[Congressional Record Volume 154, Number 66 (Thursday, April 24, 2008)]
[Senate]
[Pages S3403-S3408]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. CASEY (for himself and Ms. Stabenow):
S. 2906. A bill to require a report on invasive agricultural pests
and diseases and sanitary and phytosanitary barriers to trade before
initiating negotiations to enter into a free trade agreement, and for
other purposes; to the Committee on Finance.
Mr. CASEY. Mr. President, I rise today to introduce the Agriculture
Smart Trade Act along with my colleague Senator Stabenow. The goal of
this legislation is to ensure that, as we consider the various free
trade agreements that come before the Senate, we are taking a look at
the big picture, including the increased risk of accidently importing
invasive pests or diseases and the ability for American agricultural
producers to access new export markets once trade agreements are in
effect. Our bill is supported by United Fresh, the national association
of fruit and vegetable growers and processors, and the U.S. Apple
Association.
The bill has two main components. First, it requires the
Administration to send a report to Congress prior to the start of
formal trade negotiations with a foreign nation detailing potential
invasive pests and disease that could pose a risk to U.S. agriculture.
Furthermore, this report must identify what additional agricultural
inspectors and other personnel are needed to prevent these pests and
diseases from being brought into the United States.
Second, the bill requires the Administration to disclose in the same
report all sanitary and photosanitary, or SPS, trade barriers that
could unduly restrict export markets for American commodities. What
we've seen in the past is that a trading partner will raise SPS
barriers to prevent American products from entering their country. Some
of these SPS barriers are not grounded in science are simply non-tariff
trade barriers. As the Administration begins negotiations for a trade
agreement, we all need to take a look at what kinds of SPS issues we
have with potential trading partners. Are their SPS concerns based in
science? We need to be sure that once an agreement is in effect, we
will have access to those foreign markets as stipulated in the trade
agreement.
I want to make clear that this bill does not in any way limit the
President's authority to negotiate trade agreements under Fast-Track,
nor does it prevent trade legislation from being considered by the
Congress. What this bill does is provide the Senate and the House of
Representatives with a more complete picture of what potential trade
agreements involve beyond the obvious import and export quotas.
[[Page S3404]]
Regardless of how any senator feels about the free trade agreements
that we review and debate, I think all of my colleagues will agree with
me that increased international trade means an increased risk of
importing bugs and diseases that have the potential to devastate our
food sources, jeopardize the livelihoods of our farmers, and cost our
states a fortune. We need to acknowledge the risk and put in place the
best safeguards we can to prevent the accidental introduction of these
harmful pests.
I am not merely speculating about the risk of invasive pests and
disease. It is a fact that all of our States are battling insects and
crop diseases and dreading the next outbreak. Most recently in
Pennsylvania we discovered that the western part of our state is
infested with the Emerald Ash Borer, an invasive beetle that was
accidently imported to the U.S. through Detroit via wooden shipping
pallets from China. This beetle is costing our commercial nursery
growers millions of dollars in lost stock. Senator Stabenow knows
better than anyone how much money, time and other resources the Ash
Borer has cost the States of Michigan, Illinois, Indiana, Ohio, and
Pennsylvania. But that's just one example. Orange growers in Florida
have spent the past decade fighting to contain and eradicate citrus
canker, an invasive disease that causes citrus trees to produce less
and less fruit until they prematurely die. And California and Texas
have dealt with expensive eradication programs to deal with the
Mediterranean fruit fly or ``Med fly.''
The list goes on and on. And there isn't a single State that has not
been impacted by invasive pests or diseases. So I hope that my
colleagues will support the Agriculture Smart Trade Act, and help us
make smart decisions that will protect our growers and our economy
while opening new export markets. Because that is what this bill is
about--smart trade.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record following my remarks.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2906
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 ``Agriculture Smart Trade
Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Free trade agreement.--The term ``free trade
agreement'' means a trade agreement entered into with a
foreign country that provides for--
(A) the reduction or elimination of duties, import
restrictions, or other barriers to or distortions of trade
between the United States and the foreign country; or
(B) the prohibition of or limitation on the imposition of
such barriers or distortions.
(2) Invasive agricultural pests and diseases.--The term
``invasive agricultural pests and diseases'' means
agricultural pests and diseases, as determined by the
Secretary of Agriculture--
(A) that are not native to ecosystems in the United States;
and
(B) the introduction of which causes or is likely to cause
economic or environmental harm or harm to human health.
(3) Sanitary and phytosanitary measure.--The term
``sanitary and phytosanitary measure'' has the meaning given
that term in the Agreement on the Application of Sanitary and
Phytosanitary Measures of the World Trade Organization
referred to in section 101(d)(3) of the Uruguay Round
Agreements Act (19 U.S.C. 3511(d)(3)).
SEC. 3. REQUIREMENT FOR REPORTS BEFORE INITIATING
NEGOTIATIONS TO ENTER INTO FREE TRADE
AGREEMENTS.
(a) In General.--Not later than 90 days before the date on
which the President initiates formal negotiations with a
foreign country to enter into a free trade agreement with
that country, the President shall submit to Congress a report
on--
(1) invasive agricultural pests or diseases in that
country; and
(2) sanitary or phytosanitary measures imposed by the
government of that country on goods imported into that
country.
(b) Contents of Report.--The report required under
subsection (a) shall include the following:
(1) Invasive agricultural pests and diseases.--With respect
to any invasive agricultural pests or diseases in the country
with which the President intends to negotiate a free trade
agreement--
(A) a list of all invasive agricultural pests and diseases
in that country;
(B) a list of agricultural commodities produced in the
United States that might be affected by the introduction of
such pests or diseases into the United States; and
(C) a plan for preventing the introduction into the United
States of such pests and diseases, including an estimate of--
(i) the number of additional inspectors, officials, and
other personnel necessary to prevent such introduction and
the ports of entry at which the additional inspectors,
officials, and other personnel will be needed; and
(ii) the total cost of preventing such introduction.
(2) Sanitary and phytosanitary measures.--With respect to
sanitary or phytosanitary measures imposed by the government
of the country with which the President intends to negotiate
a free trade agreement on goods imported into that country--
(A) a list of any such sanitary and phytosanitary measures
that may affect the exportation of agricultural commodities
from the United States to that country;
(B) an assessment of the status of any petitions filed by
the United States with the government of that country
requesting that that country allow the importation into that
country of agricultural commodities produced in the United
States;
(C) an estimate of the economic potential for the
exportation of agricultural commodities produced in the
United States to that country if the free trade agreement
enters into force; and
(D) an assessment of the effect of sanitary and
phytosanitary measures imposed or proposed to be imposed by
the government of that country on the economic potential
described in subparagraph (C).
______
By Ms. SNOWE (for herself and Mr. Brown):
S. 2910. A bill to require brokers to disclose and pay independent
truckers for any fuel surcharges received from shippers that relate to
fuel costs paid for by the truckers; to the Committee on Commerce,
Science, and Transportation.
Ms. SNOWE. Mr. President, I rise to introduce legislation that I
believe is vital to the survival and competitiveness of our nation's
trucking industry. For too long, our small business motor freight
carriers, who struggle every day to make ends meet, have had their
concerns ignored and neglected. Today, as the entire trucking industry
faces monumental economic challenges spurred by skyrocketing, record-
breaking oil prices and exorbitant and volatile fuel costs, not to
mention a detrimental slow-down in the hiring of new drivers, our
independent operators are having to contend with a devastating economic
downturn and enduring business failures--the likes of which this
country has not seen since 2000.
During the first quarter of 2008, nearly one thousand motor carriers
failed, and they were not just trucking companies with two or three
trucks, but the average number of vehicles numbered 45 trucks! As you
can imagine, the financial impact is enormous, especially given that
the Bureau of Transportation Statistics projects freight to grow by
more than 70 percent by 2020. Forestalling action is not an option if
we are to sustain our trucking industry which is an undeniable,
economic lifeline of this nation.
That is why I have taken this opportunity to join with Senator Brown
in introducing the Trust in Reliable Understanding of Consumer Costs
(TRUCC) Act which would provide our small business operators and
carriers with the long-denied fairness that is owed to them. It is time
that these hard-working men and women free from stranglehold of
unscrupulous brokers and middle-men who charge shippers for fuel costs,
but refuse to pass on those costs to operators who actually pay for the
fuel. Our bill would provide not only a clear line-item delineating the
fuel surcharge in the contracts provided to our small business
carriers, but also would guarantee that the entity in the transaction--
whether a shipper, broker, or driver--who absorbs the consistently-
rising cost of fuel will become the recipient of the fuel surcharge.
To our measure's detractors who mischaracterize it, calling it among
other things--outrageous, I want to remind them that our focus is on
small business motor carriers which comprise more than 90 percent of
the truck industry, and that these individuals continue to traverse the
country, carrying consumer goods and propelling our economy forward in
the process. And they do so, despite the constant challenges that are
part and parcel of this occupation . . . brokers who obfuscate the
amount or even existence of fuel surcharges to the benefit of their own
coffers, the escalation of fuel prices, maintenance costs for their
vehicles,
[[Page S3405]]
the long days or weeks of travel--sacrificing time away from their
families in order to make a living, feed their families, and finance
the education of their children. And so, Mr. President, I ask, how can
we afford to turn a blind eye to the plight of these Americans whose
livelihood is so integral to commerce in the great country? Merely
wishing the problem away or simply keeping it out of sight and out of
mind is neither tenable nor acceptable.
Make no mistake, not all brokers are bad actors, nor are all small
business operators being exploited. That is precisely why the
legislation Senator Brown and I are offering today does not place
onerous burdens on the logistics industry. We merely seek to ensure
that an industry under siege on several fronts receives what its
purveyors are rightfully entitled to--equitable treatment and a modicum
of transparency. Is it too much to ask that they may see for themselves
in a transaction who, if anyone, is receiving a fuel surcharge, and how
much is being paid out for the cost of fuel? Is it too much to ask for
an assurance that, if the motor carrier is willing to pay the high cost
of fuel at the pump while transporting goods across this nation, that
carrier will be reimbursed? The answer to both questions is a
resounding, ``No!'' The solution to addressing this regrettable
situation is our common-sense legislation the consideration of which is
long overdue.
I urge all my colleagues who have small business motor carriers in
their state to consider seriously this issue and lend their strong
support to this welcomed legislation.
______
By Ms. MURKOWSKI (for herself and Mrs. Murray):
S. 2911. A bill to improve vaccination rates among children; to the
Committee on Health, Education, Labor, and Pensions.
Ms. MURKOWSKI. Mr. President, today, I join with my colleague Senator
Murray in introducing legislation that will help bolster childhood
immunization in those parts of our country where immunization rates are
much too low. Since the beginning of the 20th century, vaccines have
completely eradicated the once frequent killer smallpox and almost
eradicated polio. Vaccines save lives, avert communicable diseases and
reduce health care spending for preventable diseases. We must continue
in our efforts to achieve childhood immunization rates of 90 percent by
2010 and with passage of this bill, we can do just that.
Vaccines are one of the most effective tools for prevention of
disease. According to the Centers for Disease Control and Prevention,
for every $1 spent on vaccines, America saves $18.60 in both medical
costs and societal costs. But more important than the cost saving is
the weight and value we must place on ensuring that children are fully
vaccinated. We must not lose one more child to a vaccine preventable
disease. Childhood vaccines prevent over 10 million cases of infectious
illness and nearly 34,000 childhood deaths in America every year.
Clearly, vaccines are a tried and true way to not only reduce health
care costs, but also to keep our children healthy.
The legislation Senator Murray and I are introducing today authorizes
funding for effective interventions recommended by the Task Force on
Community Preventive Services and helps to achieve childhood
immunization rates of 90 percent by 2010. First, the legislation
authorizes additional funding for a demonstration program allowing
Women, Infant and Children clinics, also known as ``WIC'' to play a
greater role in childhood immunizations. This is achieved by
recommending vaccines to WIC recipients, coordinating care or
immunization services, or employing an immunization coordinator. More
than 45 percent of U.S. infants receive benefits through WIC clinics. A
2002 study by the National Foundation for Infectious Diseases
recommended coordinating government benefits to keep children up-to-
date with their immunizations and noted that WIC programs have
successfully accomplished this in numerous communities. Our legislation
would enhance such efforts and would even go a step further to require
that any grantee using these funds have access to the State
Immunization Information System to better coordinate immunization
screenings and services.
Second, this legislation authorizes additional funding for the
Centers for Disease Control and Prevention to conduct public, age
appropriate immunization awareness campaigns and immunization education
and outreach activities. Research shows that outreach, coupled with the
coordination of immunization and WIC clinics, can increase childhood
immunization rates by of approximately 12 percent.
Lastly, this legislation establishes a sense of the Senate concerning
the importance of electronic record coordination by both the Secretary
of Health and Human Services and the Director of the Centers for
Disease Control and Prevention, CDC, and that these leaders should work
together to improve the integration of immunization information systems
with electronic medical records, health information systems, and health
information exchanges.
Vaccine preventable diseases will continue to be a threat to our
Nation's most vulnerable population if we do not ensure proper
vaccination among infants. Through this legislation, we can work to
achieve the Healthy People 2010 objective of vaccinating 90 percent of
all children by age two. To take a quote from a former First Lady of
the United States and a cofounder of the organization Every Child by
Two ``No child in America should have to get sick from a vaccine
preventable disease. It's time for us to redouble efforts to protect
the 20 percent of preschoolers who are routinely not being immunized on
time.'' The Infant Immunization Improvement Act will be a vital first
step to increasing vaccination rates and will serve as an important
safeguard against the spread of communicable diseases. I would like to
thank the Partnership for Prevention for their input on this
legislation and the 156 members of the 317 Coalition for endorsing the
Infant Immunization Improvement Act. I urge my colleagues to cosponsor
this legislation--because leaving a single child unprotected is one too
many.
______
By Mr. LEAHY (for himself and Mr. Hatch):
S. 2913. A bill to provide a limitation on judicial remedies in
copyright infringement cases involving orphan works; to the Committee
on the Judiciary.
Mr. LEAHY. Mr. President, today, I join once again with Senator Hatch
to introduce a bill that will have a significant and positive impact on
our cultural heritage. Hundreds of thousands of so-called ``orphan
works''--works that may be protected by copyright, but whose owners
cannot be identified or located--are collecting dust. Despite
tremendous interest in using these orphan works in new collections and
new creations, they often languish unseen, because those who would like
to bring them to light, and to the attention of the world, fear the
prospect of prohibitively expensive statutory damages. In other
instances, the copyright in an orphan work may have expired, but
potential users lack the information to be certain of the propriety of
going forward with its use.
The Shawn Bentley Orphan Works Act of 2008 will remedy this
situation. It will help potential users of orphan works find the owners
of those works, and it will help the owners to receive compensation.
The works will no longer be orphans; their owners will reap the
financial benefits of their use, while the public reaps the creative
benefits. More creative works will be used, contributing to our
cultural and artistic heritage, and more creators will receive
compensation for use of their work.
Our legislation permits the use of an orphan work only if the
potential user performs and documents a good faith search for the
copyright owner. If users cannot locate and contact copyright owners,
they may use the orphan work. But if copyright owners later make
themselves known, and if users have performed a search that qualifies
under this legislation, owners are entitled to reasonable compensation.
The user will not be liable for full statutory damages in those
circumstances, but if a user does not perform that good faith search,
the user will face up to $150,000 in statutory damages.
In practical terms, then, what does this mean? It means that a woman
in Vermont can restore a wedding photograph of her grandparents, even
if she
[[Page S3406]]
cannot locate the photographer to get permission to do so. It means
that a library can display letters of American soldiers wrote during
World War II, even if the library cannot contact the soldiers or their
descendents. It means that museums can exhibit Depression-era
photographs, even if they cannot determine the name of the
photographer.
What this bill does not do is create a ``license to infringe.'' In
any of the above instances, if the users do not conduct a good faith
search for the copyright owner, those users are in the same boat they
are in now when it comes to infringement. This bill does not change the
basic premise of copyright law: If you use the copyrighted works of
others, you must compensate them for it. As an avid photographer, I
understand what it means to devote oneself to creative expression, and
I applaud anyone with the talent and commitment to make a living doing
so. Orphan works are too important to our families, our communities,
and our culture to go left unseen and unused.
I thank Senator Hatch for his help in developing this legislation,
and I look forward to working with him to ensure that this bill becomes
law. I am especially pleased to name this bill for Shawn Bentley.
Several years ago, Shawn died, tragically young, but he left behind a
legacy of affection and regard for all of us who knew him. He served
Senator Hatch as a counsel for intellectual property, and it was he who
first inspired this effort on orphan works. Naming this bill for him is
a testament to his dedication to the issue, and his value to the
Judiciary Committee.
I ask unanimous consent that the full bill text be included in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2913
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 ``Shawn Bentley Orphan Works
Act of 2008''.
SEC. 2. LIMITATION ON REMEDIES IN CASES INVOLVING ORPHAN
WORKS.
(a) Limitation on Remedies.--Chapter 5 of title 17, United
States Code, is amended by adding at the end the following:
``Sec. 514. Limitation on remedies in cases involving orphan
works
``(a) Definitions.--In this section, the following
definitions shall apply:
``(1) Materials and standards.--The term `materials and
standards' includes--
``(A) the records of the Copyright Office that are relevant
to identifying and locating copyright owners;
``(B) sources of copyright ownership information reasonably
available to users, including private databases;
``(C) industry practices and guidelines of associations and
organizations;
``(D) technology tools and expert assistance, including
resources for which a charge or subscription fee is imposed,
to the extent that the use of such resources is reasonable
for, and relevant to, the scope of the intended use; and
``(E) electronic databases, including databases that are
available to the public through the Internet, that allow for
searches of copyrighted works and for the copyright owners of
works, including through text, sound, and image recognition
tools.
``(2) Notice of claim for infringement.--The term `notice
of the claim for infringement' means, with respect to a claim
for copyright infringement, a written notice that includes at
a minimum the following:
``(A) The name of the owner of the infringed copyright.
``(B) The title of the infringed work, any alternative
titles of the infringed work known to the owner of the
infringed copyright, or if the work has no title, a
description in detail sufficient to identify it.
``(C) An address and telephone number at which the owner of
the infringed copyright may be contacted.
``(D) Information from which a reasonable person could
conclude that the owner of the infringed copyright's claims
of ownership and infringement are valid.
``(3) Owner of the infringed copyright.--The `owner of the
infringed copyright' is the legal owner of the exclusive
right under section 106, or any party with the authority to
grant or license such right, that is applicable to the
infringement.
``(4) Reasonable compensation.--The term `reasonable
compensation' means, with respect to a claim for
infringement, the amount on which a willing buyer and willing
seller in the positions of the infringer and the owner of the
infringed copyright would have agreed with respect to the
infringing use of the work immediately before the
infringement began.
``(b) Conditions for Eligibility.--
``(1) Conditions.--
``(A) In general.--Notwithstanding sections 502 through
505, and subject to subparagraph (B), in a civil action
brought under this title for infringement of copyright in a
work, the remedies for infringement shall be limited in
accordance with subsection (c) if the infringer--
``(i) proves by a preponderance of the evidence that before
the infringement began, the infringer, a person acting on
behalf of the infringer, or any person jointly and severally
liable with the infringer for the infringement--
``(I) performed and documented a qualifying search, in good
faith, for the owner of the infringed copyright; and
``(II) was unable to locate the owner of the infringed
copyright;
``(ii) provided attribution, in a manner that is reasonable
under the circumstances, to the owner of the infringed
copyright, if such owner was known with a reasonable degree
of certainty, based on information obtained in performing the
qualifying search;
``(iii) included with the use of the infringing work a
symbol or other notice of the use of the infringing work, in
a manner prescribed by the Register of Copyrights;
``(iv) asserts in the initial pleading to the civil action
the right to claim such limitations;
``(v) consents to the jurisdiction of United States
district court, or such court holds that the infringer is
within the jurisdiction of the court; and
``(vi) at the time of making the initial discovery
disclosures required under Rule 26 of the Federal Rules of
Civil Procedure, states with particularity the basis for the
right to claim the limitations, including a detailed
description and documentation of the search undertaken in
accordance with paragraph (2)(A).
``(B) Exception.--Subparagraph (A) does not apply if, after
receiving notice of the claim for infringement and having an
opportunity to conduct an expeditious good faith
investigation of the claim, the infringer--
``(i) fails to negotiate reasonable compensation in good
faith with the owner of the infringed copyright; or
``(ii) fails to render payment of reasonable compensation
in a reasonably timely manner.
``(2) Requirements for searches.--
``(A) Requirements for qualifying searches.--
``(i) In general.--For purposes of paragraph (1)(A)(i)(I),
a search is qualifying if the infringer undertakes a diligent
effort to locate the owner of the infringed copyright.
``(ii) Determination of diligent effort.--In determining
whether a search is diligent under this subparagraph, a court
shall consider whether--
``(I) the actions taken in performing that search are
reasonable and appropriate under the facts relevant to that
search, including whether the infringer took actions based on
facts uncovered by the search itself;
``(II) the infringer employed the applicable best practices
maintained by the Register of Copyrights under subparagraph
(B); and
``(III) the infringer performed the search before using the
work and at a time that was reasonably proximate to the
commencement of the infringement.
``(iii) Lack of identifying information.--The fact that a
particular copy or phonorecord lacks identifying information
pertaining to the owner of the infringed copyright is not
sufficient to meet the conditions under paragraph
(1)(A)(i)(I).
``(B) Information to guide searches; best practices.--
``(i) Statements of best practices.--The Register of
Copyrights shall maintain and make available to the public,
including through the Internet, current statements of best
practices for conducting and documenting a search under this
subsection.
``(ii) Consideration of relevant materials and standards.--
In maintaining the statements of best practices required
under clause (i), the Register of Copyrights shall, from time
to time, consider materials and standards that may be
relevant to the requirements for a qualifying search under
subparagraph (A).
``(3) Penalty for failure to comply.--If an infringer fails
to comply with any requirement under this subsection, the
infringer is subject to all the remedies provided in section
502 through 505, subject to section 412.
``(c) Limitations on Remedies.--The limitations on remedies
in a civil action for infringement of a copyright to which
this section applies are the following:
``(1) Monetary relief.--
``(A) General rule.--Subject to subparagraph (B), an award
for monetary relief (including actual damages, statutory
damages, costs, and attorney's fees) may not be made other
than an order requiring the infringer to pay reasonable
compensation to the legal or beneficial owner of the
exclusive right under the infringed copyright for the use of
the infringed work.
``(B) Further limitations.--An order requiring the
infringer to pay reasonable compensation for the use of the
infringed work may not be made under subparagraph (A) if the
infringer is a nonprofit educational institution, museum,
library, or archives, or a public broadcasting entity (as
defined in subsection (f) of section 118) and the infringer
proves by a preponderance of the evidence that--
``(i) the infringement was performed without any purpose of
direct or indirect commercial advantage;
[[Page S3407]]
``(ii) the infringement was primarily educational,
religious, or charitable in nature; and
``(iii) after receiving notice of the claim for
infringement, and after conducting an expeditious good faith
investigation of the claim, the infringer promptly ceased the
infringement.
``(C) Exception to further limitation.--Notwithstanding the
limitation established under subparagraph (B), if the owner
of an infringed copyright proves, and a court finds, that the
infringer has earned proceeds directly attributable to the
use of the infringed work by the infringer, the portion of
such proceeds attributable to such infringement may be
awarded to the owner.
``(2) Injunctive relief.--
``(A) General rule.--Subject to subparagraph (B), the court
may impose injunctive relief to prevent or restrain any
infringement alleged in the civil action.
``(B) Exception.--In a case in which the infringer has
prepared or commenced preparation of a work that recasts,
transforms, adapts, or integrates the infringed work with a
significant amount of the infringer's original expression,
any injunctive relief ordered by the court--
``(i) may not restrain the infringer's continued
preparation or use of that new work;
``(ii) shall require that the infringer pay reasonable
compensation to the legal or beneficial owner of the
exclusive right under the infringed copyright for the use of
the infringed work; and
``(iii) shall require that the infringer provide
attribution, in a manner that is reasonable under the
circumstances, to the owner of the infringed copyright, if
requested by such owner.
``(C) Limitations.--The limitations on injunctive relief
under subparagraphs (A) and (B) shall not be available to an
infringer if the infringer asserts in the civil action that
neither the infringer or any representative of the infringer
acting in an official capacity is subject to suit in the
courts of the United States for an award of damages to the
legal or beneficial owner of the exclusive right under the
infringed copyright under section 106, unless the court finds
that the infringer--
``(i) has complied with the requirements of subsection (b);
and
``(ii) has made an enforceable promise to pay reasonable
compensation to the legal or beneficial owner of the
exclusive right under the infringed copyright.
``(D) Rule of construction.--Nothing in subparagraph (C)
shall be construed to authorize or require, and no action
taken under such subparagraph shall be deemed to constitute,
either an award of damages by the court against the infringer
or an authorization to sue a State.
``(E) Rights and privileges not waived.--No action taken by
an infringer under subparagraph (C) shall be deemed to waive
any right or privilege that, as a matter of law, protects the
infringer from being subject to suit in the courts of the
United States for an award of damages to the legal or
beneficial owner of the exclusive right under the infringed
copyright under section 106.
``(d) Preservation of Other Rights, Limitations, and
Defenses.--This section does not affect any right,
limitation, or defense to copyright infringement, including
fair use, under this title. If another provision of this
title provides for a statutory license that would permit the
infringement contemplated by the infringer if the owner of
the infringed copyright cannot be located, that provision
applies instead of this section.
``(e) Copyright for Derivative Works and Compilations.--
Notwithstanding section 103(a), an infringer who qualifies
for the limitation on remedies afforded by this section with
respect to the use of a copyrighted work shall not be denied
copyright protection in a compilation or derivative work on
the basis that such compilation or derivative work employs
preexisting material that has been used unlawfully under this
section.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 5 of title 17, United States Code, is
amended by adding at the end the following:
``514. Limitation on remedies in cases involving orphan works.''.
SEC. 3. DATABASE OF PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.
(a) Establishment of Database.--
(1) In general.--The Register of Copyrights shall undertake
a certification process for the establishment of an
electronic database that facilitates the search for
pictorial, graphic, and sculptural works that are subject to
copyright protection under title 17, United States Code.
(2) Process and standards for certification.--The process
and standards for certification of the electronic database
required under paragraph (1) shall be established by the
Register of Copyrights, except that certification may not be
granted if the electronic database does not contain--
(A) the name of all authors of the work, if known, and
contact information for any author if the information is
readily available;
(B) the name of the copyright owner if different from the
author, and contact information of the copyright owner;
(C) the title of the copyrighted work, if such work has a
title;
(D) with respect to a copyrighted work that includes a
visual image, a visual image of the work, or, if such a
visual image is not available, a description sufficient to
identify the work;
(E) one or more mechanisms that allow for the search and
identification of a work by both text and image; and
(F) security measures that reasonably protect against
unauthorized access to, or copying of, the information and
content of the electronic database.
(b) Public Availability.--The Register of Copyrights--
(1) shall make available to the public through the Internet
a list of all electronic databases that are certified in
accordance with this section; and
(2) may include any database so certified in a statement of
best practices established under section 514(b)(5)(B) of
title 17, United States Code.
SEC. 4. EFFECTIVE DATE.
(a) In General.--With respect to works other than
pictorial, graphic, and sculptural works, the amendments made
by section 2 shall apply to infringements that commence on or
after January 1, 2009.
(b) Pictorial, Graphic, and Sculptural Works.--With respect
to pictorial, graphic, and sculptural works, the amendments
made by section 2 shall--
(1) take effect on the earlier of--
(A) the date on which the Copyright Office certifies under
section 3 at least 2 separate and independent searchable,
comprehensive, electronic databases, that allow for searches
of copyrighted works that are pictorial, graphic, and
sculptural works, and are available to the public through the
Internet; or
(B) January 1, 2011; and
(2) apply to infringing uses that commence on or after that
effective date.
(c) Publication in Federal Register.--The Register of
Copyrights shall publish the effective date described in
subsection (b)(1) in the Federal Register, together with a
notice that the amendments made by section 2 take effect on
that date with respect to pictorial, graphic, and sculptural
works.
(d) Definition.--In this section, the term ``pictorial,
graphic, and sculptural works'' has the meaning given that
term in section 101 of title 17, United States Code.
SEC. 5. REPORT TO CONGRESS.
Not later than December 12, 2014, the Register of
Copyrights shall report to the Committee on the Judiciary of
the Senate and the Committee on the Judiciary of the House of
Representatives on the implementation and effects of the
amendments made by section 2, including any recommendations
for legislative changes that the Register considers
appropriate.
SEC. 6. STUDY ON REMEDIES FOR SMALL COPYRIGHT CLAIMS.
(a) In General.--The Register of Copyrights shall conduct a
study with respect to remedies for copyright infringement
claims by an individual copyright owner or a related group of
copyright owners seeking small amounts of monetary relief,
including consideration of alternative means of resolving
disputes currently heard in the United States district
courts. The study shall cover the infringement claims to
which section 514 of title 17, United States Code, apply, and
other infringement claims under such title 17.
(b) Procedures.--The Register of Copyrights shall publish
notice of the study required under subsection (a), providing
a period during which interested persons may submit comments
on the study, and an opportunity for interested persons to
participate in public roundtables on the study. The Register
shall hold any such public roundtables at such times as the
Register considers appropriate.
(c) Report to Congress.--Not later than 2 years after the
date of the enactment of this Act, the Register of Copyrights
shall prepare and submit to the Committee on the Judiciary of
the Senate and the Committee on the Judiciary of the House of
Representatives a report on the study conducted under this
section, including such administrative, regulatory, or
legislative recommendations that the Register considers
appropriate.
SEC. 7. STUDY ON COPYRIGHT DEPOSITS.
(a) In General.--The Comptroller General of the United
States shall conduct a study examining the function of the
deposit requirement in the copyright registration system
under section 408 of title 17, United States Code,
including--
(1) the historical purpose of the deposit requirement;
(2) the degree to which deposits are made available to the
public currently;
(3) the feasibility of making deposits, particularly visual
arts deposits, electronically searchable by the public for
the purpose of locating copyright owners; and
(4) the impact any change in the deposit requirement would
have on the collection of the Library of Congress.
(b) Report.--Not later than 2 years after the date of the
enactment of this Act, the Comptroller General shall submit
to the Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of the
Senate a report on the study conducted under this section,
including such administrative, regulatory, or legislative
recommendations that the Comptroller General considers
appropriate.
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By Mr. STEVENS (for himself, Mr. Inouye, Mr. Smith, Mr. Dorgan,
Mr. Thune, Mr. Pryor, and Ms. Snowe):
S. 2919. A bill to promote the accurate transmission of network
traffic identification information; to the Committee on Commerce,
Science, and Transportation.
[[Page S3408]]
Mr. STEVENS. Mr. President, to help end the growing problem of
phantom traffic, today I introduce the ``Signaling Modernization Act of
2008.'' Senators Inouye, Smith, Dorgan, Thune, Pryor, and Snowe
cosponsored this bill. Phantom traffic is a phone call sent over the
telephone network without the identifying information carriers use to
bill each other.
When I call home to Alaska, that call is transmitted over several
different carriers. Phone companies charge each other for the use of
their networks. The funds generated by these charges are particularly
important to carriers in Alaska and throughout rural America. Phantom
traffic prevents carriers from collecting the funds they are owed,
impacting universal service and raising rates for rural customers.
It's time Congress pulled back the mask on phantom traffic to
discover who or what is behind this problem that has plagued carriers
for several years. The Federal Communications Commission is actively
analyzing the issue, but it is time we find a solution.
Yesterday the Commerce Committee heard from a member of the National
Telecommunications Cooperative Association from rural Missouri. He told
us that 11 percent of their traffic did not have sufficient information
for billing, causing them to lose about $37 per line per year. This
loss of revenue makes it more difficult for rural carriers to deploy
broadband.
Our bill will require all calls from voice communications service
providers to contain enough information to allow carriers to bill each
other, including voice over internet protocol providers offering 2-way
service and providers transiting the traffic between originating and
terminating providers. Our bill also directs the FCC to establish rules
implementing this requirement within 12 months of enactment, and gives
it the authority to adopt enforcement provisions. Phantom traffic
steals from rural carriers and customers. I hope Congress and the FCC
will look at this issue closely and put an end to phantom traffic.
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