[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
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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
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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.
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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,
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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
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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.
____________________