[Congressional Record Volume 151, Number 47 (Tuesday, April 19, 2005)]
[House]
[Pages H2114-H2120]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005
Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass
the Senate bill (S. 167) to provide for the protection of intellectual
property rights, and for other purposes.
The Clerk read 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,
[[Page H2115]]
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 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''.
[[Page H2116]]
(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 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
[[Page H2117]]
``(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 ``13''.
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''.
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)''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Wisconsin (Mr. Sensenbrenner) and the gentleman from California (Mr.
Berman) each will control 20 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
General Leave
Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous material on S. 167, currently
under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, S. 167 includes several intellectual property-related
measures that were considered during the previous Congress, but were
unable to be acted on by both Houses prior to adjournment.
Notably, this legislation addresses the growing desire of parents to
be able to control what their children see in the privacy of their own
homes. One component of this legislation, the Family Movie Act,
clarifies that existing copyright and trademark law cannot be used to
prevent a parent from utilizing available technology to skip over
portions of a movie they may find objectionable.
The legislation also addresses the rampant piracy problem facing our
Nation's creative community. New technologies have made theft and
duplication of copyrighted works easier than ever before. The number of
pirated films continues to increase, causing severe harm to the bottom
line of our Nation's copyright holders. Additionally, the theft,
duplication and mass distribution of copyrighted works represents a
drain on our economy, shrinking the global demand for legitimately
acquired works.
By setting forth Federal criminal penalties, this legislation
addresses the serious problem of individuals using camcorders to record
recently released movies that are then copied and sold on the black
market. Additionally, this legislation establishes criminal penalties
for the distribution of a copyrighted computer program, musical work or
motion picture by making it available on a computer network accessible
to members of the public if the person knew, or should have known, that
the work was a copyrighted work intended for commercial distribution.
Finally, this legislation reauthorizes the Film Preservation Board at
the Library of Congress and corrects a technical error in the Sonny
Bono Copyright Term Extension Act that had the unintended effect of
limiting the ability of libraries and archives to access older
copyrighted works.
Mr. Speaker, I urge the Members to support this legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. BERMAN. Mr. Speaker, I yield myself 6 minutes.
Mr. Speaker, I rise in support of S. 167, and I ask my colleagues to
join me in voting to pass this worthy legislation.
Prior to reporting S. 167 by voice vote last month, the Committee on
the Judiciary gave the bill all due deliberation. The provisions in
this bill and its precursor, H.R. 4077, which passed the House last
year, were the subject of multiple subcommittee hearings and markups.
Through the extensive consideration given on the provisions of S.
167, the Committee on the Judiciary has agreed to a bill that makes
important contributions to the fight against the proliferation of
pirated copyrighted works and that encourages the preservation and
protection of creative content.
{time} 1430
In addition to providing us with entertainment and education in the
form of movies, sound recordings, software, books, computer games and
other products, the core copyright industries account for over 6
percent of U.S. gross domestic product. Businesses that rely on
copyright employ more than 11 million U.S. workers. Robust protection
for creativity supports everyone from the most famous artist to the
completely unknown set designer.
Unfortunately, copyright piracy has become a grave threat to the
livelihoods of all copyright creators. We live in an environment where
consumers want their choice of entertainment to be available at any
time, in any place, in any format. While copyright owners are excited
by the new opportunities to allow greater access to their works, they
must battle with those that give away their products for free.
Pirates have taken over the ship of distribution and now provide
users with sound recordings before they are released, copies of movies
for $1 on the street, and pirated computer software as part of the sale
of computers. Without adequate copyright protection, the developers and
creators of new and original works have no protection from the rampant
theft of their work that goes on every day. While not a magic bullet,
S. 167 will play a valuable role in addressing the piracy problem. Last
year's bill provided more expansive protection. However, S. 167
contains important disincentives to the making of unauthorized use of a
copyrighted work. It isolates a number of areas necessary to preserve
the integrity of the works.
It has become clear that pirates are most harmful when a creator
delivers a new or highly anticipated product. Title I of S. 167 is
designed to prevent the pirates from obtaining an initial copy of a
motion picture through camcording or distributing by computer network a
work being prepared for commercial distribution. Section 102 clarifies
that it is a felony to surreptitiously record a movie in a theater.
This section deals with the growing phenomenon of copyright thieves who
use portable digital video recorders to record movies of theater
screens during public exhibitions. Organized piracy rings then
distribute copies of these surreptitious recordings both online and on
the streets.
This section also provides immunity for a movie theater owner who
detains
[[Page H2118]]
a person who is camcording the movie. It also allows those affected by
the crime to file a victim impact statement to illustrate the loss
accrued by the piracy. This, hopefully, will deter those who contribute
to the ease with which pirated material is obtained.
Even more detrimental to copyright owners than camcording a movie in
the theaters is the effect of distributing an unauthorized copy of a
movie or sound recording as it is prepared for commercial distribution.
Distributing a film before final edits are made can undermine artistic
integrity and can also harm the film's commercial prospects because the
release is typically coordinated with a marketing effort. Sections 103
and 104 provide for enhanced penalties for prerelease of a work being
prepared for commercial distribution. Furthermore, it requires the
Copyright Office to establish rules for preregistration of works. We
need to address the problems generated when new works are leaked and
pirated before they are made available for sale, the prerelease
problem.
For example, today, any basement can become a top-of-the-line
recording studio, so the law and Copyright Office regulations must
reflect the realities of the fast-paced creative entertainment
businesses. Unauthorized prereleases are unfair to an artist because
his or her song is circulating even before it is in its final form.
Just as we edit letters and speeches, we must allow songwriters to
tweak and refine their works. They deserve to have the tools to
penalize those who thrive on the ability to leak a song or CD before it
is available in stores or other legitimate avenues of commerce.
This bill also addresses consumer concerns related to preserving
content in orphan works, those works not available in the marketplace
at a reasonable price. In section 402 of the bill, we have amended the
Copyright Act to enable libraries and archives to reproduce,
distribute, perform, and display all orphan works in the course of
their preservation, scholarly and research activities.
Furthermore, sections 302 and 312 ensure that the National Film
Preservation Board and the National Film Preservation Foundation are
reauthorized. These groups help maintain our history of film, which
helps foster the creative process.
Title III of S. 167 did generate some concern during the hearings
held by the Committee on the Judiciary because it resolves a legal
question at the heart of a pending Federal litigation. The Family Movie
Act inappropriately intervenes in this pending legislation, shields one
specific company from liability for altering the viewed performance.
Directors should have the ability to control the content they create.
Although I personally oppose this section, I, like many Members of the
Committee on the Judiciary, believe that the bulk of the anti-piracy
provisions contained in S. 167 are essential and therefore support the
bill as a whole.
The provisions included in S. 167 are derived from a more expansive
bill passed by the House last year, H.R. 4077, which contained multiple
sections designed to give additional resources statutory authority and
incentives to law enforcement authorities to make them productive
participants in the anti-piracy battle.
There were also several provisions addressing the problem of
copyright infringing files being illegally offered for distribution
through peer-to-peer file-swapping networks. I urge the committee and
my colleagues to include these provisions in future legislation.
It is worth noting that, while not universally embraced, S. 167 has
gained widespread consensus support. Groups as diverse as the Video
Software Dealers Association, the American Association of Law
Libraries, and the American Medical Association have written in
support. On balance, S. 167 is an important advancement in the ongoing
effort to battle copyright piracy, and I encourage my colleagues to
join me in supporting it.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield 6 minutes to the gentleman
from Texas (Mr. Smith).
Mr. SMITH of Texas. Mr. Speaker, first of all I want to thank the
gentleman from Wisconsin (Mr. Sensenbrenner), the chairman of the
Committee on the Judiciary, for yielding me this time.
Mr. Speaker, this legislation contains four main components: first,
the Family Movie Act, which I first introduced in the last Congress,
will enable parents to skip over or mute the sex, violence, and
profanity in movies they find objectionable for their children.
Second, the Art Act will create new penalties for those who camcord
movies in public theaters and who willfully infringe copyright law by
distributing copies of prerelease works, movies or otherwise, online.
Third, a reauthorization of the Film Preservation Board will protect
older works that would otherwise deteriorate.
Finally, a technical fix to the Sonny Bono Copyright Term Extension
Act will ensure that libraries and archives have continued access to
works during the last 20 years of a copyright term.
As for the Family Movie Act, it lets parents decide for themselves
what their children see and hear on television. These days, I do not
think anyone would even consider buying a DVD player that does not come
with a remote control; yet there are some who would deny parents the
right to use the equivalent electronic device that would protect their
children from sex, violence, and profanity in movies watched at home.
Raising children may be the toughest job in the world. Parents need
all the help they can get, and they should be able to determine what
their children see on the screen. Yes, we parents might mute dialogue
that others deem crucial, or we might fast forward over scenes that
others consider essential, but that is irrelevant. Parents should be
able to mute or skip over anything they want if they feel it is in the
best interest of their children.
Just as the author of a book should not be able to force someone to
read that book in any particular manner or order, a studio or director
should not be able to force our children to watch a movie in a
particular way. No one can argue with a straight face it should be
against the law to skip over a few pages or even entire chapters of a
book. So, too, it should not be illegal to skip over a few words or
scenes in a movie. The Family Movie Act ensures that parents have such
rights.
In fact, the Registrar of Copyrights testified that such actions by
parents are not in violation of existing copyright law. But needless
litigation continues on this issue. It is time for the rights of
parents not to be tied up in the courts any longer.
Turning to other provisions within this bill, millions of pirated
movies, music, software, games, and other copyrighted files are now
available for a free download by certain peer-to-peer networks. Many of
these files are the latest movies, music, software, and games that have
yet to be released to the public in legal copies. Title I of the
legislation focuses on these prereleased copies of works that are
distributed on computer networks before they are available in legal
copies to the public.
Such activity is clearly wrong; yet existing law does not create a
penalty targeted at this activity. Title I creates a minimum penalty of
3 years in jail for those who undertake such activity. Combined with
the camcording provisions in title I, this legislation will impose new
and significant penalties on organized groups that camcord movies on
the first day of their release and then distribute pirated DVDs the
following day on streets worldwide.
Title III of the legislation reauthorizes the Film Preservation Board
at the Library of Congress. Title IV corrects a technical error in the
Sonny Bono Copyright Term Extension Act that had the result of limiting
library and archive access to older works.
Mr. Speaker, this legislation represents a combination of important
public policy objectives. I encourage my colleagues to support the
measure and send it to the President's desk for his signature.
Mr. BERMAN. Mr. Speaker, I am pleased to yield 5 minutes to my
colleague, the gentlewoman from California (Ms. Watson), the founder
and chair of the Congressional Entertainment Caucus, and a very
diligent fighter for the protection of intellectual property and the
vibrancy of an industry very important to our area and to the country.
[[Page H2119]]
Ms. WATSON. Mr. Speaker, I rise in support of S. 167, the Family
Entertainment and Copyright Act of 2005, which strengthens our Nation's
intellectual property rights system and further protects and rewards
our Nation's artists for their creative products.
I supported this bill during the last Congress, and I look forward to
seeing its eventual enactment in the coming weeks. This bill closes
several significant gaps in our copyright laws that have contributed to
the epidemic of digital piracy today. It outlaws camcording of movies
off of theater screens by making it a Federal crime. It also empowers
judges to impose up to 5-year prison terms for persons convicted of
distributing copyrighted songs and movies on file-sharing networks for
financial gain. I believe these provisions create crucial tools to
combat the theft and redistribution of valuable intellectual property.
With our movie industry losing about $3 billion to piracy every year,
it is time that Congress demonstrates its support for our Nation's
creators and artists by strengthening protection of copyrighted
products. In addition, the bill strengthens our Nation's film heritage
by reauthorizing the National Film Preservation Board and the National
Film Preservation Foundation that have worked successfully to preserve
historically or culturally significant films. Their fine work will
ensure our collective artistic heritage will be preserved for
generations to come.
Finally, I want to point out that despite my overall support for the
bill, I disagree with title II of the legislation, which shields
companies that make movie-filtering systems from liability for
copyrighting infringements. The intent of the movie-filtering
technology is to sanitize movies to protect children. While I support a
family-friendly entertainment, I believe this method is not only a
violation of film makers' copyright protections but also an
infringement of their artistic vision.
Just yesterday, the Washington Post reported that companies
sanitizing films removed 24 minutes from the part of the movie ``Saving
Private Ryan'' depicting the landing at Omaha Beach on D-Day and
eliminated racial epithets uttered by police officials against African
American boxer Rubin Carter in ``The Hurricane.'' Both are central to
the themes of the movies. Such editing may be done in the name of
protecting children, but often reflect our political or ideological
biases of the censors. I want to make it clear that my general support
of the bill is no way an endorsement of film sanitization.
Mr. Speaker, I urge my colleagues to support S. 167, and it is my
hope that we will keep the dialogue open regarding the ever-changing
landscape of technology, censorship, and creativity in our country.
{time} 1445
Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman
from Utah (Mr. Cannon).
Mr. CANNON. Mr. Speaker, I rise today in support of S. 167. I commend
the gentleman from Texas (Mr. Smith) for introducing the House
counterpart of this legislation, and I commend the gentleman from
Wisconsin (Chairman Sensenbrenner) and the gentleman from California
(Mr. Berman) for their continued diligence in bringing this legislation
to the floor.
Mr. Speaker, included in Title II of this legislation is the Family
Movie Act of 2005. This title clarifies the Copyright Act so families,
in the privacy of their homes, can use technology that allows them to
skip or mute objectionable content in legally purchased or rented DVDs.
Parents should have the right to watch any movie they want and to skip
over or mute any content they find objectionable. This legislation will
allow parents to have the final say in what their children watch in the
privacy of their homes, and parents should have the option to protect
their children from the sex, violence, profanity and other
objectionable material found in movies that are produced in Hollywood
these days.
This legislation allows them to do so by clarifying the exemption in
the copyright infringement law allowing people to skip, mute or avoid
scenes on DVDs. This legislation does not allow for the modifying of
the underlying content of the movie, it merely allows fast forwarding
or muting portions of the movie or sound track.
Thanks to this legislation, parents can control the content their
children view without having to hold a finger on the remote control and
anticipate scenes they might find objectionable.
Mr. Speaker, technology that helps parents accomplish this goal
should be applauded. S. 167 will allow for technology innovation to
flourish without having to face continued legal challenges. This bill
is an ideal solution that can be used by families in the home, and does
not require limits to be placed on content the studios develop.
I support this legislation. I urge the support of my colleagues.
Mr. BERMAN. Mr. Speaker, I yield myself 2 minutes.
Mr. Speaker, my better judgment notwithstanding, the arguments on
this one aspect of the bill on which the majority and I disagree
requires me to make just a couple of points.
There is no one who thinks parents do not have and should not have
the right to skip over, pass up or omit scenes of any video production
they think are inappropriate for their children to see. No one debates
that. No one debates they have the right to do that.
What some of us do debate is the right of a commercial enterprise to
peddle a technology which fundamentally alters the creator's work any
more than some publisher has the right to take an unabridged version of
a book that is under copyright, in order to excerpt and take out
objectionable patches of that book, and then make a commercial profit
without the permission of the copyright owner in peddling that book.
That is the issue underlying our opposition to the Family Movie Act.
Parents should have all of these rights, including the right to just
say ``no'' to their kids watching a movie or reading a book that is not
appropriate. There is no dispute about that. This is a dispute about a
particular type of technology that this bill seeks to immunize from
liability for employing some young people to decide what someone else
should see and not see. But I will not get myself too worked up about a
bill that I plan to actively support.
Mr. CONYERS. Mr. Speaker, I rise in support of this legislation with
reservations about one part. At the outset, I strongly support efforts
to make it more difficult to steal content and to encourage
preservation of historic content.
As I have said before, the content industries are a boon to our
economy, providing this country's number one export. Their products,
which include music, movies, books, and software, survive on the
protection given by copyright law. Without protection from rampant
copying and other infringement, creators would have no reason to keep
creating and investing in new content.
The success of copyrighted content, however is also its Achilles'
Heel. People now camcord movies in theaters to sell online or in DVD
format. They obtain pre-release copies of content and sell it online.
Of course, this is illegal because it is done without the permission of
the content owners and without payment to them. This bill clarifies
that these two acts are illegal even if technology makes it easy and
fast and cheap. While I believe we should do more to stop piracy, S.
167 is a step in the right direction.
Having said that, I would like to clarify one issue. The civil
enforcement said of the pre-release provision imposes a statute of
limitations on certain copyright lawsuits. Because it imposes the limit
only for infringements that occur no more than two months after pre-
registered content is first distributed, it is clear that the bill does
not impose any time limit on filing lawsuits for infringements that
occur more than two months after distribution.
The bill also contains two provisions that will encourage the
preservation of historically-significant content. First, it
reauthorizes the National Film Preservation Board and National Film
Preservation Foundation, which review initiatives to ensure the
preservation of valued films and issue grants to libraries and other
institutions that can save films from degradation. The Directors Guild
of America and the Academy of Motion Picture Arts and Sciences have
applauded these efforts. The program expired in 2003, so S. 167 extends
it until 2009.
The second preservation piece, the ``Preservation of Orphan Works
Act,'' will empower libraries and archives to make additional copies of
musical works, movies, and other content.
My one objection to S. 167, however, is with the ``Family Movie
Act,'' which would allow private companies to sell movie editing
software
[[Page H2120]]
without permission from the filmmakers. This was proposed in response
to a lawsuit between one company and filmmakers. From our consideration
of this provision last year, we know this section inserts Congress into
a private dispute and will take away the copyrights and artistic rights
of filmmakers to the financial benefit of one private company. It is
important to note that the bill does not immunize those who make fixed
copies of edited content; such copies would still be illegal, as they
are today, and the legislative history should reflect that.
I urge my colleagues to vote ``yes'' on this legislation.
Mr. BERMAN. Mr. Speaker, I yield back the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Issa). The question is on the motion
offered by the gentleman from Wisconsin (Mr. Sensenbrenner) that the
House suspend the rules and pass the Senate bill, S. 167.
The question was taken; and (two-thirds having voted in favor
thereof) the rules were suspended and the Senate bill was passed.
A motion to reconsider was laid on the table.
____________________