[Congressional Record Volume 154, Number 120 (Tuesday, July 22, 2008)]
[House]
[Pages H6740-H6741]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            VESSEL HULL DESIGN PROTECTION AMENDMENTS OF 2008

  Mr. SCOTT of Virginia. Mr. Speaker, I move to suspend the rules and 
pass the bill (H.R. 6531) to amend chapter 13 of title 17, United 
States Code (relating to the vessel hull design protection), to clarify 
the definitions of a hull and a deck.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 6531

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. VESSEL HULL DESIGN PROTECTION.

       (a) Short Title.--This Act may be cited as the ``Vessel 
     Hull Design Protection Amendments of 2008''.
       (b) Designs Protected.--Section 1301(a) of title 17, United 
     States Code, is amended by striking paragraph (2) and 
     inserting the following:
       ``(2) Vessel features.--The design of a vessel hull, deck, 
     or combination of a hull and deck, including a plug or mold, 
     is subject to protection under this chapter, notwithstanding 
     section 1302(4).''.
       (c) Exceptions.--Section 1301(a) of title 17, United States 
     Code, is amended by adding at the end the following:
       ``(3) Exceptions.--Department of Defense rights in a 
     registered design under this chapter, including the right to 
     build to such registered design, shall be determined solely 
     by operation of section 2320 of title 10 or by the instrument 
     under which the design was developed for the United States 
     Government.''.
       (d) Definitions.--Section 1301(b) of title 17, United 
     States Code, is amended--
       (1) in paragraph (2), by striking ``vessel hull, including 
     a plug or mold,'' and inserting ``vessel hull or deck, 
     including a plug or mold,'';
       (2) by striking paragraph (4) and inserting the following:
       ``(4) A `hull' is the exterior frame or body of a vessel, 
     exclusive of the deck, superstructure, masts, sails, yards, 
     rigging, hardware, fixtures, and other attachments.''; and
       (3) by adding at the end the following:
       ``(7) A `deck' is the horizontal surface of a vessel that 
     covers the hull, including exterior cabin and cockpit 
     surfaces, and exclusive of masts, sails, yards, rigging, 
     hardware, fixtures, and other attachments.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Virginia (Mr. Scott) and the gentleman from North Carolina (Mr. Coble) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Virginia.


                             General Leave

  Mr. SCOTT of Virginia. Mr. Speaker, I ask unanimous consent that all 
Members have 5 legislative days to revise and extend their remarks and 
include extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Virginia?
  There was no objection.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, H.R. 6531, the Vessel Hull Design Protection Amendments 
of 2008, makes technical corrections to the 1998 Vessel Hull Design 
Protection Act for the purpose of clarifying Congress' intent that the 
design of an original vessel hull, separate from a vessel deck, may be 
protected.
  In 1998, the Vessel Hull Design Protection Act established sui 
generis intellectual property protection for original vessel hull 
designs. That Act sought to address the problems of copycats who make 
molds of popular boat designs in order to produce knock-off versions. 
These knock-offs obviously cut into the market of the original 
manufacturers who had invested substantial time and resources in 
designing and testing their boats. Nevertheless, some copycats--mostly 
operating overseas--have exploited a flaw in the language of the 1998 
Act.
  As defined in the Act, a protected ``hull'' consists of both the hull 
and deck of a vessel. In determining infringement, the courts have 
interpreted this to mean that an allegedly infringing design must be 
substantially similar to both the hull and the deck of the protected 
design taken together. This means that a vessel with a hull identical 
to a protected design but with a different deck is not considered an 
infringement. This loophole has allowed copycats to continue to take 
and use popular hull designs of others with impunity.
  To correct the problem, H.R. 6531 explicitly extends protection to a 
hull, a deck, or both, as the original manufacturer chooses. If a 
manufacturer elects to protect just the hull, infringement will be 
judged based on whether the hull of the alleged infringer is 
substantially similar. The same applies also if only the deck is 
protected.
  If a manufacturer elects to protect both the hull and the deck, 
infringement will continue to be judged on whether the combined hull 
and deck design is substantially similar.

                              {time}  1415

  It is anticipated that the Copyright Office will promulgate 
regulations and a registration form that will clearly indicate that a 
deck, a hull, or hull-and-deck combination can be protected in one 
application.
  H.R. 6531 also amends the 1998 Act to ensure that any vessel 
manufactured by or on behalf of the Department of Defense is governed 
by that agency's general procurement law, notwithstanding vessel hull 
design protection.
  Passage of H.R. 6531 will finally provide boat manufacturers with the 
protection that Congress intended to give them a decade ago.
  And one point, Mr. Speaker, the bill does not address the problem of 
fashion design policy that is hurting U.S. designers. But given the 
complexity of developing the appropriate protection scheme for fashion 
designs, it would be better addressed in a more thorough manner the 
next Congress.
  So I urge my colleagues to support this important measure this time.
  I reserve the balance of my time.
  Mr. COBLE. Mr. Speaker, I, too, rise in support of H.R. 6531, the 
Vessel Hull Design Protection Amendments Act of 2008, and urge its 
passage by the House. I'll try not be too detailed, Mr. Speaker, but 
the subject matter invites some detail.
  I understand this bill is better informed through a review of the 
underlying statute, the Vessel Hull Design Protection Act, which 
Congress passed as part of the Digital Millennium Copyright Act in 
1998. Chairman Howard Berman, the distinguished gentleman from 
California, and I were the primary sponsors of the Digital Millennium 
Copyright Act of that year.
  Boat manufacturers invest significant resources in the design and 
development of safe, structurally sound, and often high-performance 
boat hull designs. Including research and development costs, a boat 
manufacturer may invest as much as $50,000 to produce a design from 
which one line of vessels can be manufactured.
  When a boat hull is designed and the design engineering and tooling 
process is complete, the engineers then develop a boat plug from which 
they construct a boat mold. The manufacturer constructs a particular 
line of boats from this mold.
  Unfortunately, those individuals intent on stealing an original boat 
design can simply use a finished boat hull in place of the 
manufacturer's plug to develop a mold. This practice is referred to in 
the trade as splashing a mold. The copied mold can then be used to 
create a line of vessels with a hull seemingly identical to that 
appropriated from the design manufacturer.
  Hull splashing is a problem for consumers as well as manufacturers in 
boat design firms. Consumers who purchase these knock-off boats are 
defrauded in the sense that they are not

[[Page H6741]]

benefiting from the many attributes of hull design, other than shape, 
that are structurally relevant, including those related to quality and 
safety.
  It is also highly unlikely that a consumer will know if a boat had 
been copied from an existing design. More importantly for the purposes 
of promoting intellectual property rights, if manufacturers are not 
permitted to recoup at least some of their research and development 
costs, they may no longer invest in new, innovative boat designs that 
boaters eagerly await.
  In response to this problem and a Supreme Court case called Bonito 
Boats that prohibits State action on the matter, we wrote the Vessel 
Hull Design Protection Act a decade ago. The statute has functioned 
well during this time, but its continued viability is complicated by an 
eleventh circuit opinion, Maverick Boat Company v. American Marine 
Holding.
  Maverick involves a dispute under the vessel hull statute between two 
marine manufacturers. Unfortunately, the holding of the case has 
created a loophole that knock-off manufacturers may well exploit. 
Because the statute protects the design of a vessel hull, and a hull is 
defined as the frame or body of a vessel, including the deck, exclusive 
of masts, sails, yards, and rigging, the court presumably reasoned that 
a hull must be examined in its totality. In other words, when assessing 
the design attributes of a hull under the statute, one may not examine 
its components, meaning the frame or body and the deck, separately.
  This reasoning subverts Congress' intent when we passed the Vessel 
Hull Design Protection Act. At the time, proponents of reform were 
responding to the Supreme Court's ruling in Bonito Boats, which struck 
down State plug-mold statutes that effectively banned hull splashing as 
a method for copying hull designs. That is, the very practice, that is, 
hull splashing, that Congress sought to prescribe in 1998 would, in 
part, be legitimized by the eleventh circuit's decision in the Maverick 
case.
  In brief, H.R. 6531 cures this problem by amending the definition of 
vessel hulls. The new definition will prevent knock-off manufacturers 
from indulging in hull splashing or misappropriation of either an 
original design of a hull or a deck. The bill specifies that only the 
hull's exterior frame or body is protected and clarifies other terms 
under the statute.
  Importantly, H.R. 6531 contains a provision that was omitted from an 
earlier draft, S. 1640, that the other body passed last October. The 
new provision creates an exception to the vessel hull statute for the 
Armed Forces. This is necessary because the United States Navy, the 
United States Coast Guard, and perhaps the United States Marines, often 
have vessels built to specifications. It is not unthinkable that a 
vessel constructed for use by the Armed Forces might infringe a 
registered design.
  Nothing in the legislative history of the statute suggests that 
Congress intended to complicate national security in any way. This is 
especially true since a separate provision of the U.S. Code, section 
2320 of title X, addresses the rights of the Armed Forces and private 
parties to use patented inventions, copyrighted works, and technical 
data related to defense projects.
  H.R. 6531, therefore, ensures this provision or a contract between 
the government and relevant third parties will determine the rights of 
the Armed Forces in a registered hull design.
  Mr. Speaker, this is a noncontroversial bill that has received 
process in the form of hearings in this Congress, as well as the 109th 
Congress. It is a technical fix that allows the Vessel Hull Design 
Protection Act to operate as Congress intended.
  I urge my colleagues to support H.R. 6531.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise today in support of 
H.R. 6531, the Vessel Hull Design Protection Amendments of 2008. This 
bill amends the United States Code, in the section relating to the 
vessel hull design protection, to clarify the definitions of a hull and 
a deck.
  Industrial designs, like other forms of intellectual property, 
originated in Europe and have a long history. The objective of 
industrial design protection is similar to other intellectual property 
protections: promoting the creation of new, unique, and appealing 
designs for products by granting exclusive economic rights for a 
limited time. Many countries have established industrial design laws 
that are separate and distinct from other forms of intellectual 
property rights. The United States provides protection for industrial 
designs through design patents, trade redress, copyright and vessel 
hull design protection.
  There have been several efforts to provide a sui generis form of 
protection for industrial designs at least since the 1976 Copyright 
Act. However, it was not until 1998 that some limited success in these 
efforts took the form of the Vessel Hull Design Protection Act. This 
Act was passed as part of the Digital Millennium Copyright Act. While 
the scope of protection in the Act was limited to vessel hulls, the act 
took much of its language and structure from previous legislative 
proposals establishing a general design right.
  The Vessel Hull Design Protection Act grants exclusive rights to the 
design of an original vessel hull. To be original, a vessel hull design 
must be a non-trivial variation over prior vessel hulls, which is the 
result of the designer's creative endeavor and is not copied from 
another source. The Vessel Hull Design Protection Act does not provide 
any protection to non-original designs, staple or commonplace designs, 
and designs dictated solely by utilitarian function. The Vessel Hull 
Design Protection Act defines a ``hull'' as the frame or body of a 
vessel, including a deck.
  Significantly, H.R. 6531, makes changes to this Act and excludes 
``deck'' from the definition of a ``hull''. By H.R. 6531, ``hull'' is 
simply defined as the exterior frame or body of a vessel, exclusive of 
the deck, superstructure, masts, sails, yards, rigging, hardware, 
fixtures, and other attachments. The ``deck'' is defined as the 
horizontal surface of the vessel that covers the hull.
  This refined definition should add more clarity to vessel hull 
protection. To secure vessel hull design protection, an application for 
the design must be submitted to the Copyright Office that sets forth 
the salient features of the design. According to the Copyright Office, 
applicants generally provided only a minimal description and rely 
heavily upon references to photographs they provide in their 
applications to define the designs they want protected. The Copyright 
Office must then decide whether the application, on its face, appears 
to be subject to protection. The definitional change provided by H.R. 
6531 should simplify this process.
  The Copyright Office's review focuses upon on making sure formal 
requirements are met, such as ensuring that the subject is a vessel and 
not a car, for instance. The review does not, however, look at the 
compliance with substantive requirements such as determining whether 
the design is original.
  A registered vessel hull design gives the designer exclusive rights 
to make, sell, import, or use in trade, vessel hulls embodying the 
design. Certainly, the definitional change will make it easier to 
determine the design of the vessel and to ascertain whether any 
infringement has occurred. An infringing hull design is one that has 
been copied without the consent of the designer. A vessel hull design 
will not be considered copied if it is original and not substantially 
similar in appearance to a protected vessel hull design. When 
infringement is proven, a vessel hull designer may seek injunctive 
relief and either damages adequate to compensate for the infringement 
or the infringer's profits.
  Mr. Speaker, I urge my colleagues to support H.R. 6531 because it 
simplifies the definition of a hull and makes it easier to determine 
whether there has been infringement.
  Mr. COBLE. I have no further requests for time, Mr. Speaker, so I 
yield back my time.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield back the balance of my 
time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Virginia (Mr. Scott) that the House suspend the rules 
and pass the bill, H.R. 6531.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

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