bill represents a good start on the work before the Senate 
Judiciary Committee to update American intellectual property law to 
ensure that it serves to advance and protect American interests both 
here and abroad. The list of addititional copyright, patent, and 
trademark issues that require our attention shows that we have a lot 
more work to do.

                               Exhibit 1

                                           Register of Copyrights,


                                          Library of Congress,

                                Washington, DC, February 12, 2001.
     Hon. Patrick J. Leahy,
     U.S. Senate, Committee on the Judiciary,
     Washington, DC.
       Dear Senator Leahy: I understand that you will be 
     sponsoring legislation in this Congress that will incorporate 
     last year's proposed Copyright Technical Corrections Act of 
     2000, H.R. 5106.
       The Copyright Office proposed the technical corrections 
     that were included in H.R. 5106 to address some minor 
     drafting errors in the Intellectual Property and 
     Communications Omnibus Reform Act of 1999 and to correct some 
     other technical discrepancies in Title 17. None of these 
     proposed corrections are substantive.
       I believe that it is important that the provisions of Title 
     17 be clear, and therefore I thank you for your leadership on 
     this legislation and hope that you will be successful in 
     obtaining its passage.
           Sincerely,
                                                  Marybeth Peters,
                                           Register of Copyrights.

  Mr. HATCH. Madam President, how much time remains?
  The PRESIDING OFFICER. The Senator from Utah has 15 minutes 18 
seconds.
  Mr. HATCH. Madam President, I will tell everybody I do not intend to 
use that whole time. I will use part of it.


             The Ninth Circuit Decision in the Napster case

  Mr. HATCH. Madam President, I would like to take a few moments while 
we are on the subject of copyright law to address the Ninth Circuit 
Court of Appeals' long-awaited decision in the Napster case. I have 
been considering the opinion for the last few days, and it may be some 
time before all of us grasp its full implications. I believe the 
Judiciary Committee will need to hold hearings on the decision's 
possible implications and to get an update on developments in the 
online music market. I will consult with my ranking member and other 
interested parties, and will likely look into the matter in the coming 
weeks.
  As I have considered the case over the last couple of days, I have 
been troubled by the possible practical problems that may arise from 
this decision. I am troubled as a strong supporter and prime author of 
much of our copyright law and intellectual property rights.
  By ordering the lower court to impose a preliminary injunction--
before a trial on the merits, mind you--on this service that had 
developed a community of over 50 million music fans, it could have the 
effect of shutting down Napster entirely, depriving more than 50 
million consumers access to a music service they have enjoyed. The 
Napster community represents a huge consumer demand for the kind of 
online music services Napster, rightly or wrongly, has offered and, to 
date, the major record labels have been unable to satisfy. Now, I 
understand that the labels have been working hard to get offerings 
online, and I have seen some projects beginning recently. I have been 
promised consumer roll-outs this year. But these offerings have been 
slow in coming and have not been broadly deployed as of yet. I hope 
deployment will be speeded up to meet the unsatisfied demand that may 
be caused by interruptions in Napster service as the litigation 
continues through trial on the merits and appeals.
  I am longtime advocate of strong intellectual property laws. There is 
something in our legal system called copyright, and the principle 
underlying copyright is a sound one. I believe that artists Must be 
compensated for their creativity. And I believe that Napster as it 
currently operates, threatens this principle. I authored Digital 
Millennium Copyright Act, which has ensured that, as a general matter, 
copyright law should apply to the Internet. I am proud of my work in 
furtherance of that Act. I have mentioned Senator Leahy in particular, 
and there others as well.
  Yet, I also believe that the compensation principle underlying 
copyright can coexist--and has in fact coexisted--with society's 
evolving technologies for generations. And, in each case this 
coexistence has benefited both the copyright owner and the consumer, in 
what you might call an expansion of the pie, in other words.
  So let's turn to the present controversy. It might be helpful to 
review some facts. In the span of about one and a half years, Napster 
has seen its client software downloaded more than 62 million times. 
Over 8 million people a day log onto the Napster service. At any one 
time there may be as many as 1.7 million people simultaneously using 
the service. It is, quite simply, a virtual community of unprecedented 
reach and scale. It is the most popular application in the history of 
the Internet and, I have to say, in the history of music.
  It is also free and, unfortunately, according to the court, it is 
probably facilitating copyright infringement. The major labels, which 
account for over 80 percent of the CD's sold in this country, is 
rightly shaken by the Napster phenomenon. Although the industry saw its 
sales increase by 4.4 percent in the year 2000, it believes it would 
have sold more CD's had it not been for Napster. And the district court 
and Court of Appeals agreed with them. The labels have, as is their 
right under the laws--many of which I have authored--pursued legal 
redress through out judicial system. Were I in their shoes, I question 
whether I would have taken a different course of action.
  Now the parties have brought their dispute to the point where the 
erosion of the copyright laws might be the frightening outcome.
  I am particularly troubled because, if the popular Napster service, 
which has a relationship with one of the major record companies, 
Bertelsmann, is shut down, and no licensed online services exist to 
fill this consumer demand, I fear that this consumer demand will be

[[Page S1381]]

filled by Napster clones, particularly ones like Gnutella or Freenet, 
which have no central server, and no central business office with which 
to negotiate a marketplace licensing arrangement. Such a development 
would further undermine the position of copyright law online, and the 
position of artists in the new digital world that the Internet is 
developing.

  Furthermore, if past experience is any indication, I would expect 
that my colleagues, like me, will be contacted by the over 50 million 
Napster fans who oppose the injunction and fear the demise of Napster. 
This may prompt a legislative response. I know that people in Congress 
are weighing various legislative solutions, some intriguing, some 
troubling and counter to the pubic interest.
  Some of these responses could strike the important intellectual 
property rights of artists and copyright owners online entirely, 
undoing the carefully balanced development I have tried to foster over 
the years, and possibly harming consumers as well as creators in the 
long run.
  I guess my feeling about this Ninth Circuit decision is a gnawing 
concern that this legal victory for the record labels may prove pyrrhic 
or short-sighted from a policy perspective. Some have suggested that 
the labels merely wished to establish a legal precedent and then would 
be willing to work on negotiating licenses. Well, it seems to me that 
now might be a good time to get those deals done, for the good of music 
fans, and for the good of the copyright industries and the artists they 
represent.
  I have long been an advocate for strong intellectual property rights 
protection and enforcement. I have urged the labels and composers and 
publishers working out synergistic arrangements with online music 
distributors and Internet technologist that will serve the artists and 
their audience. Such synergy is possible. I was pleased when 
Bertelsmann took the initiative in harnessing the consumer demand 
evidenced by Napster and decided to work cooperatively together to 
develop a service that would benefit both of them and those they seek 
to serve, the artists and music fans. I again urge the other major 
music industry players to take significant steps toward this end, and 
again, I think now is a good time to do it. I have recently discussed 
my views with some of the interested parties, and I believe there is 
some interest in working this out for the benefit of all parties, 
including consumers and creators. I stand ready, willing and able to 
try to help them in this matter.
  Last July, the Committee held its first of two hearings on the 
subject. At this hearing, I was joined by my colleague and friend, the 
distinguished ranking member and former chairman of the Judiciary 
Committee, Senator Leahy. The two of us encouraged a marketplace 
resolution to the Napster, and the other, digital music controversies.
  I think working together in the marketplace cooperatively will lead 
to the best result for all parties, the record labels, the online music 
services, the artists and the music fans. I hope the focus will be on 
the latter two. After all, without artists, there is nothing to convey, 
and without the fans, there is no one to convey it to. I think keeping 
the focus on the artists and the audience can help the technologists 
and the copyright industries find a way for all to flourish. And I hope 
this opportunity is taken before it is lost.
  I hope this opportunity is taken before it is lost. I wanted to make 
these remarks on the floor, and I hope we can resolve these problems in 
a way that benefits artists, consumers, publishers, and others who are 
interested in this matter. I think if we get together and work this 
out, it will be in the best interests of everybody.
  I am prepared to yield my time.
  Mr. LEAHY. Madam President, I yield whatever time remains.
  Mr. HATCH. I yield my time as well. We can proceed.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  The PRESIDING OFFICER (Mr. Thompson). The bill having been read for 
the third time, the question is, Shall the bill pass? The yeas and nays 
have been ordered, and the clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Kentucky (Mr. Bunning 
and the Senator from Idaho (Mr. Crapo) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Kentucky (Mr. Bunning) would vote ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 12 Leg.]

                                YEAS--98

     Akaka
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Burns
     Byrd
     Campbell
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Cochran
     Collins
     Conrad
     Corzine
     Craig
     Daschle
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham
     Gramm
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stabenow
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--2

     Bunning
     Crapo
       
  The bill (S. 320) was passed, as follows:

                                 S. 320

       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 ``Intellectual Property and 
     High Technology Technical Amendments Act of 2001''.

     SEC. 2. OFFICERS AND EMPLOYEES.

       (a) Renaming of Officers.--(1) Title 35, United States 
     Code, is amended--
       (A) by striking ``Director'' each place it appears and 
     inserting ``Commissioner''; and
       (B) by striking ``Director's'' each place it appears and 
     inserting ``Commissioner's''.
       (2) The Act of July 5, 1946 (commonly referred to as the 
     ``Trademark Act of 1946''; 15 U.S.C. 1051 et seq.) is amended 
     by striking ``Director'' each place it appears and inserting 
     ``Commissioner''.
       (3)(A) Title 35, United States Code, is amended by striking 
     ``Commissioner for Patents'' each place it appears and 
     inserting ``Assistant Commissioner for Patents''.
       (B) Section 3(b)(2) of title 35, United States Code, is 
     amended--
       (i) in the paragraph heading, by striking ``Commissioners'' 
     and inserting ``Assistant commissioners'';
       (ii) in subparagraph (A), in the last sentence--
       (I) by striking ``a Commissioner'' and inserting ``an 
     Assistant Commissioner''; and
       (II) by striking ``the Commissioner'' and inserting ``the 
     Assistant Commissioner'';
       (iii) in subparagraph (B)--
       (I) by striking ``Commissioners'' each place it appears and 
     inserting ``Assistant Commissioners'';
       (II) by striking ``Commissioners' '' each place it appears 
     and inserting ``Assistant Commissioners' ''; and
       (iv) in subparagraph (C), by striking ``Commissioners'' and 
     inserting ``Assistant Commissioners''.
       (C) Section 3(f) of title 35, United States Code, is 
     amended in paragraphs (2) and (3), by striking ``the 
     Commissioner'' each place it appears and inserting ``the 
     Assistant Commissioner''.
       (D) Section 13 of title 35, United States Code, is 
     amended--
       (i) by striking ``Commissioner of'' each place it appears 
     and inserting ``Assistant Commissioner for''; and
       (ii) by striking ``Commissioners'' and inserting 
     ``Assistant Commissioners''.
       (E) Chapter 17 of title 35, United States Code, is amended 
     by striking ``Commissioner of Patents'' each place it appears 
     and inserting ``Assistant Commissioner for Patents''.
       (F) Section 297 of title 35, United States Code, is amended 
     by striking ``Commissioner of Patents'' each place it appears 
     and inserting ``Commissioner''.
       (4) Title 35, United States Code, is amended by striking 
     ``Commissioner for Trademarks'' each place it appears and 
     inserting ``Assistant Commissioner for Trademarks''.
       (5) Section 5314 of title 5, United States Code, is amended 
     by striking
       ``Under Secretary of Commerce for Intellectual Property and 
     Director of the United States Patent and Trademark Office.''
     and inserting
       ``Under Secretary of Commerce for Intellectual Property and 
     Commissioner of the

[[Page S1382]]

     United States Patent and Trademark Office.''.
       (6)(A) Section 303 of title 35, United States Code, is 
     amended--
       (i) in the section heading by striking ``Director '' and 
     inserting ``Commissioner''; and
       (ii) by striking ``Director's'' and inserting 
     ``Commissioner's''.
       (B) The item relating to section 303 in the table of 
     sections for chapter 30 of title 35, United States Code, is 
     amended by striking ``Director'' and inserting 
     ``Commissioner''.
       (b) Additional Clerical Amendments.--
       (1) The following provisions of law are amended by striking 
     ``Director'' each place it appears and inserting 
     ``Commissioner''.
       (A) Section 9(p)(1)(B) of the Small Business Act (15 U.S.C. 
     638(p)(1)(B).
       (B) Section 19 of the Tennessee Valley Authority Act of 
     1933 (16 U.S.C. 831r).
       (C) Section 182(b)(2)(A) of the Trade Act of 1974 (19 
     U.S.C. 2242(b)(2)(A)).
       (D) Section 302(b)(2)(D) of the Trade Act of 1974 (19 
     U.S.C. 2412(b)(2)(D)).
       (E) Section 702(d) of the Federal Food, Drug, and Cosmetic 
     Act (21 U.S.C. 372(d)).
       (F) Section 1295(a)(4)(B) of title 28, United States Code.
       (G) Section 1744 of title 28, United States Code.
       (H) Section 151 of the Atomic Energy Act of 1954 (42 U.S.C. 
     2181).
       (I) Section 152 of the Atomic Energy Act of 1954 (42 U.S.C. 
     2182).
       (J) Section 305 of the National Aeronautics and Space Act 
     of 1958 (42 U.S.C. 2457).
       (K) Section 12(a) of the Solar Heating and Cooling 
     Demonstration Act of 1974 (42 U.S.C. 5510(a)).
       (L) Section 10(i) of the Trading with the enemy Act (50 
     U.S.C. App. 10(i)).
       (M) Section 4203 of the Intellectual Property and 
     Communications Omnibus Reform Act of 1999, as enacted by 
     section 1000(a)(9) of Public Law 106-113.
       (2) The item relating to section 1744 in the table of 
     sections for chapter 115 of title 28, United States Code, is 
     amended by striking ``generally'' and inserting ``, 
     generally''.
       (c) References.--Any reference in any other Federal law, 
     Executive order, rule, regulation, or delegation of 
     authority, or any document of or pertaining to the Patent and 
     Trademark Office--
       (1) to the Director of the United States Patent and 
     Trademark Office or to the Commissioner of Patents and 
     Trademarks is deemed to refer to the Under Secretary of 
     Commerce for Intellectual Property and Commissioner of the 
     United States Patent and Trademark Office;
       (2) to the Commissioner for Patents is deemed to refer to 
     the Assistant Commissioner for Patents; and
       (3) to the Commissioner for Trademarks is deemed to refer 
     to the Assistant Commissioner for Trademarks.

     SEC. 3. CLARIFICATION OF REEXAMINATION PROCEDURE ACT OF 1999; 
                   TECHNICAL AMENDMENTS.

       (a) Optional Inter Partes Reexamination Procedures.--Title 
     35, United States Code, is amended as follows:
       (1) Section 311 is amended--
       (A) in subsection (a), by striking ``person'' and inserting 
     ``third-party requester''; and
       (B) in subsection (c), by striking ``Unless the requesting 
     person is the owner of the patent, the'' and inserting 
     ``The''.
       (2) Section 312 is amended--
       (A) in subsection (a), by striking the last sentence; and
       (B) by striking ``, if any''.
       (3) Section 314(b)(1) is amended--
       (A) by striking ``(1) This'' and all that follows through 
     ``(2)'' and inserting ``(1)'';
       (B) by striking ``the third-party requester shall receive a 
     copy'' and inserting ``the Office shall send to the third-
     party requester a copy''; and
       (C) by redesignating paragraph (3) as paragraph (2).
       (4) Section 315(c) is amended by striking ``United States 
     Code,''.
       (5) Section 317 is amended--
       (A) in subsection (a), by striking ``patent owner nor the 
     third-party requester, if any, nor privies of either'' and 
     inserting ``third-party requester nor its privies''; and
       (B) in subsection (b), by striking ``United States Code,''.
       (b) Conforming Amendments.--
       (1) Appeal to the board of patent appeals and 
     interferences.--Subsections (a), (b), and (c) of section 134 
     of title 35, United States Code, are each amended by striking 
     ``administrative patent judge'' each place it appears and 
     inserting ``primary examiner''.
       (2) Proceeding on appeal.--Section 143 of title 35, United 
     States Code, is amended by amending the third sentence to 
     read as follows: ``In an ex parte case or any reexamination 
     case, the Commissioner shall submit to the court in writing 
     the grounds for the decision of the Patent and Trademark 
     Office, addressing all the issues involved in the appeal. The 
     court shall, before hearing an appeal, give notice of the 
     time and place of the hearing to the Commissioner and the 
     parties in the appeal.''.
       (c) Clerical Amendments.--
       (1) Section 4604(a) of the Intellectual Property and 
     Communications Omnibus Reform Act of 1999, is amended by 
     striking ``Part 3'' and inserting ``Part III''.
       (2) Section 4604(b) of that Act is amended by striking 
     ``title 25'' and inserting ``title 35''.
       (d) Effective Date.--The amendments made by sections 
     4605(c) and 4605(e) of the Intellectual Property and 
     Communications Omnibus Reform Act, as enacted by section 
     1000(a)(9) of Public Law 106-113, shall apply to any 
     reexamination filed in the United States Patent and Trademark 
     Office on or after the date of the enactment of Public Law 
     106-113.

     SEC. 4. PATENT AND TRADEMARK EFFICIENCY ACT AMENDMENTS.

       (a) Deputy Commissioner.--
       (1) Section 17(b) of the Act of July 5, 1946 (commonly 
     referred to as the ``Trademark Act of 1946'') (15 U.S.C. 
     1067(b)), is amended by inserting ``the Deputy 
     Commissioner,'' after ``Commissioner,''.
       (2) Section 6(a) of title 35, United States Code, is 
     amended by inserting ``the Deputy Commissioner,'' after 
     ``Commissioner,''.
       (b) Public Advisory Committees.--Section 5 of title 35, 
     United States Code, is amended--
       (1) in subsection (i), by inserting ``, privileged,'' after 
     ``personnel''; and
       (2) by adding at the end the following new subsection:
       ``(j) Inapplicability of Patent Prohibition.--Section 4 
     shall not apply to voting members of the Advisory 
     Committees.''.
       (c) Miscellaneous.--Section 153 of title 35, United States 
     Code, is amended by striking ``and attested by an officer of 
     the Patent and Trademark Office designated by the 
     Commissioner,''.

     SEC. 5. DOMESTIC PUBLICATION OF FOREIGN FILED PATENT 
                   APPLICATIONS ACT OF 1999 AMENDMENTS.

       Section 154(d)(4)(A) of title 35, United States Code, as in 
     effect on November 29, 2000, is amended--
       (1) by striking ``on which the Patent and Trademark Office 
     receives a copy of the'' and inserting ``of''; and
       (2) by striking ``international application'' the last 
     place it appears and inserting ``publication''.

     SEC. 6. DOMESTIC PUBLICATION OF PATENT APPLICATIONS PUBLISHED 
                   ABROAD.

       Subtitle E of title IV of the Intellectual Property and 
     Communications Omnibus Reform Act of 1999, as enacted by 
     section 1000(a)(9) of Public Law 106-113, is amended as 
     follows:
       (1) Section 4505 is amended to read as follows:

     ``SEC. 4505. PRIOR ART EFFECT OF PUBLISHED APPLICATIONS.

       ``Section 102(e) of title 35, United States Code, is 
     amended to read as follows:
       `` `(e) the invention was described in (1) an application 
     for patent, published under section 122(b), by another filed 
     in the United States before the invention by the applicant 
     for patent or (2) a patent granted on an application for 
     patent by another filed in the United States before the 
     invention by the applicant for patent, except that an 
     international application filed under the treaty defined in 
     section 351(a) shall have the effects for the purposes of 
     this subsection of an application filed in the United States 
     if and only if the international application designated the 
     United States and was published under Article 21(2) of such 
     treaty in the English language; or' ''.
       (2) Section 4507 is amended--
       (A) in paragraph (1), by striking ``Section 11'' and 
     inserting ``Section 10'';
       (B) in paragraph (2), by striking ``Section 12'' and 
     inserting ``Section 11''.
       (C) in paragraph (3), by striking ``Section 13'' and 
     inserting ``Section 12'';
       (D) in paragraph (4), by striking ``12 and 13'' and 
     inserting ``11 and 12'';
       (E) in section 374 of title 35, United States Code, as 
     amended by paragraph (10), by striking ``confer the same 
     rights and shall have the same effect under this title as an 
     application for patent published'' and inserting ``be deemed 
     a publication''; and
       (F) by adding at the end the following:
       ``(12) The item relating to section 374 in the table of 
     contents for chapter 37 of title 35, United States Code, is 
     amended to read as follows:

``374. Publication of international application.''.
       (3) Section 4508 is amended to read as follows:

     ``SEC. 4508. EFFECTIVE DATE.

       ``Except as otherwise provided in this section, sections 
     4502 through 4507, and the amendments made by such sections, 
     shall take effect on November 29, 2000, and shall apply only 
     to applications (including international applications 
     designating the United States) filed on or after that date. 
     The amendments made by sections 4504 and 4505 shall 
     additionally apply to any pending application filed before 
     November 29, 2000, if such pending application is published 
     pursuant to a request of the applicant under such procedures 
     as may be established by the Commissioner. If an application 
     is filed on or after November 29, 2000, or is published 
     pursuant to a request from the applicant, and the application 
     claims the benefit of one or more prior-filed applications 
     under section 119(e), 120, or 365(c) of title 35, United 
     States Code, then the amendment made by section 4505 shall 
     apply to the prior-filed application in determining the 
     filing date in the United States of the application.''.

     SEC. 7. MISCELLANEOUS CLERICAL AMENDMENTS.

       (a) Amendments to Title 35.--The following provisions of 
     title 35, United States Code, are amended:
       (1) Section 2(b) is amended in paragraphs (2)(B) and 
     (4)(B), by striking ``, United States Code''.
       (2) Section 3 is amended--
       (A) in subsection (a)(2)(B), by striking ``United States 
     Code,'';

[[Page S1383]]

       (B) in subsection (b)(2)--
       (i) in the first sentence of subparagraph (A), by striking 
     ``, United States Code'';
       (ii) in the first sentence of subparagraph (B)--

       (I) by striking ``United States Code,''; and
       (II) by striking ``, United States Code'';

       (iii) in the second sentence of subparagraph (B)--

       (I) by striking ``United States Code,''; and
       (II) by striking ``, United States Code.'' and inserting a 
     period;

       (iv) in the last sentence of subparagraph (B), by striking 
     ``, United States Code''; and
       (v) in subparagraph (C), by striking ``, United States 
     Code''; and
       (C) in subsection (c)--
       (i) in the subsection caption, by striking ``, United 
     States Code''; and
       (ii) by striking ``United States Code,''.
       (3) Section 5 is amended in subsections (e) and (g), by 
     striking ``, United States Code'' each place it appears.
       (4) The table of chapters for part I is amended in the item 
     relating to chapter 3, by striking ``before'' and inserting 
     ``Before''.
       (5) The item relating to section 21 in the table of 
     contents for chapter 2 is amended to read as follows:

``21. Filing date and day for taking action.''.
       (6) The item relating to chapter 12 in the table of 
     chapters for part II is amended to read as follows:

``12. Examination of Application.................................131''.
       (7) The item relating to section 116 in the table of 
     contents for chapter 11 is amended to read as follows:

``116. Inventors.''.
       (8) Section 154(b)(4) is amended by striking ``, United 
     States Code,''.
       (9) Section 156 is amended--
       (A) in subsection (b)(3)(B), by striking ``paragraphs'' and 
     inserting ``paragraph'';
       (B) in subsection (d)(2)(B)(i), by striking ``below the 
     office'' and inserting ``below the Office''; and
       (C) in subsection (g)(6)(B)(iii), by striking 
     ``submittted'' and inserting ``submitted''.
       (10) The item relating to section 183 in the table of 
     contents for chapter 17 is amended by striking ``of'' and 
     inserting ``to''.
       (11) Section 185 is amended by striking the second period 
     at the end of the section.
       (12) Section 201(a) is amended--
       (A) by striking ``United States Code,''; and
       (B) by striking ``5, United States Code.'' and inserting 
     ``5.''.
       (13) Section 202 is amended--
       (A) in subsection (b)(4), by striking ``last paragraph of 
     section 203(2)'' and inserting ``section 203(b)''; and
       (B) in subsection (c)--
       (i) in paragraph (4) by striking ``rights;'' and inserting 
     ``rights,''; and
       (ii) in paragraph (5) by striking ``of the United States 
     Code''.
       (14) Section 203 is amended--
       (A) in paragraph (2)--
       (i) by striking ``(2)'' and inserting ``(b)'';
       (ii) by striking the quotation marks and comma before ``as 
     appropriate''; and
       (iii) by striking ``paragraphs (a) and (c)'' and inserting 
     ``paragraphs (1) and (3) of subsection (a)''; and
       (B) in the first paragraph--
       (i) by striking ``(a)'', ``(b)'', ``(c)'', and (d)'' and 
     inserting ``(1)'', ``(2)'', ``(3)'', and (4)'', respectively; 
     and
       (ii) by striking ``(1.'' and inserting ``(a)''.
       (15) Section 209 is amended in subsections (a) and (f)(1), 
     by striking ``of the United States Code''.
       (16) Section 210 is amended--
       (A) in subsection (a)--
       (i) in paragraph (11), by striking ``5901'' and inserting 
     ``5908''; and
       (ii) in paragraph (20) by striking ``178(j)'' and inserting 
     ``178j''; and
       (B) in subsection (c)--
       (i) by striking ``paragraph 202(c)(4)'' and inserting 
     ``section 202(c)(4)''; and
       (ii) by striking ``title..'' and inserting ``title.''.
       (17) The item relating to chapter 29 in the table of 
     chapters for part III is amended by inserting a comma after 
     ``Patent''.
       (18) The item relating to section 256 in the table of 
     contents for chapter 25 is amended to read as follows:

``256. Correction of named inventor.''.
       (19) Section 294 is amended--
       (A) in subsection (b), by striking ``United States Code,''; 
     and
       (B) in subsection (c), in the second sentence by striking 
     ``court to'' and inserting ``court of''.
       (20)(A) The item relating to section 374 in the table of 
     contents for chapter 37 is amended to read as follows:

``374. Publication of international application.''.
       (B) The amendment made by subparagraph (A) shall take 
     effect on November 29, 2000.
       (21) Section 371(b) is amended by adding at the end a 
     period.
       (22) Section 371(d) is amended by adding at the end a 
     period.
       (23) Paragraphs (1), (2), and (3) of section 376(a) are 
     each amended by striking the semicolon and inserting a 
     period.
       (b) Other Amendments.--
       (1) Section 4732(a) of the Intellectual Property and 
     Communications Omnibus Reform Act of 1999 is amended--
       (A) in paragraph (9)(A)(ii), by inserting ``in subsection 
     (b),'' after ``(ii)''; and
       (B) in paragraph (10)(A), by inserting after ``title 35, 
     United States Code,'' the following: ``other than sections 1 
     through 6 (as amended by chapter 1 of this subtitle),''.
       (2) Section 4802(1) of that Act is amended by inserting 
     ``to'' before ``citizens''.
       (3) Section 4804 of that Act is amended--
       (A) in subsection (b), by striking ``11(a)'' and inserting 
     ``10(a)''; and
       (B) in subsection (c), by striking ``13'' and inserting 
     ``12''.
       (4) Section 4402(b)(1) of that Act is amended by striking 
     ``in the fourth paragraph''.

     SEC. 8. TECHNICAL CORRECTIONS IN TRADEMARK LAW.

       (a) Award of Damages.--Section 35(a) of the Act of July 5, 
     1946 (commonly referred to as the ``Trademark Act of 1946'') 
     (15 U.S.C. 1117(a)), is amended by striking ``a violation 
     under section 43(a), (c), or (d),'' and inserting ``a 
     violation under section 43(a) or (d),''.
       (b) Additional Technical Amendments.--The Trademark Act of 
     1946 is further amended as follows:
       (1) Section 1(d)(1) (15 U.S.C. 1051(d)(1)) is amended in 
     the first sentence by striking ``specifying the date of the 
     applicant's first use'' and all that follows through the end 
     of the sentence and inserting ``specifying the date of the 
     applicant's first use of the mark in commerce and those goods 
     or services specified in the notice of allowance on or in 
     connection with which the mark is used in commerce.''.
       (2) Section 1(e) (15 U.S.C. 1051(e)) is amended to read as 
     follows:
       ``(e) If the applicant is not domiciled in the United 
     States the applicant may designate, by a document filed in 
     the United States Patent and Trademark Office, the name and 
     address of a person resident in the United States on whom may 
     be served notices or process in proceedings affecting the 
     mark. Such notices or process may be served upon the person 
     so designated by leaving with that person or mailing to that 
     person a copy thereof at the address specified in the last 
     designation so filed. If the person so designated cannot be 
     found at the address given in the last designation, or if the 
     registrant does not designate by a document filed in the 
     United States Patent and Trademark Office the name and 
     address of a person resident in the United States on whom may 
     be served notices or process in proceedings affecting the 
     mark, such notices or process may be served on the 
     Commissioner.'';
       (3) Section 8(f) (15 U.S.C. 1058(f)) is amended to read as 
     follows:
       ``(f) If the registrant is not domiciled in the United 
     States, the registrant may designate, by a document filed in 
     the United States Patent and Trademark Office, the name and 
     address of a person resident in the United States on whom may 
     be served notices or process in proceedings affecting the 
     mark. Such notices or process may be served upon the person 
     so designated by leaving with that person or mailing to that 
     person a copy thereof at the address specified in the last 
     designation so filed. If the person so designated cannot be 
     found at the address given in the last designation, or if the 
     registrant does not designate by a document filed in the 
     United States Patent and Trademark Office the name and 
     address of a person resident in the United States on whom may 
     be served notices or process in proceedings affecting the 
     mark, such notices or process may be served on the 
     Commissioner.'';
       (4) Section 9(c) (15 U.S.C. 1059(c)) is amended to read as 
     follows:
       ``(c) If the registrant is not domiciled in the United 
     States the registrant may designate, by a document filed in 
     the United States Patent and Trademark Office, the name and 
     address of a person resident in the United States on whom may 
     be served notices or process in proceedings affecting the 
     mark. Such notices or process may be served upon the person 
     so designated by leaving with that person or mailing to that 
     person a copy thereof at the address specified in the last 
     designation so filed. If the person so designated cannot be 
     found at the address given in the last designation, or if the 
     registrant does not designate by a document filed in the 
     United States Patent and Trademark Office the name and 
     address of a person resident in the United States on whom may 
     be served notices or process in proceedings affecting the 
     mark, such notices or process may be served on the 
     Commissioner.'';
       (5) Subsections (a) and (b) of section 10 (15 U.S.C. 
     1060(a) and (b)) are amended to read as follows:
       ``(a)(1) A registered mark or a mark for which an 
     application to register has been filed shall be assignable 
     with the good will of the business in which the mark is used, 
     or with that part of the good will of the business connected 
     with the use of and symbolized by the mark. Notwithstanding 
     the preceding sentence, no application to register a mark 
     under section 1(b) shall be assignable prior to the filing of 
     an amendment under section 1(c) to bring the application into 
     conformity with section 1(a) or the filing of the verified 
     statement of use under section 1(d), except for an assignment 
     to a successor to the business of the applicant, or portion 
     thereof, to which the mark pertains, if that business is 
     ongoing and existing.
       ``(2) In any assignment authorized by this section, it 
     shall not be necessary to include the good will of the 
     business connected with the use of and symbolized by any 
     other mark used in the business or by the name or style under 
     which the business is conducted.
       ``(3) Assignments shall be by instruments in writing duly 
     executed. Acknowledgment shall be prima facie evidence of the 
     execution of an assignment, and when the prescribed 
     information reporting the assignment is recorded in the 
     United States Patent

[[Page S1384]]

     and Trademark Office, the record shall be prima facie 
     evidence of execution.
       ``(4) An assignment shall be void against any subsequent 
     purchaser for valuable consideration without notice, unless 
     the prescribed information reporting the assignment is 
     recorded in the United States Patent and Trademark Office 
     within 3 months after the date of the assignment or prior to 
     the subsequent purchase.
       ``(5) The United States Patent and Trademark Office shall 
     maintain a record of information on assignments, in such form 
     as may be prescribed by the Commissioner.
       ``(b) An assignee not domiciled in the United States may 
     designate by a document filed in the United States Patent and 
     Trademark Office the name and address of a person resident in 
     the United States on whom may be served notices or process in 
     proceedings affecting the mark. Such notices or process may 
     be served upon the person so designated by leaving with that 
     person or mailing to that person a copy thereof at the 
     address specified in the last designation so filed. If the 
     person so designated cannot be found at the address given in 
     the last designation, or if the assignee does not designate 
     by a document filed in the United States Patent and Trademark 
     Office the name and address of a person resident in the 
     United States on whom may be served notices or process in 
     proceedings affecting the mark, such notices or process may 
     be served upon the Commissioner.'';
       (7) Section 23(c) (15 U.S.C. 1091(c)) is amended by 
     striking the second comma after ``numeral''.
       (8) Section 33(b)(8) (15 U.S.C. 1115(b)(8)) is amended by 
     aligning the text with paragraph (7).
       (9) Section 34(d)(1)(A) (15 U.S.C. 1116(d)(1)(A)) is 
     amended by striking ``section 110'' and all that follows 
     through ``(36 U.S.C. 380)'' and inserting ``section 220506 of 
     title 36, United States Code,''.
       (10) Section 34(d)(1)(B)(ii) (15 U.S.C. 1116(d)(1)(B)(ii)) 
     is amended by striking ``section 110'' and all that follows 
     through ``(36 U.S.C. 380)'' and inserting ``section 220506 of 
     title 36, United States Code''.
       (11) Section 34(d)(11) is amended by striking ``6621 of the 
     Internal Revenue Code of 1954'' and inserting ``6621(a)(2) of 
     the Internal Revenue Code of 1986''.
       (12) Section 35(b) (15 U.S.C. 1117(b)) is amended--
       (A) by striking ``section 110'' and all that follows 
     through ``(36 U.S.C. 380)'' and inserting ``section 220506 of 
     title 36, United States Code,''; and
       (B) by striking ``6621 of the Internal Revenue Code of 
     1954'' and inserting ``6621(a)(2) of the Internal Revenue 
     Code of 1986''.
       (13) Section 44(e) (15 U.S.C. 1126(e)) is amended by 
     striking ``a certification'' and inserting ``a true copy, a 
     photocopy, a certification,''.

     SEC. 9. PATENT AND TRADEMARK FEE CLERICAL AMENDMENT.

       The Patent and Trademark Fee Fairness Act of 1999 (113 
     Stat. 1537-546 et seq.), as enacted by section 1000(a)(9) of 
     Public Law 106-113, is amended in section 4203, by striking 
     ``111(a)'' and inserting ``1113(a)''.

     SEC. 10. COPYRIGHT RELATED CORRECTIONS TO 1999 OMNIBUS REFORM 
                   ACT.

       Title I of the Intellectual Property and Communications 
     Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) 
     of Public Law 106-113, is amended as follows:
       (1) Section 1007 is amended--
       (A) in paragraph (2), by striking ``paragraph (2)'' and 
     inserting ``paragraph (2)(A)''; and
       (B) in paragraph (3), by striking ``1005(e)'' and inserting 
     ``1005(d)''.
       (2) Section 1006(b) is amended by striking 
     ``119(b)(1)(B)(iii)'' and inserting ``119(b)(1)(B)(ii)''.
       (3)(A) Section 1006(a) is amended--
       (i) in paragraph (1), by adding ``and'' after the 
     semicolon;
       (ii) by striking paragraph (2); and
       (iii) by redesignating paragraph (3) as paragraph (2).
       (B) Section 1011(b)(2)(A) is amended to read as follows:
       ``(A) in paragraph (1), by striking `primary transmission 
     made by a superstation and embodying a performance or display 
     of a work' and inserting `performance or display of a work 
     embodied in a primary transmission made by a superstation or 
     by the Public Broadcasting Service satellite feed';''.

     SEC. 11. AMENDMENTS TO TITLE 17, UNITED STATES CODE.

       Title 17, United States Code, is amended as follows:
       (1) Section 119(a)(6) is amended by striking ``of 
     performance'' and inserting ``of a performance''.
       (2)(A) The section heading for section 122 is amended by 
     striking ``rights; secondary'' and inserting ``rights: 
     Secondary''.
       (B) The item relating to section 122 in the table of 
     contents for chapter 1 is amended to read as follows:

``122. Limitations on exclusive rights: Secondary transmissions by 
              satellite carriers within local markets.''.
       (3)(A) The section heading for section 121 is amended by 
     striking ``reproduction'' and inserting ``Reproduction''.
       (B) The item relating to section 121 in the table of 
     contents for chapter 1 is amended by striking 
     ``reproduction'' and inserting ``Reproduction''.
       (4)(A) Section 106 is amended by striking ``107 through 
     121'' and inserting ``107 through 122''.
       (B) Section 501(a) is amended by striking ``106 through 
     121'' and inserting ``106 through 122''.
       (C) Section 511(a) is amended by striking ``106 through 
     121'' and inserting ``106 through 122''.
       (5) Section 101 is amended--
       (A) by moving the definition of ``computer program'' so 
     that it appears after the definition of ``compilation''; and
       (B) by moving the definition of ``registration'' so that it 
     appears after the definition of ``publicly''.
       (6) Section 110(4)(B) is amended in the matter preceding 
     clause (i) by striking ``conditions;'' and inserting 
     ``conditions:''.
       (7) Section 118(b)(1) is amended in the second sentence by 
     striking ``to it''.
       (8) Section 119(b)(1)(A) is amended--
       (A) by striking ``transmitted'' and inserting 
     ``retransmitted''; and
       (B) by striking ``transmissions'' and inserting 
     ``retransmissions''.
       (9) Section 203(a)(2) is amended--
       (A) in subparagraph (A)--
       (i) by striking ``(A) the'' and inserting ``(A) The''; and
       (ii) by striking the semicolon at the end and inserting a 
     period;
       (B) in subparagraph (B)--
       (i) by striking ``(B) the'' and inserting ``(B) The''; and
       (ii) by striking the semicolon at the end and inserting a 
     period; and
       (C) in subparagraph (C), by striking ``(C) the'' and 
     inserting ``(C) The''.
       (10) Section 304(c)(2) is amended--
       (A) in subparagraph (A)--
       (i) by striking ``(A) the'' and inserting ``(A) The''; and
       (ii) by striking the semicolon at the end and inserting a 
     period;
       (B) in subparagraph (B)--
       (i) by striking ``(B) the'' and inserting ``(B) The''; and
       (ii) by striking the semicolon at the end and inserting a 
     period; and
       (C) in subparagraph (C), by striking ``(C) the'' and 
     inserting ``(C) The''.
       (11) The item relating to section 903 in the table of 
     contents for chapter 9 is amended by striking ``licensure'' 
     and inserting ``licensing''.

     SEC. 12. OTHER COPYRIGHT RELATED TECHNICAL AMENDMENTS.

       (a) Amendment to Title 18.--Section 2319(e)(2) of title 18, 
     United States Code, is amended by striking ``107 through 
     120'' and inserting ``107 through 122''.
       (b) Standard Reference Data.--(1) Section 105(f) of Public 
     Law 94-553 is amended by striking ``section 290(e) of title 
     15'' and inserting ``section 6 of the Standard Reference Data 
     Act (15 U.S.C. 290e)''.
       (2) Section 6(a) of the Standard Reference Data Act (15 
     U.S.C. 290e) is amended by striking ``Notwithstanding'' and 
     all that follows through ``United States Code,'' and 
     inserting ``Notwithstanding the limitations under section 105 
     of title 17, United States Code,''.

  The PRESIDING OFFICER. The Senator from Mississippi, Mr. Cochran, is 
recognized.
  Mr. COCHRAN. Mr. President, I ask unanimous consent that I may 
proceed for up to 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________