[Congressional Record Volume 151, Number 5 (Tuesday, January 25, 2005)]
[Senate]
[Pages S494-S502]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. HATCH (for himself, Mr. Leahy, Mr. Cornyn, and Mrs.
Feinstein):
S. 167. A bill to provide for the protection of intellectual property
rights, and for other purposes; to the Committee on the Judiciary.
Mr. HATCH. Mr. President, I rise today to introduce the Family
Entertainment and Copyright Act of 2005. This important legislation
consists of a package of smaller intellectual property bills that the
House and Senate have been working to enact since last Congress. This
legislation passed the Senate not once, but twice, during the waning
days of the last Congress. Unfortunately, though, it was doomed by a
non-germane amendment unrelated to intellectual property law. My hope
is that we can work together this Congress to avoid this type of
pitfall, and I commit to work with other members to do so.
Before beginning my substantive discussion of the bill, I would like
to thank my colleagues Senators Leahy, Cornyn, and Feinstein for their
ongoing efforts on this legislation. Just as it was last year, this
legislation is a group effort, and I want to take care to recognize the
contributions and their excellent work along with that of
Representatives Sensenbrenner, Smith, Berman, and Conyers in the House.
Before going into a title-by-title discussion of the bill, I would
like to express my particular support for the Family Movie Act, which
has been included in this legislation. Chairman Lamar Smith and I
worked on this bill last Congress. It's important legislation both to
parents who want the ability to use new technologies to help shield
their families from inappropriate content as well as the technology
companies, such as ClearPlay in my home State of Utah, that are working
to develop these technologies. The Family Movie Act will give parents
more say over what their children see, without limiting the creative
control of directors and movie studios.
Title I of this Act, the Artists' Rights and Theft Prevention Act of
2005, (the ART Act), contains a slightly modified version of S. 1932,
authored by Senators Cornyn and Feinstein in the 108th Congress. This
bill will close two significant gaps in our copyright laws that are
feeding some of the piracy now rampant on the Internet.
First, it criminalizes attempts to record movies off of theater
screens. These camcorded copies of new movies now appear on filesharing
networks almost contemporaneously with the theatrical release of a
film. Several States have already taken steps to criminalize this
activity, but providing a uniform Federal law--instead of a patchwork
of State criminal statutes--will assist law enforcement officials in
combating the theft and redistribution of valuable intellectual
property embodied in newly-released motion pictures.
Second, the bill will create a pre-registration system that will
permit criminal penalties and statutory-damage awards. This will also
provide a tool for law enforcement officials combating the growing
problem of music and movies being distributed on filesharing networks
and circulating on the Internet before they are even released.
Obviously, the increasingly frequent situation of copyrighted works
[[Page S495]]
being distributed illegally via the Internet before they are even made
available for sale to the public severely undercuts the ability of
copyright holders to receive fair and adequate compensation for their
works.
Title II of this Act, the Family Movie Act of 2005 (the FMA),
resolves some ongoing disputes about the legality of so-called ``jump-
and-skip'' technologies that companies like Clearplay in my home State
of Utah have developed to permit family-friendly viewing of films that
may contain objectionable content. The FMA creates a narrowly defined
safe-harbor clarifying that distributors of such technologies will not
face liability for copyright or trademark infringement, provided that
they comply with the requirements of the Act. I have been working with
my colleagues in the Senate and several leaders in the House--
including, most importantly Chairmen Smith and Sensenbrenner--for the
past couple of years to resolve this issue. The FMA will help to end
aggressive litigation threatening the viability of small companies like
Clearplay which are busy creating innovative technologies for consumers
that allow them to tailor their home viewing experience to their own
individual or family preferences.
The Family Movie Act creates a new exemption in section 110(11) of
the Copyright Act for skipping and muting audio and video content in
motion pictures during performances of an authorized copy of the motion
picture taking place in the course of a private viewing in a household.
The version passed last year by the House explicitly excluded from the
scope of the new copyright exemption so-called ``ad-skipping''
technologies that make changes, deletions, or additions to commercial
advertisements or to network or station promotional announcements that
would otherwise be displayed before, during, or after the performance
of the motion picture. This provision was included on the House floor
to address the concerns of some Members who were concerned that a court
might misread the new section 110(11) exemption to apply to ``ad-
skipping''' cases, such as in the recent litigation involving ReplayTV.
In the Senate, however, some expressed concern that the inclusion of
such explicit language could create unwanted inferences with respect to
the merits of the legal positions at the heart of recent ``ad-
skipping'' litigation. Those issues remain unsettled in the courts, and
it was never the intent of this legislation to resolve or affect those
issues in any way. Indeed, the Copyright Act contains literally scores
of similar exemptions, and none of those exemptions have been or should
be construed to imply anything about the legality of conduct falling
outside their scope. As a result, the Copyright Office has now
confirmed that such an explicit exclusion is unnecessary to achieve the
desired outcome, which is to avoid application of this new exemption in
potential future cases involving ad-skipping devices. In order to avoid
unnecessary controversy, the Senate bill omits the exclusionary
language with the understanding that doing so does not in any way
change the scope of the bill.
That this change in no way affects the scope of the exemption is
clear when considering that the new section 110(11) exemption protects
the ``making imperceptible . . . limited portions of audio or video
content of a motion picture. . . .'' An advertisement, under the
Copyright Act, is itself a ``motion picture,'' and thus a product or
service that enables the skipping of an entire advertisement, in any
media, would be beyond the scope of the exemption. Moreover, the phrase
``limited portions'' is intended to refer to portions that are both
quantitatively and qualitatively insubstantial in relation to the work
as a whole. Where any substantial part of a complete work, such as a
commercial advertisement, is made imperceptible, the new section
110(11) exemption would not apply. The limited scope of this exemption
does not, however, imply or show that such conduct or a technology that
enables such conduct would be infringing. This legislation does not in
any way deal with that issue. It means simply that such conduct and
products enabling such conduct are not immunized from liability by this
exemption.
This bill also differs from the version passed by the House last year
in that it adds two ``savings clauses.'' The copyright savings clause
makes clear that there should be no spillover effect from the passage
of this law: that is, nothing shall be construed to have any effect on
rights, defenses, or limitations on rights granted under title 17,
other than those explicitly provided for in the new section 110(11)
exemption. The trademark savings clause clarifies that no inference can
be drawn that a person or company who fails to qualify for the
exemption from trademark infringement found in this provision is
therefore liable for trademark infringement.
Title III of this Act, the National Film Preservation Act of 2004,
will reauthorize the National Film Preservation Board and the National
Film Preservation Foundation. These entities have worked successfully
to recognize and preserve historically or culturally significant
films--often by providing the grants and expertise that enable local
historical societies to protect and preserve historically significant
films for the local communities for which they are most important. This
fine work will ensure that the history of the 20th century will be
preserved and available to future generations.
As a conservative Senator from a socially conservative state, I
occasionally take a few swings at the movie industry for the quality
and content of the motion pictures they are currently creating, but I
will note for the record that I commend efforts to ensure that
important artistic, cultural, and historically significant films are
preserved for future generations. I commend my friend from Vermont for
his perseverance in reauthorizing Federal funds to continue this
important effort.
Title IV of this act, the ``Preservation of Orphan Works Act,'' also
ensures the preservation of valuable historic records by correcting a
technical error that unnecessarily narrows a limitation on the
copyright law applicable to librarians and archivists. This will
strengthen the ability of librarians and archivists to better meet the
needs of both researchers and ordinary individuals and will result in
greater accessibility of important works. I applaud my colleague in the
House--Representative Howard Berman of California--for his efforts on
this bill and am pleased to see it included in this Senate package.
Just to conclude, I will again thank Ranking Democratic Member Leahy,
Senator Cornyn, Chairmen Sensenbrenner and Smith, as well as Mr.
Conyers and Mr. Berman for their bicameral, bipartisan approach to
these bills and to intellectual property issues generally.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 167
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 ``Family Entertainment and
Copyright Act of 2005''.
TITLE I--ARTISTS' RIGHTS AND THEFT PREVENTION
SEC. 101. SHORT TITLE.
This title may be cited as the ``Artists' Rights and Theft
Prevention Act of 2005'' or the ``ART Act''.
SEC. 102. CRIMINAL PENALTIES FOR UNAUTHORIZED RECORDING OF
MOTION PICTURES IN A MOTION PICTURE EXHIBITION
FACILITY.
(a) In General.--Chapter 113 of title 18, United States
Code, is amended by adding after section 2319A the following
new section:
``Sec. 2319B. Unauthorized recording of Motion pictures in a
Motion picture exhibition facility
``(a) Offense.--Any person who, without the authorization
of the copyright owner, knowingly uses or attempts to use an
audiovisual recording device to transmit or make a copy of a
motion picture or other audiovisual work protected under
title 17, or any part thereof, from a performance of such
work in a motion picture exhibition facility, shall--
``(1) be imprisoned for not more than 3 years, fined under
this title, or both; or
``(2) if the offense is a second or subsequent offense, be
imprisoned for no more than 6 years, fined under this title,
or both.
The possession by a person of an audiovisual recording device
in a motion picture exhibition facility may be considered as
evidence in any proceeding to determine whether that person
committed an offense under this subsection, but shall not, by
itself, be sufficient
[[Page S496]]
to support a conviction of that person for such offense.
``(b) Forfeiture and Destruction.--When a person is
convicted of a violation of subsection (a), the court in its
judgment of conviction shall, in addition to any penalty
provided, order the forfeiture and destruction or other
disposition of all unauthorized copies of motion pictures or
other audiovisual works protected under title 17, or parts
thereof, and any audiovisual recording devices or other
equipment used in connection with the offense.
``(c) Authorized Activities.--This section does not prevent
any lawfully authorized investigative, protective, or
intelligence activity by an officer, agent, or employee of
the United States, a State, or a political subdivision of a
State, or by a person acting under a contract with the United
States, a State, or a political subdivision of a State.
``(d) Immunity for Theaters.--With reasonable cause, the
owner or lessee of a motion picture exhibition facility where
a motion picture or other audiovisual work is being
exhibited, the authorized agent or employee of such owner or
lessee, the licensor of the motion picture or other
audiovisual work being exhibited, or the agent or employee of
such licensor--
``(1) may detain, in a reasonable manner and for a
reasonable time, any person suspected of a violation of this
section with respect to that motion picture or audiovisual
work for the purpose of questioning or summoning a law
enforcement officer; and
``(2) shall not be held liable in any civil or criminal
action arising out of a detention under paragraph (1).
``(e) Victim Impact Statement.--
``(1) In general.--During the preparation of the
presentence report under rule 32(c) of the Federal Rules of
Criminal Procedure, victims of an offense under this section
shall be permitted to submit to the probation officer a
victim impact statement that identifies the victim of the
offense and the extent and scope of the injury and loss
suffered by the victim, including the estimated economic
impact of the offense on that victim.
``(2) Contents.--A victim impact statement submitted under
this subsection shall include--
``(A) producers and sellers of legitimate works affected by
conduct involved in the offense;
``(B) holders of intellectual property rights in the works
described in subparagraph (A); and
``(C) the legal representatives of such producers, sellers,
and holders.
``(f) State Law Not Preempted.--Nothing in this section may
be construed to annul or limit any rights or remedies under
the laws of any State.
``(g) Definitions.--In this section, the following
definitions shall apply:
``(1) Title 17 definitions.--The terms `audiovisual work',
`copy', `copyright owner', `motion picture', `motion picture
exhibition facility', and `transmit' have, respectively, the
meanings given those terms in section 101 of title 17.
``(2) Audiovisual recording device.--The term `audiovisual
recording device' means a digital or analog photographic or
video camera, or any other technology or device capable of
enabling the recording or transmission of a copyrighted
motion picture or other audiovisual work, or any part
thereof, regardless of whether audiovisual recording is the
sole or primary purpose of the device.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 113 of title 18, United States Code, is
amended by inserting after the item relating to section 2319A
the following:
``2319B. Unauthorized recording of motion pictures in a motion picture
exhibition facility.''.
(c) Definition.--Section 101 of title 17, United States
Code, is amended by inserting after the definition of
``Motion pictures'' the following: ``The term ``motion
picture exhibition facility'' means a movie theater,
screening room, or other venue that is being used primarily
for the exhibition of a copyrighted motion picture, if such
exhibition is open to the public or is made to an assembled
group of viewers outside of a normal circle of a family and
its social acquaintances.''.
SEC. 103. CRIMINAL INFRINGEMENT OF A WORK BEING PREPARED FOR
COMMERCIAL DISTRIBUTION.
(a) Prohibited Acts.--Section 506(a) of title 17, United
States Code, is amended to read as follows:
``(a) Criminal Infringement.--
``(1) In general.--Any person who willfully infringes a
copyright shall be punished as provided under section 2319 of
title 18, if the infringement was committed--
``(A) for purposes of commercial advantage or private
financial gain;
``(B) by the reproduction or distribution, including by
electronic means, during any 180-day period, of 1 or more
copies or phonorecords of 1 or more copyrighted works, which
have a total retail value of more than $1,000; or
``(C) by the distribution of a work being prepared for
commercial distribution, by making it available on a computer
network accessible to members of the public, if such person
knew or should have known that the work was intended for
commercial distribution.
``(2) Evidence.--For purposes of this subsection, evidence
of reproduction or distribution of a copyrighted work, by
itself, shall not be sufficient to establish willful
infringement of a copyright.
``(3) Definition.--In this subsection, the term `work being
prepared for commercial distribution' means--
``(A) a computer program, a musical work, a motion picture
or other audiovisual work, or a sound recording, if, at the
time of unauthorized distribution--
``(i) the copyright owner has a reasonable expectation of
commercial distribution; and
``(ii) the copies or phonorecords of the work have not been
commercially distributed; or
``(B) a motion picture, if, at the time of unauthorized
distribution, the motion picture--
``(i) has been made available for viewing in a motion
picture exhibition facility; and
``(ii) has not been made available in copies for sale to
the general public in the United States in a format intended
to permit viewing outside a motion picture exhibition
facility.''.
(b) Criminal Penalties.--Section 2319 of title 18, United
States Code, is amended--
(1) in subsection (a)--
(A) by striking ``Whoever'' and inserting ``Any person
who''; and
(B) by striking ``and (c) of this section'' and inserting
``, (c), and (d)'';
(2) in subsection (b), by striking ``section 506(a)(1)''
and inserting ``section 506(a)(1)(A)'';
(3) in subsection (c), by striking ``section 506(a)(2) of
title 17, United States Code'' and inserting ``section
506(a)(1)(B) of title 17'';
(4) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively;
(5) by adding after subsection (c) the following:
``(d) Any person who commits an offense under section
506(a)(1)(C) of title 17--
``(1) shall be imprisoned not more than 3 years, fined
under this title, or both;
``(2) shall be imprisoned not more than 5 years, fined
under this title, or both, if the offense was committed for
purposes of commercial advantage or private financial gain;
``(3) shall be imprisoned not more than 6 years, fined
under this title, or both, if the offense is a second or
subsequent offense; and
``(4) shall be imprisoned not more than 10 years, fined
under this title, or both, if the offense is a second or
subsequent offense under paragraph (2).''; and
(6) in subsection (f), as redesignated--
(A) in paragraph (1), by striking ``and'' at the end;
(B) in paragraph (2), by striking the period at the end and
inserting a semicolon; and
(C) by adding at the end the following:
``(3) the term `financial gain' has the meaning given the
term in section 101 of title 17; and
``(4) the term `work being prepared for commercial
distribution' has the meaning given the term in section
506(a) of title 17.''.
SEC. 104. CIVIL REMEDIES FOR INFRINGEMENT OF A WORK BEING
PREPARED FOR COMMERCIAL DISTRIBUTION.
(a) Preregistration.--Section 408 of title 17, United
States Code, is amended by adding at the end the following:
``(f) Preregistration of Works Being Prepared for
Commercial Distribution.--
``(1) Rulemaking.--Not later than 180 days after the date
of enactment of this subsection, the Register of Copyrights
shall issue regulations to establish procedures for
preregistration of a work that is being prepared for
commercial distribution and has not been published.
``(2) Class of works.--The regulations established under
paragraph (1) shall permit preregistration for any work that
is in a class of works that the Register determines has had a
history of infringement prior to authorized commercial
distribution.
``(3) Application for registration.--Not later than 3
months after the first publication of a work preregistered
under this subsection, the applicant shall submit to the
Copyright Office--
``(A) an application for registration of the work;
``(B) a deposit; and
``(C) the applicable fee.
``(4) Effect of untimely application.--An action under this
chapter for infringement of a work preregistered under this
subsection, in a case in which the infringement commenced no
later than 2 months after the first publication of the work,
shall be dismissed if the items described in paragraph (3)
are not submitted to the Copyright Office in proper form
within the earlier of--
``(A) 3 months after the first publication of the work; or
``(B) 1 month after the copyright owner has learned of the
infringement.''.
(b) Infringement Actions.--Section 411(a) of title 17,
United States Code, is amended by inserting ``preregistration
or'' after ``shall be instituted until''.
(c) Exclusion.--Section 412 of title 17, United States
Code, is amended by inserting after ``section 106A(a)'' the
following: ``, an action for infringement of the copyright of
a work that has been preregistered under section 408(f)
before the commencement of the infringement and that has an
effective date of registration not later than the earlier of
3 months after the first publication of the work or 1 month
after the copyright owner has learned of the infringement,''.
SEC. 105. FEDERAL SENTENCING GUIDELINES.
(a) Review and Amendment.--Not later than 180 days after
the date of enactment of this Act, the United States
Sentencing Commission, pursuant to its authority under
section 994 of title 28, United States Code, and
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in accordance with this section, shall review and, if
appropriate, amend the Federal sentencing guidelines and
policy statements applicable to persons convicted of
intellectual property rights crimes, including any offense
under--
(1) section 506, 1201, or 1202 of title 17, United States
Code; or
(2) section 2318, 2319, 2319A, 2319B, or 2320 of title 18,
United States Code.
(b) Authorization.--The United States Sentencing Commission
may amend the Federal sentencing guidelines in accordance
with the procedures set forth in section 21(a) of the
Sentencing Act of 1987 (28 U.S.C. 994 note) as though the
authority under that section had not expired.
(c) Responsibilities of United States Sentencing
Commission.--In carrying out this section, the United States
Sentencing Commission shall--
(1) take all appropriate measures to ensure that the
Federal sentencing guidelines and policy statements described
in subsection (a) are sufficiently stringent to deter, and
adequately reflect the nature of, intellectual property
rights crimes;
(2) determine whether to provide a sentencing enhancement
for those convicted of the offenses described in subsection
(a), if the conduct involves the display, performance,
publication, reproduction, or distribution of a copyrighted
work before it has been authorized by the copyright owner,
whether in the media format used by the infringing party or
in any other media format;
(3) determine whether the scope of ``uploading'' set forth
in application note 3 of section 2B5.3 of the Federal
sentencing guidelines is adequate to address the loss
attributable to people who, without authorization, broadly
distribute copyrighted works over the Internet; and
(4) determine whether the sentencing guidelines and policy
statements applicable to the offenses described in subsection
(a) adequately reflect any harm to victims from copyright
infringement if law enforcement authorities cannot determine
how many times copyrighted material has been reproduced or
distributed.
TITLE II--EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO
CONTENT IN MOTION PICTURES
SEC. 201. SHORT TITLE.
This title may be cited as the ``Family Movie Act of
2005''.
SEC. 202. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND
VIDEO CONTENT IN MOTION PICTURES.
(a) In General.--Section 110 of title 17, United States
Code, is amended--
(1) in paragraph (9), by striking ``and'' after the
semicolon at the end;
(2) in paragraph (10), by striking the period at the end
and inserting ``; and'';
(3) by inserting after paragraph (10) the following:
``(11) the making imperceptible, by or at the direction of
a member of a private household, of limited portions of audio
or video content of a motion picture, during a performance in
or transmitted to that household for private home viewing,
from an authorized copy of the motion picture, or the
creation or provision of a computer program or other
technology that enables such making imperceptible and that is
designed and marketed to be used, at the direction of a
member of a private household, for such making imperceptible,
if no fixed copy of the altered version of the motion picture
is created by such computer program or other technology.'';
and
(4) by adding at the end the following:
``For purposes of paragraph (11), the term `making
imperceptible' does not include the addition of audio or
video content that is performed or displayed over or in place
of existing content in a motion picture.
`` Nothing in paragraph (11) shall be construed to imply
further rights under section 106 of this title, or to have
any effect on defenses or limitations on rights granted under
any other section of this title or under any other paragraph
of this section.''.
(b) Exemption From Trademark Infringement.--Section 32 of
the Trademark Act of 1946 (15 U.S.C. 1114) is amended by
adding at the end the following:
``(3)(A) Any person who engages in the conduct described in
paragraph (11) of section 110 of title 17, United States
Code, and who complies with the requirements set forth in
that paragraph is not liable on account of such conduct for a
violation of any right under this Act. This subparagraph does
not preclude liability, nor shall it be construed to restrict
the defenses or limitations on rights granted under this Act,
of a person for conduct not described in paragraph (11) of
section 110 of title 17, United States Code, even if that
person also engages in conduct described in paragraph (11) of
section 110 of such title.
``(B) A manufacturer, licensee, or licensor of technology
that enables the making of limited portions of audio or video
content of a motion picture imperceptible as described in
subparagraph (A) is not liable on account of such manufacture
or license for a violation of any right under this Act, if
such manufacturer, licensee, or licensor ensures that the
technology provides a clear and conspicuous notice at the
beginning of each performance that the performance of the
motion picture is altered from the performance intended by
the director or copyright holder of the motion picture. The
limitations on liability in subparagraph (A) and this
subparagraph shall not apply to a manufacturer, licensee, or
licensor of technology that fails to comply with this
paragraph.
``(C) The requirement under subparagraph (B) to provide
notice shall apply only with respect to technology
manufactured after the end of the 180-day period beginning on
the date of the enactment of the Family Movie Act of 2005.
``(D) Any failure by a manufacturer, licensee, or licensor
of technology to qualify for the exemption under
subparagraphs (A) and (B) shall not be construed to create an
inference that any such party that engages in conduct
described in paragraph (11) of section 110 of title 17,
United States Code, is liable for trademark infringement by
reason of such conduct.''.
(c) Definition.--In this section, the term ``Trademark Act
of 1946'' means the Act entitled ``An Act to provide for the
registration and protection of trademarks used in commerce,
to carry out the provisions of certain international
conventions, and for other purposes'', approved July 5, 1946
(15 U.S.C. 1051 et seq.).
TITLE III--NATIONAL FILM PRESERVATION
Subtitle A--Reauthorization of the National Film Preservation Board
SEC. 301. SHORT TITLE.
This subtitle may be cited as the ``National Film
Preservation Act of 2005''.
SEC. 302. REAUTHORIZATION AND AMENDMENT.
(a) Duties of the Librarian of Congress.--Section 103 of
the National Film Preservation Act of 1996 (2 U.S.C. 179m) is
amended--
(1) in subsection (b)--
(A) by striking ``film copy'' each place that term appears
and inserting ``film or other approved copy'';
(B) by striking ``film copies'' each place that term
appears and inserting ``film or other approved copies''; and
(C) in the third sentence, by striking ``copyrighted'' and
inserting ``copyrighted, mass distributed, broadcast, or
published''; and
(2) by adding at the end the following:
``(c) Coordination of Program With Other Collection,
Preservation, and Accessibility Activities.--In carrying out
the comprehensive national film preservation program for
motion pictures established under the National Film
Preservation Act of 1992, the Librarian, in consultation with
the Board established pursuant to section 104, shall--
``(1) carry out activities to make films included in the
National Film registry more broadly accessible for research
and educational purposes, and to generate public awareness
and support of the Registry and the comprehensive national
film preservation program;
``(2) review the comprehensive national film preservation
plan, and amend it to the extent necessary to ensure that it
addresses technological advances in the preservation and
storage of, and access to film collections in multiple
formats; and
``(3) wherever possible, undertake expanded initiatives to
ensure the preservation of the moving image heritage of the
United States, including film, videotape, television, and
born digital moving image formats, by supporting the work of
the National Audio-Visual Conservation Center of the Library
of Congress, and other appropriate nonprofit archival and
preservation organizations.''.
(b) National Film Preservation Board.--Section 104 of the
National Film Preservation Act of 1996 (2 U.S.C. 179n) is
amended--
(1) in subsection (a)(1) by striking ``20'' and inserting
``22'';
(2) in subsection (a) (2) by striking ``three'' and
inserting ``5'';
(3) in subsection (d) by striking ``11'' and inserting
``12''; and
(4) by striking subsection (e) and inserting the following:
``(e) Reimbursement of Expenses.--Members of the Board
shall serve without pay, but may receive travel expenses,
including per diem in lieu of subsistence, in accordance with
sections 5702 and 5703 of title 5, United States Code.''.
(c) National Film Registry.--Section 106 of the National
Film Preservation Act of 1996 (2 U.S.C. 179p) is amended by
adding at the end the following:
``(e) National Audio-Visual Conservation Center.--The
Librarian shall utilize the National Audio-Visual
Conservation Center of the Library of Congress at Culpeper,
Virginia, to ensure that preserved films included in the
National Film Registry are stored in a proper manner, and
disseminated to researchers, scholars, and the public as may
be appropriate in accordance with--
``(1) title 17, United States Code; and
``(2) the terms of any agreements between the Librarian and
persons who hold copyrights to such audiovisual works.''.
(d) Use of Seal.--Section 107 (a) of the National Film
Preservation Act of 1996 (2 U.S.C. 179q(a)) is amended--
(1) in paragraph (1), by inserting ``in any format'' after
``or any copy''; and
(2) in paragraph (2), by striking ``or film copy'' and
inserting ``in any format''.
(e) Effective Date.--Section 113 of the National Film
Preservation Act of 1996 (2 U.S.C. 179w) is amended by
striking ``7'' and inserting ``12''.
Subtitle B--Reauthorization of the National Film Preservation
Foundation
SEC. 311. SHORT TITLE.
This subtitle may be cited as the ``National Film
Preservation Foundation Reauthorization Act of 2005''.
[[Page S498]]
SEC. 312. REAUTHORIZATION AND AMENDMENT.
(a) Board of Directors.--Section 151703 of title 36, United
States Code, is amended--
(1) in subsection (b)(2)(A), by striking ``nine'' and
inserting ``12''; and
(2) in subsection (b)(4), by striking the second sentence
and inserting ``There shall be no limit to the number of
terms to which any individual may be appointed.''.
(b) Powers.--Section 151705 of title 36, United States
Code, is amended in subsection (b) by striking ``District of
Columbia'' and inserting ``the jurisdiction in which the
principal office of the corporation is located''.
(c) Principal Office.--Section 151706 of title 36, United
States Code, is amended by inserting ``, or another place as
determined by the board of directors'' after ``District of
Columbia''.
(d) Authorization of Appropriations.--Section 151711 of
title 36, United States Code, is amended by striking
subsections (a) and (b) and inserting the following:
``(a) Authorization of Appropriations.--There are
authorized to be appropriated to the Library of Congress
amounts necessary to carry out this chapter, not to exceed
$530,000 for each of the fiscal years 2005 through 2009.
These amounts are to be made available to the corporation to
match any private contributions (whether in currency,
services, or property) made to the corporation by private
persons and State and local governments.
``(b) Limitation Related to Administrative Expenses.--
Amounts authorized under this section may not be used by the
corporation for management and general or fundraising
expenses as reported to the Internal Revenue Service as part
of an annual information return required under the Internal
Revenue Code of 1986.''.
TITLE IV--PRESERVATION OF ORPHAN WORKS
SEC. 401. SHORT TITLE.
This title may be cited as the ``Preservation of Orphan
Works Act''.
SEC. 402. REPRODUCTION OF COPYRIGHTED WORKS BY LIBRARIES AND
ARCHIVES.
Section 108(i) of title 17, United States Code, is amended
by striking ``(b) and (c)'' and inserting ``(b), (c), and
(h)''.
Mr. LEAHY. Mr. President, today I join my colleagues, Senators Hatch,
Feinstein, and Cornyn, introducing an important piece of bipartisan
intellectual property legislation. The provisions of the ``Family
Entertainment and Copyright Act of 2005'' are virtually identical to
those in the bill we passed in the waning days of the 108th Congress.
Unfortunately, that package of intellectual property bills was hijacked
in an effort to use it as a vehicle to pass unrelated legislation. The
effort failed, and in the end so did Congress: we were not able to send
to the President the most important package of intellectual property
legislation on last year's agenda. The legislation passed in the
Senate--several times in fact--but there was simply not enough time for
the House of Representatives to act.
I am pleased that we were able to salvage two components of last
year's bill. As Congress came to a close, the House passed the Senate
version of the CREATE Act, legislation I cosponsored with Senator
Hatch. The new law will continue to encourage collaborative research
partnerships between private industry and not-for-profits, such as
universities. We were also able to send to the President the Anti-
counterfeiting Amendments Act, a version of Senator Biden's legislation
that my friend from Delaware has championed for several years. Both
laws are important, but our task remains incomplete.
It is time to enact the remaining components of the Family
Entertainment and Copyright Act, to finish off the work of the 108th
Congress as we begin the 109th.
Title I of the bill contains the ``Artists'' Rights and Theft
Prevention Act,'' better known as the ART Act. This provision passed
the Senate as a standalone bill in June of 2004, and again as part of
the FECA bill at the end of the last Congress. The bill will make
important inroads in the fight against movie piracy by criminalizing
the use of camcorders to pilfer movies from the big screen. It will
also direct the Register of Copyrights to create a registry of pre-
release works in order to better address the problem of movie-theft
before these works are offered for legal distribution.
The next title of the bill is the Family Movie Act, which will
preserve the rights of families to watch motion pictures in the manner
they see fit. At the same time, the Act protects the rights of
directors and copyright holders to maintain the artistic vision and
integrity of their works. A version of this legislation passed the
other chamber in September of 2004, and it passed the Senate as part of
the FECA bill at the end of the 108th Congress.
Title III of the bill is the Film Preservation Act, legislation that
I sponsored in the last Congress. A version of this bill, too, was part
of the FECA bill that passed the Senate last Congress. The Film
Preservation Act will allow the Library of Congress to continue its
important work in preserving America's fading film treasures. The works
preserved by this important program include silent-era films, avant-
garde works, ethnic films, newsreels, and home movies that are in many
ways more illuminating on the question of who we are as a society than
the Hollywood sound features kept and preserved by major studios.
What's more, the bill will assist libraries, museums, and archives in
preserving films, and in making those works available to researchers
and the public.
Finally, the bill contains the Preservation of Orphan Works Act. This
provision corrects for a drafting error in the Sonny Bono Copyright
Term Extension Act. Correction of this error will allow libraries to
create copies of certain copyrighted works, such as films and musical
compositions that are in the last 20 years of their copyright term, are
no longer commercially exploited, and are not available at a reasonable
price. Again, this provision ensures that copies of culturally-
illuminating works are not lost to history.
Anytime we enact a package of legislation as large as the ``Family
Entertainment and Copyright Act,'' building consensus is difficult.
However, this is a chamber built on collegiality and compromise, and
while I may have crafted specific components of this package
differently, I believe that the final result we have achieved is one
worthy of enactment. The components of this package have already passed
the Senate at least once, and I have received assurances from the other
chamber that the bill will receive swift consideration once it is
approved in this body.
The legislative process is functioning well when we work with our
colleagues across the aisle, and it is at its best when we work on a
bipartisan basis with our friends in the other chamber. This bill has
benefited from both. The agenda of the 109th Congress promises many
issues that divide us, but this is not such a bill: It has garnered
broad consensus, and I hope that we can finally move to swiftly enact
it.
Mr. CORNYN. Mr. President, in the fall of 2003, I introduced S. 1932,
the Artists' Rights and Theft Prevention Act of 2003, along with my
friend from California, Senator Feinstein. As introduced, the ART Act
was a modest but necessary first step to combat the rampant piracy
plaguing the motion picture, recording and general content industries.
The Bill focuses on the most egregious form of copyright piracy
plaguing the entertainment industry today--the piracy of film, movies,
and other copyrighted materials before copyright owners have had the
opportunity to market fully their products.
Now, as part of a comprehensive package, ``the Family Entertainment
and Copyright Act of 2005,'' it is even more significant. This package
contains a number of targeted, important reforms that help strengthen
our intellectual property laws. I rise to express my strong support for
the bill and ask my colleagues to move it expeditiously.
Intellectual property laws and the American businesses that rely on
them deserve our strongest support. Our Nation was founded on a number
of important ideas. One central one was that the value created by the
work and sweat of a person should be recognized as that person's
property and should be protected. Protecting the creativity and capital
that American innovators invest to make our lives richer is the right
thing to do. Failure to do so not only would diminish the quality of
our individual lives, but our country would suffer too. Intellectual
property-related industries are a central driver of our Nation's
economy and a staple of our international trade.
The copyright-based industries alone accounted for more than 5
percent of the U.S. GDP or $535,100,000,000 in 2001 and almost 6
percent of U.S. employment, and led all major industry sectors in
foreign sales and exports in 2001, the last year for which we have
figures.
As the Justice Department recently has pointed out:
[[Page S499]]
Ideas and the people who generate them serve as critical
resources both in our daily lives and in the stability and
growth of America's economy. The creation of intellectual
property--from designs for new products to artistic
creations--unleashes our Nation's potential, brings ideas
from concept to commerce, and drives future economic and
productivity gains. In the increasingly knowledge-driven,
information age economy, intellectual property is the new
coin of the realm. . . . [Report of the DOJ Task Force on
Intellectual Property, p. 7.]
As the DOJ IP Task Force Report notes, America's economy relies more
and more on ideas we create, not things we make. We need to protect our
Nation's innovative and creative works with strong laws and enforcement
of those laws because doing so is vital to our national economic
security.
Having noted and quoted the DOJ Report, I want to pause to thank the
Justice Department and outgoing Attorney General John Ashcroft for
taking these issues seriously and for taking significant steps to
address them. The formation of the Intellectual Property Task Force
spotlighted these issues at the Justice Department and the work of the
Task Force, headed by David Israelite did a superb job in developing
comprehensive and serious steps better protecting our intellectual
property interests. The DOJ engaged in serious domestic and
international investigations and prosecutions against digital thieves
who have misused promising digital technology like the Internet to
further their attacks on American businesses. General Ashcroft and the
Justice Department, who deserve our gratitude for so many reasons,
certainly deserve it for their efforts on this area.
Having provided that foundation, let me discuss briefly some of the
important provisions contained in this legislative package.
We have purposefully compiled a package of legislation that strikes a
balance between innovation and copyright protection. One needn't be
sacrificed to encourage the other--rather they go hand-in-hand.
First, I would mention the Cornyn-Feinstein ``Artist's Rights and
Theft Prevention Act'' or the ART Act. Notably, it contains a provision
making it a felony to record a movie in a theater. One of the principal
ways that movie piracy happens is by thieves sitting in a movie
theater, or bribing a projectionist to help them, and recording movies
with small camcorders. These camcorded copies can then make their way
around the world on the internet and usually land on the streets of
cities around the world in pirated copies sold on the street, often the
day the movie opens in the U.S. or even before the movie opens in many
countries.
All it takes is a single or a small handful of camcorded copies
distributed worldwide to have a devastating effect on a movie's
profitability. Movies are generally an investment of tens or hundreds
of millions of dollars that rely on box office and home video and other
subsequent sales to recoup this investment. A camcorded copy released
early in any of these cycles can undermine the economics of this
business, and especially if they hit the streets or the internet while
the movie is still in theaters. This is theft, and it is theft that
supports organized crime groups, and perhaps, even terrorism. It
deserves to be stopped by the specter of a federal felony.
Its second key provision focuses on so-called ``pre-released'' works.
Because serious harm can be done to both the reputation of and market
for creative products if they are pirated before they actually come to
market, we have included reforms in the ART Act and this package that
make it easier for the Justice Department to prosecute those who steal
and distribute copies of copyrighted works on the internet before they
are released to the public by their owners or authorized distributors.
We make the prosecutor's job easier by allowing certain presumptions
with regard to the harm caused, including the dollar amount and number
of copies, necessary to allow the prosecutor to bring a felony action
where the works in question are being prepared for commercial release
but have not been released to the public legitimately. This is fair
because no one can legitimately believe that they are within their
rights copying and distributing works that are not yet available in the
marketplace. Again this is a common sense concept, which deserves the
support of the Congress.
Also, I would mention the Family Movie Act--another important
component of this package. This provision allows the use of certain,
specified technology to skip or mute content that may be objectionable
to certain viewers when watching a movie at home, so long as no fixed
copy of the edited work is made.
Very few would argue that many of the movies produced today contain
significant amounts of gratuitous sex, violence, foul language or other
potentially objectionable content. A number of innovative companies
have stepped forward to solve this problem by providing filters that
tag such scenes and allows consumers to tailor their viewing
experience.
This legislation is designed to solve an on-going controversy
surrounding the use of such technology. Specifically, there is
litigation pending over the issue of whether providing edited versions
of movies to consumers creates a ``derivative work'' that violates the
rights of those who created or own the copyrights and trademarks for
the original movies. The existence of this controversy arguably is
hampering the development of the technology that families may find
helpful in protecting children from potentially objectionable content.
Let me make clear that this bill is not designed to deal with ad-
skipping by consumers in the home. I know that there has been some
misinformation about this by groups who apparently oppose copyright
protections generally, but this bill has nothing to do with anything
other than using a certain kind of technology to modify the viewing
experience of a movie to skip over objectionable content.
Finally, the two remaining provisions--though relatively small--are
not insignificant. The Film Preservation Act, legislation that I
recognize is particularly important to Senator Leahy, and I thank him
for his efforts in promoting it, will reauthorize a Library of Congress
Program dedicated to saving rare and significant films. Additionally,
we make a small but necessary change to the Sonny Bono Copyright Term
Extension Act. Correction of this error will allow libraries to create
copies of certain copyrighted works, such as films and musical
compositions that are in the last 20 years of their copyright term, are
no longer commercially exploited, and are not available at a reasonable
price.
Before I relinquish my time, I do want to thank a number of people
who have worked tirelessly on behalf of this bill. Allow me to thank
David Jones and Tom Sydnor of the staff of Chairman Orrin Hatch, who is
not only our previous Judiciary Committee Chairman, but a leader on
copyright and intellectual property issues; Susan Davies and Dan Fine
of Senator Leahy's staff, who also has long been a leader on
intellectual property issues; and finally, David Hantman of Senator
Feinstein's staff, a Senator with whom I am happy to have teamed to
introduce the ART Act in the last Congress.
Having begun with the staff, who rarely get mentioned as much as they
deserve for the great work they do, let me also thank the Senators they
work for: Senators Hatch, Leahy, and Feinstein for their co-
sponsorship, as well as the Majority Leader, who has taken a personal
interest in this legislation and worked to make it happen.
Mr. CORNYN. Mr. President, would the Senator yield for a quick
question?
Mr. HATCH. I would be happy to yield for a question from the
distinguished Senator from Texas.
Mr. CORNYN. As the chairman knows, he and I and our other cosponsors
have worked throughout last Congress on the provisions of the Family
Entertainment and Copyright Act of 2005 that we have introduced today.
With respect to the Family Movie Act portion of the bill, I just wanted
to raise the point that there had been some concern over the potential
effect of the FMA on future cases involving ``ad skipping''
technologies and ask if you would have any objection to including in
the record the relevant portion of the floor discussion on that issue
from last Congress?
Mr. HATCH. I thank my friend, the Senator from Texas, for that
reminder. I would certainly have no objection to entering our previous
colloquy into the Record again and ask unanimous consent that it appear
after our remarks.
[[Page S500]]
Mr. HATCH. Mr. President, Section 102 of the ART Act establishes a
new provision of Title 18 entitled, ``Unauthorized Recording of Motion
Pictures in a Motion Picture Exhibition Facility.'' I ask Senator
Cornyn, what is the purpose of this provision?
Mr. CORNYN. Section 102 addresses a serious piracy issue facing the
movie business: the use of camcorders in a motion picture theater. Sad
to say, there are people who go to the movie theater, generally during
pre-opening ``screenings'' or during the first weekend of theatrical
release, and using sophisticated digital equipment, record the movie.
They're not trying to save $8.00 so they can see the movie again.
Instead, they sell the camcorded version to a local production factory
or to an overseas producer, where it is converted into DVDs or similar
products and sold on the street for a few dollars per copy. This misuse
of camcorders is a significant factor in the estimated $3.5 billion per
year of losses the movie industry suffers because of hard goods piracy.
Even worse, these camcorded versions are posted on the Internet through
``P2P'' networks such as KaZaA, Grokster and Morpheus--and made
available for millions to download. The goal of our bill is to provide
a potent weapon in the arsenal of prosecutors to stem the piracy of
commercially valuable motion pictures at its source.
Mr. HATCH. I have heard it said that this bill could be used against
a salesperson or a customer at stores such as Best Buy or Circuit City
if he or she were to point a video camera at a television screen
showing a movie. Is this cause for concern?
Mr. CORNYN. Absolutely not. The offense is only applicable to
transmitting or copying a movie in a motion picture exhibition
facility, which has to be a movie theater or similar venue ``that is
being used primarily for the exhibition of a copyrighted motion
picture.'' In the example of Best Buy--the store is being used
primarily to sell electronic equipment, not to exhibit motion pictures.
For the same reason, the statute would not cover a university student
who records a short segment of a film being shown in film class, as the
venue is being used primarily as a classroom, and not as a movie
theater.
Mr. HATCH. Does the Senator from California agree with your colleague
from Texas?
Mrs. FEINSTEIN. Absolutely on all points.
Mr. HATCH. I have also heard some say that this statute could be used
to prosecute someone for camcording a DVD at his home. Is this a fair
concern?
Mrs. FEINSTEIN. No, it is not. The definition of a motion picture
exhibition facility includes the concept that the exhibition has to be
``open to the public or is made to an assembled group of viewers
outside of a normal circle of a family and its social acquaintances.''
This definition makes clear that someone recording from a television in
his home does not meet that definition. It is important to emphasize
that the clause ``open to the public'' applies specifically to the
exhibition, not to the facility. An exhibition in a place open to the
public that is itself not made to the public is not the subject of this
bill.
Thus, for example, a university film lab may be ``open to the
public.'' However, a student who is watching a film in that lab for his
or her own study or research would not be engaging in an exhibition
that is ``open to the public.'' Thus, if that student copied an excerpt
from such an exhibition, he or she would not be subject to liability
under the bill.
Mr. HATCH. Do the users of hearing aids, cell phones or similar
devices have anything to fear from this statute?
Mrs. FEINSTEIN. Of course not. The statute covers only a person who
``knowingly uses or attempts to use an audiovisual recording device to
transmit or make a copy of a motion picture or other audiovisual work
protected under Title 17, or any part thereof. . . .'' In other words,
the defendant would have to be making, or attempting to make, a copy
that is itself an audiovisual work, or make, or attempt to make, a
transmission embodying an audiovisual work, as that term is defined in
Section 101 of Title 17. As such, the Act would not reach the conduct
of a person who uses a hearing aid, a still camera, or a picture phone
to capture an image or mere sound from the movie.
Mr. HATCH. It appears that there is no fair use exception to this
provision. Is that correct?
Mrs. FEINSTEIN. This is a criminal provision under Title 18, not a
copyright provision under Title 17. Accordingly, there is no fair use
exception included. However, Federal prosecutors should use their
discretion not to bring criminal prosecutions against activities within
movie theaters that would constitute fair use under the copyright laws.
The object of this legislation is to prevent the copying and
distribution of motion pictures in a manner that causes serious
commercial harm. This legislation is not intended to chill legitimate
free speech.
Mr. HATCH. Does the Senator from Texas agree?
Mr. CORNYN. Yes, on all points.
Mr. CORNYN. Mr. President, would the chairman yield for a question?
Mr. HATCH. I would be happy to yield for a question from the
distinguished Senator from Texas.
Mr. CORNYN. As the chairman knows, he and I and our other co-sponsors
have worked throughout this Congress on the provisions of the Family
Entertainment and Copyright Act of 2004 that we have introduced today.
I just want to confirm what I believe to be our mutual understanding
about the effect of certain provisions of the Family Movie Act. Title
II of the Family Entertainment and Copyright Act of 2004 that we
introduced today modifies slightly the Family Movie Act provisions of
H.R. 4077 as passed by the House of Representatives. That bill created
a new exemption in section 110(11) of the Copyright Act for skipping
and muting audio and video content in motion pictures during
performances that take place in the course of a private viewing in a
household from an authorized copy of the motion picture. The House-
passed version specifically excluded from the scope of the new
copyright exemption computer programs or technologies that make
changes, deletions, or additions to commercial advertisements or to
network or station promotional announcements that would otherwise be
displayed before, during, or after the performance of the motion
picture.
My understanding is that this provision reflected a ``belt and
suspenders'' approach that was adopted to quiet the concerns of some
Members in the House who were concerned that a court might misread the
statute to apply to ``ad-skipping'' cases. Some Senators, however,
expressed concern that the inclusion of such explicit language could
create unwanted inferences as to the ``ad-skipping'' issues at the
heart of the recent litigation. Those issues remain unsettled, and it
was never the intent of this legislation to resolve or affect those
issues. In the meantime, the Copyright Office has confirmed that such a
provision is unnecessary to achieve the intent of the bill, which is to
avoid application of this new exemption in potential future cases
involving ``ad-skipping'' devices; therefore, the Senate amendment we
offer removes the unnecessary exclusionary language.
Would the chairman confirm for the Senators present his understanding
of the intent and effect, or perhaps stated more appropriately, the
lack of any effect, of the Senate amendment on the scope of this bill?
Mr. HATCH. My cosponsor, Senator Cornyn, raises an important point.
While we removed the ``ad-skipping'' language from the statute to avoid
this unnecessary controversy, you are absolutely correct that this does
not in any way change the scope of the bill. The bill protects the
``making imperceptible . . . limited portions of audio or video content
of a motion picture . . .'' An advertisement, under the Copyright Act,
is itself a ``motion picture,'' and thus a product or service that
enables the skipping of an entire advertisement, in any media, would be
beyond the scope of the exemption. Moreover, the phrase ``limited
portions'' is intended to refer to portions that are both
quantitatively and qualitatively insubstantial in relation to the work
as a whole. Where any substantial part of a complete work, such as a
commercial advertisement, is made imperceptible, the new section
110(11) exemption would not apply.
The limited scope of this exemption does not, however, imply or show
that
[[Page S501]]
such a product would be infringing. This legislation does not in any
way deal with that issue. It means simply that such a product is not
immunized from liability by this exemption.
Mr. CORNYN. I thank the chairman. I am pleased that we share a common
understanding. If the chairman would yield for one more question about
the Family Movie Act?
Mr. HATCH. Certainly.
Mr. CORNYN. This bill also differs from the House-passed version
because it adds two ``savings clauses.'' As I understand it, the
``copyright'' savings clause makes clear that there should be no
``spillover effect'' from the passage of this law: that is, nothing
shall be construed to have any effect on rights, defenses, or
limitations on rights granted under title 17, other than those
explicitly provided for in the new section 110(11) exemption. The
second, relating to trademark, clarifies that no inference can be drawn
that a person or company who fails to qualify for the exemption from
trademark infringement found in this provision is therefore liable for
trademark infringement. Is that the chairman's understanding as well?
Mr. HATCH. Yes it is. Let me ask that a copy of the section-by-
section analysis of the Family Movie Act as amended by the Senate be
included in the Record. This section-by-section analysis contains a
more complete analysis of the bill as proposed today in the Senate,
including the limited changes made by the bill Senators Leahy, Cornyn,
Biden, and I offer today.
The analysis follows.
Section-by-Section Analysis of the Family Movie Act of 2004, Amended
and Passed by the Senate
overview
Title II of the Family Entertainment and Copyright Act of
2004 incorporates the House-passed provision of the Family
Movie Act of 2004, with limited changes as reflected in this
section-by-section analysis. As discussed herein, these
changes are not intended to and do not affect the scope,
effect or application of the bill.
The purpose of the Family Movie Act is to empower private
individuals to use technology to skip and mute material that
they find objectionable in movies, without impacting
established doctrines of copyright or trademark law or those
whose business models depend upon advertising. This amendment
to the law should be narrowly construed to effect its
intended purpose only. The sponsors of the legislation have
been careful to tailor narrowly the legislation to clearly
allow specific, consumer-directed activity and not to open or
decide collateral issues or to affect any other potential
or actual disputes in the law.
The bill as proposed in the Senate makes clear that, under
certain conditions, ``making imperceptible'' of limited
portions of audio or video content of a motion picture--that
is, skipping and muting limited portions of movies without
adding any content--as well as the creation or provision of a
computer program or other technology that enables such making
imperceptible, does not violate existing copyright or
trademark laws. That is true whether the movie is on
prerecorded media, like a DVD, or is transmitted to the home,
as through pay-per-view and ``video-on-demand'' services.
Subsection (a): Short Title
Subsection (a) sets forth the short title of the bill as
the Family Movie Act of 2004.
Subsection (b): Exemption from Copyright and Trademark
Infringement for Skipping of Audio or Video Content of
Motion Pictures
Subsection (b) is the Family Movie Act core provision and
creates a new exemption at section 110(11) of the Copyright
Act for the ``making imperceptible'' of limited portions of
audio or video content of a motion picture during a
performance in a private household. This new exemption sets
forth a number of conditions to ensure that it achieves its
intended effect while remaining carefully circumscribed and
avoiding any unintended consequences. The conditions that
allow an exemption, which are discussed in more detail below,
consist of the following:
The making imperceptible must be ``by or at the direction
of a member of a private household.'' This legislation
contemplates that any altered performances of the motion
picture would be made either directly by the viewer or at the
direction of a viewer where the viewer is exercising
substantial choice over the types of content they choose to
skip or mute.
The making imperceptible must occur ``during a performance
in or transmitted to the household for private home
viewing.'' Thus, this provision does not exempt an
unauthorized ``public performance'' of an altered version.
The making imperceptible must be ``from an authorized copy
of a motion picture.'' Thus, skipping and muting from an
unauthorized or ``bootleg'' copy of a motion picture would
not be exempt.
No ``fixed copy'' of the altered version of the motion
picture may be created by the computer program or other
technology that makes imperceptible portions of the audio or
video content of the motion picture. This provision makes
clear that services or technologies that make a fixed copy of
the altered version are not afforded the benefit of this
exemption.
The ``making imperceptible'' of limited portions of a
motion picture does not include the addition of audio or
video content over or in place of other content, such as
placing a modified image of a person, a product, or an
advertisement in place of another, or adding content of any
kind.
These limitations, and other operative provisions of this
new section 110(11) exemption, merit further elaboration as
to their purposes and effects.
The bill makes clear that the ``making imperceptible'' of
limited portions of audio or video content of a motion
picture must be done by or at the direction of a member of a
private household. While this limitation does not require
that the individual member of the private household exercise
ultimate decision-making over each and every scene or element
of dialog in the motion picture that is to be made
imperceptible, it does require that the making imperceptible
be made at the direction of that individual in response to
the individualized preferences expressed by that individual.
The test of ``at the direction of an individual'' would be
satisfied when an individual selects preferences from among
options that are offered by the technology.
An example is the C1earPlay model. C1earPlay provides so-
called `` filter files'' that allow a viewer to express his
or her preferences in a number of different categories,
including language, violence, drug content, sexual content,
and several others. The version of the movie that the viewer
sees depends upon the preferences expressed by that viewer.
Such a model would fall under the liability limitation of the
Family Movie Act.
This limitation, however, would not allow a program
distributor, such as a provider of video-on-demand services,
a cable or satellite channel, or a broadcaster, to make
imperceptible limited portions of a movie in order to provide
an altered version of that movie to all of its customers,
which could violate a number of the copyright owner's
exclusive rights, or to make a determination of scenes to be
skipped or dialog to be muted and to offer to its viewers no
more of a choice than to view an original or an altered
version of that film. Some element of individualized
preferences and control must be present such that the viewer
exercises substantial choice over the types of content they
choose to skip or mute.
It is also important to emphasize that the new section
110(11) exemption is targeted narrowly and specifically at
the act of ``making imperceptible'' limited portions of audio
or video content of a motion picture during a performance
that occurs in, or that is transmitted to, a private
household for private home viewing. This section would not
exempt from liability an otherwise infringing performance, or
a transmission of a performance, during which limited
portions of audio or video content of the motion picture are
made imperceptible. In other words, where a performance in a
household or a transmission of a performance to a household
is done lawfully, the making imperceptible limited portions
of audio or video content of the motion picture during that
performance, consistent with the requirements of this new
section, will not result in infringement liability.
Similarly, an infringing performance in a household, or an
infringing transmission of a performance to a household, are
not rendered non-infringing by section 110(11) by virtue of
the fact that limited portions of audio or video content of
the motion picture being performed are made imperceptible
during such performance or transmission in a manner
consistent with that section.
The bill also provides additional guidance, if not an exact
definition, of what the term ``making imperceptible'' means.
The bill provides specifically that the term ``making
imperceptible'' does not include the addition of audio or
video content that is performed or displayed over or in place
of existing content in a motion picture. This is intended to
make clear in the text of the statute what has been expressed
throughout the consideration of this legislation, which is
that the Family Movie Act does not enable the addition of
content of any kind, including the making imperceptible of
audio or video content by replacing it or by superimposing
other content over it. In other words, for purposes of
section 110(11), ``making imperceptible'' refers solely to
skipping scenes and portions of scenes or muting audio
content from the original, commercially available version of
the motion picture. No other modifications of the content are
addressed or immunized by this legislation.
The House sponsor of this legislation noted in his
explanation of his bill, and the Senate is also aware, that
some copy protection technologies rely on matter placed into
the audio or video signal. The phrase ``limited portions of
audio or video content of a motion picture'' means what it
would naturally seem to mean (i.e., the actual content of
the motion picture) and does not refer to any component of
a copy protection scheme or technology. This provision
does not allow the skipping of technologies or other copy-
protection-related matter for the purpose of defeating
copy protection. Rather, it is expected that skipping and
muting of content
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in the actual motion picture will be skipped or muted at
the direction of the viewer based on that viewer's desire
to avoid seeing or hearing the action or sound in the
motion picture. Skipping or muting done for the purpose of
or having the effect of avoiding copy protection
technologies would be an abuse of the safe harbor outlined
in this legislation and may violate section 1201 of title
17.
Violating the Digital Millennium Copyright Act, and
particularly its anti-circumvention provisions, is not
necessary to enable technology of the kind contemplated under
the Family Movie Act. Although the amendment to section 110
provides that it is not an infringement of copyright to
engage in the conduct that is the subject of the Family Movie
Act, the Act does not provide any exemption from the anti-
circumvention provisions of section 1201 of title 17, or from
any other provision of chapter 12 of title 17. It would not
be a defense to a claim of violation of section 1201 that the
circumvention is for the purpose of engaging in the conduct
covered by this new exemption in section 110(11), just as it
is not a defense under section 1201 that the circumvention is
for the purpose of engaging in any other non-infringing
conduct.
There are a number of companies currently providing the
type of products and services covered by this Act. The Family
Movie Act is intended to facilitate the offering of such
products and services, and it certainly creates no impediment
to the technology employed by those companies. Indeed, it is
important to underscore the fact that the support for such
technology and consumer offerings that is reflected in this
legislation is driven in some measure by the desire for
copyright law to be respected and to ensure that technology
is deployed in a way that supports the continued creation and
protection of entertainment and information products that
rely on copyright protection. This legislation reflects the
firm expectation that those rights and the interests of
viewers in their homes can work together in the context
defined in this bill. Any suggestion that support for the
exercise of viewer choice in modifying their viewing
experience of copyrighted works requires violation of either
the copyright in the work or of the copy protection schemes
that provide protection for such work should be rejected as
counter to legislative intent or technological necessity.
The House-passed bill included an explicit exclusion to the
new section 110(11) exemption in cases involving the making
imperceptible of commercial advertisements or network or
station promotional announcements. This provision was added
on the House floor to respond to concerns expressed by
Members during the House Judiciary Committee markup that the
bill might be read somehow to exempt from copyright
infringement liability devices that allow for skipping of
advertisements in the playback of recorded television (so
called ``ad-skipping'' devices). Such a reading is not
consistent with the language of the bill or its intent.
The phrase ``limited portions of audio or video content of
a motion picture'' applies only to the skipping and muting of
scenes or dialog that are part of the motion picture itself,
and not to the skipping of commercial advertisements, which
are themselves considered motions pictures under the
Copyright Act. It also should be noted that the phrase
``limited portions'' is intended to refer to portions that
are both quantitatively and qualitatively insubstantial in
relation to the work as a whole. Where any substantial part
of a complete work (including a commercial advertisement) is
made imperceptible, the section 110(11) exemption would not
apply.
The House-passed bill adopted a ``belt and suspenders''
approach to this question by adding exclusionary language in
the statute itself. Ultimately that provision raised concerns
in the Senate that such exclusionary language would result in
an inference that the bill somehow expresses an opinion, or
even decides, the unresolved legal questions underlying
recent litigation related to these so-called ``ad-skipping''
devices. In the meantime, the Copyright Office also made
clear that such exclusionary language is not necessary. In
other words, the exclusionary language created unnecessary
controversy without adding any needed clarity to the statute.
Thus, the Senate amendment omits the exclusionary language
while leaving the scope and application of the bill exactly
as it was when it passed the House. The legislation does not
provide a defense in cases involving so-called ``ad-
skipping'' devices, and it also does not affect the legal
issues underlying such litigation, one way or another.
Consistent with the intent of the legislation to fix a narrow
and specific copyright issue, this bill seeks very clearly to
avoid unnecessarily interfering with current business models,
especially with respect to advertising, promotional
announcements, and the like. Simply put, the bill as amended
in the Senate is narrowly targeted to the use of technologies
and services that filter out content in movies that a viewer
finds objectionable, and it in no way relates to or affects
the legality of so-called ``ad-skipping'' technologies.
There are a variety of services currently in litigation
that distribute actual copies of altered movies. This type of
activity is not covered by the section 110(11) exemption
created by the Family Movie Act. There is a basic distinction
between a viewer choosing to alter what is visible or audible
when viewing a film, the focus of this legislation, and a
separate entity choosing to create and distribute a single,
altered version to members of the public. The section 110(11)
exemption only applies to viewer directed changes to the
viewing experience, and not the making or distribution of
actual altered copies of the motion picture.
Related to this point, during consideration of this
legislation in the House there were conflicting expert
opinions on whether fixation is required to infringe the
derivative work right under the Copyright Act, as well as
whether evidence of Congressional intent in enacting the 1976
Copyright Act supports the notion that fixation should not be
a prerequisite for the preparation of an infringing
derivative work. This legislation should not be construed to
be predicated on or to take a position on whether fixation is
necessary to violate the derivative work right, or whether
the conduct that is immunized by this legislation would be
infringing in the absence of this legislation. Subsection (b)
also provides a savings clause to make clear that the newly-
created copyright exemption is not to be construed to have
any effect on rights, defenses, or limitations on rights
granted under title 17, other than those explicitly provided
for in the new section 110(11) exemption.
Subsection (c): Exemption from Trademark Infringement
Subsection (c) provides for a limited exemption from
trademark infringement for those engaged in the conduct
described in the new section 110(11) of the Copyright Act. In
short, this subsection makes clear that a person engaging in
the conduct described in section 110(11)--the ``making
imperceptible'' of portions of audio or video content of a
motion picture or the creation or provision of technology to
enable such making available--is not subject to trademark
infringement liability based on that conduct, provided that
person's conduct complies with the requirements of section
110(11). This section provides a similar exemption for a
manufacturer, licensee or licensor of technology that enables
such making imperceptible, but such manufacturer, licensee or
licensor is subject to the additional requirement that it
ensure that the technology provides a clear and conspicuous
notice at the beginning of each performance that the
performance of the motion picture is altered from the
performance intended by the director or the copyright holder.
Of course, nothing in this section would immunize someone
whose conduct, apart from the narrow conduct described by
110(11), rises to the level of a Lanham Act violation. For
example, someone who provides technology to enable the making
imperceptible limited portions of a motion picture consistent
with section 110(11) could not be held liable on account of
such conduct under the Trademark Act, but if in providing
such . . .
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