[Congressional Record (Bound Edition), Volume 145 (1999), Part 1]
[Senate]
[Pages 643-653]
[From the U.S. Government Publishing Office, www.gpo.gov]



                    DATABASE ANTIPIRACY LEGISLATION

  Mr. HATCH. Mr. President, I rise today to speak on an issue of great 
and escalating importance: database piracy. While perhaps not an issue 
on the tips of most Americans' tongues, it is nevertheless an issue 
that has garnered considerable attention in recent years both in the 
United States and in international forums. The 106th Congress is now 
the third consecutive Congress in which database legislation will be 
considered. This is an appropriate reflection of the fact that while 
intellectual property has become the heart of our Nation's economy, 
information is its lifeblood.
  Utahns are interested in an appropriate balance of interest here. 
Utah is a leader in the hi-tech and information industries, and is home 
to both producers and users of information and database collections. 
Utah is blessed with world class scientists and scholars, genealogists, 
and computer and hi-tech companies that create new information, 
organize information, and use information--often using information 
created by others in innovative ways to create new information or to 
make it more easily or inexpensively accessible. I would guess that 
most of my colleagues would find that similarly in their own home 
states that many of their constituents are interested in this issue at 
some level because so many are producers or users of information, and 
often both.
  American database providers render an invaluable service by 
collecting, organizing, and disseminating billions of bits of 
information from myriad sources of every possible sector of our 
economy. They give us such widely-used tools as phone books, 
directories, catalogs, almanacs, encyclopedias, and other reference 
guides. They provide specialized products like statistical abstracts, 
medical and pharmaceutical reference tools, stock quotes, pricing 
guides, genealogical data and countless other sources of information 
for businesses, researchers, scientists, educators, and consumers. 
Indeed, it is the information they collect that allows us to predict 
the weather, to treat disease, to preserve our national security,

[[Page 644]]

to use computers to communicate over global networks, like the 
Internet, to travel, to buy a home, and even to watch the evening news.
  It is not surprising that the cost of creating and maintaining 
accurate, reliable, and user-friendly databases is significant. Yet, 
the commercial viability of these products has, for many years, served 
as an incentive to investment and spawned a thriving information 
industry in the United States. Nevertheless, events in the past several 
years have caused some to question the continued viability of these 
products, raising the question of whether current law is sufficient to 
maintain the same sort of incentives that have served to keep the 
United States on the cutting edge of the information age.
  The most debated among these is perhaps the 1991 decision in Feist 
Publications v. Rural Telephone Service Co.,  499 U.S. 340, in which 
the Supreme Court rejected the so-called ``sweat of the brow'' theory 
as a basis for copyright protection for databases. Under Feist, the 
degree of labor and investment associated with producing a database is 
irrelevant to the question of copyrightability. Rather, a database may 
be protected by copyright only where it exhibits a minimum level of 
originality in the selection and arrangement of its contents. And, even 
then, the copyright in the database is said to be ``thin'' in that it 
extends only to the original selection and arrangement of the material 
but does not protect against the wholesale appropriation of the facts 
themselves. Thus, Feist made clear that a database owner who spends 
several years and a substantial amount of money to respond to an unmet 
market for data cannot look to copyright law for protection against a 
competitor who seeks ``to reap where he has not sown'' by reproducing 
and commercializing the same information in a different format, so long 
as the competing product does not copy the original selection or 
arrangement of the underlying information, if any. For example, in 
Martindale-Hubbell, Inc. v. Dunhill Int'l List Co., No. 88-6767-CIV-
ROETTGER (S.D. Fla. Dec. 30, 1994), the court held that wholesale 
copying of attorney's names, addresses, and other information from the 
Martindale-Hubbell directory for inclusion in a competing directly was 
not infringing.
  Having no recourse to copyright law, such database producers must 
rely on State law regimes of contract and unfair competition to protect 
their investment. While there has been an ongoing and healthy debate as 
to whether such protections are sufficient, it is clear that the 
varying nature of the patchwork of state laws has led, at the very 
least, to some uncertainty among database producers regarding the 
degree of protection they may expect.
  Also of growing importance is the effect of technology on the 
database industry as a whole. To a large extent, technology has been 
the fire that has fueled the growth of the database industry. Many also 
look to emerging technology as the solution to many of the problems 
sought to be addressed in the current debate. But while technological 
measures for protecting databases are still emerging, current 
technology has greatly contributed to the uncertainty that surrounds 
existing database protections. As databases move from hard-bound 
printed text versions to fully searchable electronic information-bases, 
selection and arrangement of the material becomes less important, and 
copyright protection is further removed. Thus, a database that in print 
form might be protected by copyright based on its arrangement of facts 
would likely no be protected by copyright when the same information is 
placed in a searchable electronic database where the arrangement of the 
facts is unimportant. And the digital networked environment has made 
piracy of databases much easier, both in terms of the facility of 
reproduction and in terms of the ease of unauthorized access to the 
contents of the database itself.
  Finally, recent international proposals for database legislation and 
have heightened awareness of database piracy and prompted a greater 
sense of urgency among some to elevate the level of protection for 
databases in the United States. Most significant among these is the 
1996 directive of the European Union requiring its member states to 
adopt certain protections for both copyrightable and noncopyrightable 
databases by January 1, 1998. Of particular relevance is a provision 
withholding protection for those databases produced in countries that 
do not afford a similar level of protection for European databases. 
Thus, failure by the United States to exact legislation extending 
federal protection to noncopyrightable databases will likely result in 
the withholding of protection for American databases in Europe--a 
significant market for U.S. database providers.
  Mr. President, I have long been on record as supporting some form of 
federal protection to fill the gap of protection created by Feist for 
those databases that are the result of significant effort and 
investment. Nearly 2 years ago I initiated a process that I hoped would 
enable Congress to balance the varied interests at stake in order to 
preserve appropriate incentives for investment in information while 
promoting the widest possible dissemination of information, as well as 
the greatest innovation in making information inexpensive and easy to 
use. I began this process by asking the Copyright Office to conduct a 
comprehensive study of the issues involved and to make recommendations 
to the Judiciary Committee. The Register of Copyrights and her staff 
did an outstanding job in responding to my request, and the Copyright 
Office issued a formal report in August 1997, shortly before the 104th 
Congress adjourned.
  Congressman Coble, chairman of the Subcommittee on Courts and 
Intellectual Property in the House of Representatives, spearheaded the 
effort to report database legislation in the 105th Congress. His 
subcommittee reported legislation, which was ultimately passed twice by 
the House of Representatives in the 105th Congress--once under 
suspension of the rules an then again as title V of the H.R. 2281, the 
Digital Millenium Copyright Act. I commend him for the hard work that 
he has done and for his work in bringing the various parties together 
on this particular issue.
  As my Senate colleagues will recall, while the Coble bill encountered 
very limited opposition on the House floor, it proved to be more 
controversial in the Senate. In order to address the outstanding 
concerns of various information users, I requested that the parties sit 
down under the auspices of the Judiciary Committee to discuss their 
differences and seek a resolution that was favorable to all. These 
discussions went on almost daily for approximately three weeks, and 
considerable progress was made. Based on these meetings, I put forward 
a series of discussion drafts that sought to narrow the gaps and arrive 
at an acceptable solution. While ultimately a solution could not be 
reached before the Congress adjourned, we did make considerable 
progress. Each of these discussion drafts represented an additional 
step toward a resolution, and I believe that in the end we were close 
to a workable compromise.
  As we begin the 106th Congress, I want to stand before my colleagues 
to reiterate my commitment to the timely enactment of database 
legislation. There are many people that stand to be affected by such 
legislation, and many points of view about what the proper approach 
should be. While I am not wedded to a specific proposal or a particular 
approach, I do believe that any bill should keep in mind the dual 
priorities of providing the protections necessary to ensure the 
continued proliferation of databases in the United States and of 
protecting widespread access to and dissemination of information. In an 
effort to build upon the progress we made in the Senate last year, I am 
sharing with my colleagues a discussion draft that is identical to the 
last of the discussion drafts I offered last year. I ask unanimous 
consent that the text of this draft be included in the Record 
immediately after my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)

[[Page 645]]


  Mr. HATCH. By putting forward this particular draft I do not mean to 
suggest that this is necessarily the appropriate starting point for 
debate in the 106th Congress. Provisions of this draft must be read in 
light of the circumstances in which they were written, mainly the 
consideration of the conference report on the Digital Millennium 
Copyright Act. It does, however, represent a number of significant 
advances toward consensus as well as ideas and principles that I expect 
will prove useful in crafting a database bill that meets the above-
stated objectives. For these reasons I commend it to my colleagues for 
their consideration. But there are other approaches we should be 
cognizant of as we work toward the best possible solution.
  First, there is a broad unfair competition model that approaches in 
some ways a property rights model. The foremost example of this 
approach has been the House's bills over the past few years. I 
understand that Chairman Coble has introduced a bill in the House that 
largely reflects the bill that passed by the House last year and that 
he will be seeking to forge a consensus in the House based on that 
proposal. I am pleased that he has made this a priority again this 
year, and I look forward to working with him as I have been privileged 
to do on so many prior occasions. For the reference of my colleagues, I 
ask unanimous consent that Mr. Coble's bill be printed in the Record as 
an exemple of the broad model of database protection.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 H. --

       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 ``Collections of Information 
     Antipiracy Act''.

     SEC. 2. MISAPPROPRIATION OF COLLECTIONS OF INFORMATION.

       Title 17, United States Code, is amended by adding at the 
     end the following new chapter:

      ``CHAPTER 14--MISAPPROPRIATION OF COLLECTIONS OF INFORMATION

``Sec.
``1401. Definitions.
``1402. Prohibition against misappropriation.
``1403. Permitted acts.
``1404. Exclusions.
``1405. Relationship to other laws.
``1406. Civil remedies.
``1407. Criminal offenses and penalties.
``1408. Limitations on actions.

     ``Sec. 1401. Definitions

       ``As used in this chapter:
       ``(1) Collection of information.--The term `collection of 
     information' means information that has been collected and 
     has been organized for the purpose of bringing discrete items 
     of information together in one place or through one source so 
     that users may access them.
       ``(2) Information.--The term `information' means facts, 
     data, works of authorship, or any other intangible material 
     capable of being collected and organized in a systematic way.
       ``(3) Potential market.--The term `potential market' means 
     any market that a person claiming protection under section 
     1402 has current and demonstrable plans to exploit or that is 
     commonly exploited by persons offering similar products or 
     services incorporating collections of information.
       ``(4) Commerce.--The term `commerce' means all commerce 
     which may be lawfully regulated by the Congress.

     ``Sec. 1402. Prohibition against misappropriation

       ``Any person who extracts, or uses in commerce, all or a 
     substantial part, measured either quantitatively or 
     qualitatively, of a collection of information gathered, 
     organized, or maintained by another person through the 
     investment of substantial monetary or other resources, so as 
     to cause harm to the actual or potential market of that other 
     person, or a successor in interest of that other person, for 
     a product or service that incorporates that collection of 
     information and is offered or intended to be offered for sale 
     or otherwise in commerce by that other person, or a successor 
     in interest of that person, shall be liable to that person or 
     successor in interest for the remedies set forth in section 
     1406.

     ``Sec. 1403. Permitted acts

       ``(a) Educational, Scientific, Research, and Additional 
     Reasonable Uses.--
       ``(1) Certain nonprofit educational, scientific, or 
     research uses.--Notwithstanding section 1402, no person shall 
     be restricted from extracting or using information for 
     nonprofit educational, scientific, or research purposes in a 
     manner that does not harm directly the actual market for the 
     product or service referred to in section 1402.
       ``(2) Additional reasonable uses.--
       ``(A) In general.--Notwithstanding section 1402, an 
     individual act of use or extraction of information done for 
     the purpose of illustration, explanation, example, comment, 
     criticism, teaching, research, or analysis, in an amount 
     appropriate and customary for that purpose, is not a 
     violation of this chapter, if it is reasonable under the 
     circumstances. In determining whether such an act is 
     reasonable under the circumstances, the following factors 
     shall be considered:
       ``(i) The extent to which the use or extraction is 
     commercial or nonprofit.
       ``(ii) The good faith of the person making the use or 
     extraction.
       ``(iii) The extent to which and the manner in which the 
     portion used or extracted is incorporated into an independent 
     work or collection, and the degree of difference between the 
     collection from which the use or extraction is made and the 
     independent work or collection.
       ``(iv) Whether the collection from which the use or 
     extraction is made is primarily developed for or marketed to 
     persons engaged in the same field or business as the person 
     making the use or extraction.

     In no case shall a use or extraction be permitted under this 
     paragraph if the used or extracted portion is offered or 
     intended to be offered for sale or otherwise in commerce and 
     is likely to serve as a market substitute for all or part of 
     the collection from which the use or extraction is made.
       ``(B) Definition.--For purposes of this paragraph, the term 
     `individual act' means an act that is not part of a pattern, 
     system, or repeated practice by the same party, related 
     parties, or parties acting in concert with respect to the 
     same collection of information or a series of related 
     collections of information.
       ``(b) Individual Items of Information and Other 
     Insubstantial Parts.--Nothing in this chapter shall prevent 
     the extraction or use of an individual item of information, 
     or other insubstantial part of a collection of information, 
     in itself. An individual item of information, including a 
     work of authorship, shall not itself be considered a 
     substantial part of a collection of information under section 
     1402. Nothing in this subsection shall permit the repeated or 
     systematic extraction or use of individual items or 
     insubstantial parts of a collection of information so as to 
     circumvent the prohibition contained in section 1402.
       ``(c) Gathering or Use of Information Obtained Through 
     Other Means.--Nothing in this chapter shall restrict any 
     person from independently gathering information or using 
     information obtained by means other than extracting it from a 
     collection of information gathered, organized, or maintained 
     by another person through the investment of substantial 
     monetary or other resources.
       ``(d) Use of Information for Verification.--Nothing in this 
     chapter shall restrict any person from extracting or using a 
     collection of information within any entity or organization, 
     for the sole purpose of verifying the accuracy of information 
     independently gathered, organized, or maintained by that 
     person. Under no circumstances shall the information so used 
     be extracted from the original collection and made available 
     to others in a manner that harms the actual or potential 
     market for the collection of information from which it is 
     extracted or used.
       ``(e) News Reporting.--Nothing in this chapter shall 
     restrict any person from extracting or using information for 
     the sole purpose of news reporting, including news gathering, 
     dissemination, and comment, unless the information so 
     extracted or used is time sensitive and has been gathered by 
     a news reporting entity, and the extraction or use is part of 
     a consistent pattern engaged in for the purpose of direct 
     competition.
       ``(f) Transfer of Copy.--Nothing in this chapter shall 
     restrict the owner of a particular lawfully made copy of all 
     or part of a collection of information from selling or 
     otherwise disposing of the possession of that copy.

     ``Sec. 1404. Exclusions

       ``(a) Government Collections of Information.--
       ``(1) Exclusion.--Protection under this chapter shall not 
     extend to collections of information gathered, organized, or 
     maintained by or for a government entity, whether Federal, 
     State, or local, including any employee or agent of such 
     entity, or any person exclusively licensed by such entity, 
     within the scope of the employment, agency, or license. 
     Nothing in this subsection shall preclude protection under 
     this chapter for information gathered, organized, or 
     maintained by such an agent or licensee that is not within 
     the scope of such agency or license, or by a Federal or State 
     educational institution in the course of engaging in 
     education or scholarship.
       ``(2) Exception.--The exclusion under paragraph (1) does 
     not apply to any information required to be collected and 
     disseminated--
       ``(A) under the Securities Exchange Act of 1934 by a 
     national securities exchange, a registered securities 
     association, or a registered securities information 
     processor, subject to section 1405(g) of this title; or
       ``(B) under the Commodity Exchange Act by a contract 
     market, subject to section 1405(g) of this title.

[[Page 646]]

       ``(b) Computer Programs.--
       ``(1) Protection not extended.--Subject to paragraph (2), 
     protection under this chapter shall not extend to computer 
     programs, including, but not limited to, any computer program 
     used in the manufacture, production, operation, or 
     maintenance of a collection of information, or any element of 
     a computer program necessary to its operation.
       ``(2) Incorporated collections of information.--A 
     collection of information that is otherwise subject to 
     protection under this chapter is not disqualified from such 
     protection solely because it is incorporated into a computer 
     program.
       ``(c) Digital Online Communications.--Protection under this 
     chapter shall not extend to a product or service 
     incorporating a collection of information gathered, 
     organized, or maintained to address, route, forward, 
     transmit, or store digital online communications or provide 
     or receive access to connections for digital online 
     communications.

     ``Sec. 1405. Relationship to other laws

       ``(a) Other Rights Not Affected.--Subject to subsection 
     (b), nothing in this chapter shall affect rights, 
     limitations, or remedies concerning copyright, or any other 
     rights or obligations relating to information, including laws 
     with respect to patent, trademark, design rights, antitrust, 
     trade secrets, privacy, access to public documents, and the 
     law of contract.
       ``(b) Preemption of State Law.--On or after the effective 
     date of this chapter, all rights that are equivalent to the 
     rights specified in section 1402 with respect to the subject 
     matter of this chapter shall be governed exclusively by 
     Federal law, and no person is entitled to any equivalent 
     right in such subject matter under the common law or statutes 
     of any State. State laws with respect to trademark, design 
     rights, antitrust, trade secrets, privacy, access to public 
     documents, and the law of contract shall not be deemed to 
     provide equivalent rights for purposes of this subsection.
       ``(c) Relationship to Copyright.--Protection under this 
     chapter is independent of, and does not affect or enlarge the 
     scope, duration, ownership, or subsistence of, any copyright 
     protection or limitation, including, but not limited to, fair 
     use, in any work of authorship that is contained in or 
     consists in whole or part of a collection of information. 
     This chapter does not provide any greater protection to a 
     work of authorship contained in a collection of information, 
     other than a work that is itself a collection of information, 
     than is available to that work under any other chapter of 
     this title.
       ``(d) Antitrust.--Nothing in this chapter shall limit in 
     any way the constraints on the manner in which products and 
     services may be provided to the public that are imposed by 
     Federal and State antitrust laws, including those regarding 
     single suppliers of products and services.
       ``(e) Licensing.--Nothing in this chapter shall restrict 
     the rights of parties freely to enter into licenses or any 
     other contracts with respect to the use of collections of 
     information.
       ``(f) Communications Act of 1934.--Nothing in this chapter 
     shall affect the operation of the provisions of the 
     Communications Act of 1934 (47 U.S.C. 151 et seq.), or shall 
     restrict any person from extracting or using subscriber list 
     information, as such term is defined in section 222(f)(3) of 
     the Communications Act of 1934 (47 U.S.C. 222(f)(3)), for the 
     purpose of publishing telephone directories in any format.
       ``(g) Securities and Commodities Market Information.--
       ``(1) Federal agencies and acts.--Nothing in this chapter 
     shall affect--
       ``(A) the operation of the provisions of the Securities 
     Exchange Act of 1934 (15 U.S.C. 78a et seq.) or the Commodity 
     Exchange Act (7 U.S.C. 1 et seq.);
       ``(B) the jurisdiction or authority of the Securities and 
     Exchange Commission and the Commodity Futures Trading 
     Commission; or
       ``(C) the functions and operations of self-regulatory 
     organizations and securities information processors under the 
     provisions of the Securities Exchange Act of 1934 and the 
     rules and regulations thereunder, including making market 
     information available pursuant to the provisions of that Act 
     and the rules and regulations promulgated thereunder.
       ``(2) Prohibition.--Notwithstanding any provision in 
     subsection (a), (b), (c), (d), or (f) of section 1403, 
     nothing in this chapter shall permit the extraction, use, 
     resale, or other disposition of real-time market information 
     except as the Securities Exchange Act of 1934, the Commodity 
     Exchange Act, and the rules and regulations thereunder may 
     otherwise provide. In addition, nothing in subsection (e) of 
     section 1403 shall be construed to permit any person to 
     extract or use real-time market information in a manner that 
     constitutes a market substitute for a real-time market 
     information service (including the real-time systematic 
     updating of or display of a substantial part of market 
     information) provided on a real-time basis.
       ``(3) Definition.--As used in this subsection, the term 
     `market information' means information relating to quotations 
     and transactions that is collected, processed, distributed, 
     or published pursuant to the provisions of the Securities 
     Exchange Act of 1934 or by a contract market that is 
     designated by the Commodity Futures Trading Commission 
     pursuant to the Commodity Exchange Act and the rules and 
     regulations thereunder.

     ``Sec. 1406. Civil remedies

       ``(a) Civil Actions.--Any person who is injured by a 
     violation of section 1402 may bring a civil action for such a 
     violation in an appropriate United States district court 
     without regard to the amount in controversy, except that any 
     action against a State governmental entity may be brought in 
     any court that has jurisdiction over claims against such 
     entity.
       ``(b) Temporary and Permanent Injunctions.--Any court 
     having jurisdiction of a civil action under this section 
     shall have the power to grant temporary and permanent 
     injunctions, according to the principles of equity and upon 
     such terms as the court may deem reasonable, to prevent a 
     violation of section 1402. Any such injunction may be served 
     anywhere in the United States on the person enjoined, and may 
     be enforced by proceedings in contempt or otherwise by any 
     United States district court having jurisdiction over that 
     person.
       ``(c) Impoundment.--At any time while an action under this 
     section is pending, the court may order the impounding, on 
     such terms as it deems reasonable, of all copies of contents 
     of a collection of information extracted or used in violation 
     of section 1402, and of all masters, tapes, disks, diskettes, 
     or other articles by means of which such copies may be 
     reproduced. The court may, as part of a final judgment or 
     decree finding a violation of section 1402, order the 
     remedial modification or destruction of all copies of 
     contents of a collection of information extracted or used in 
     violation of section 1402, and of all masters, tapes, disks, 
     diskettes, or other articles by means of which such copies 
     may be reproduced.
       ``(d) Monetary Relief.--When a violation of section 1402 
     has been established in any civil action arising under this 
     section, the plaintiff shall be entitled to recover any 
     damages sustained by the plaintiff and defendant's profits 
     not taken into account in computing the damages sustained by 
     the plaintiff. The court shall assess such profits or damages 
     or cause the same to be assessed under its direction. In 
     assessing profits the plaintiff shall be required to prove 
     defendant's gross revenue only and the defendant shall be 
     required to prove all elements of cost or deduction claims. 
     In assessing damages the court may enter judgment, according 
     to the circumstances of the case, for any sum above the 
     amount found as actual damages, not exceeding three times 
     such amount. The court in its discretion may award reasonable 
     costs and attorney's fees to the prevailing party and shall 
     award such costs and fees where it determines that an action 
     was brought under this chapter in bad faith against a 
     nonprofit educational, scientific, or research institution, 
     library, or archives, or an employee or agent of such an 
     entity, acting within the scope of his or her employment.
       ``(e) Reduction or Remission of Monetary Relief for 
     Nonprofit Educational, Scientific, or Research 
     Institutions.--The court shall reduce or remit entirely 
     monetary relief under subsection (d) in any case in which a 
     defendant believed and had reasonable grounds for believing 
     that his or her conduct was permissible under this chapter, 
     if the defendant was an employee or agent of a nonprofit 
     educational, scientific, or research institution, library, or 
     archives acting within the scope of his or her employment.
       ``(f) Actions Against United States Government.--
     Subsections (b) and (c) shall not apply to any action against 
     the United States Government.
       ``(g) Relief Against State Entities.--The relief provided 
     under this section shall be available against a State 
     governmental entity to the extent permitted by applicable 
     law.

     ``Sec. 1407. Criminal offenses and penalties

       ``(a) Violation.--
       ``(1) In general.--Any person who violates section 1402 
     willfully, and--
       ``(A) does so for direct or indirect commercial advantage 
     or financial gain, or
       ``(B) causes loss or damage aggregating $10,000 or more in 
     any 1-year period to the person who gathered, organized, or 
     maintained the information concerned,

     shall be punished as provided in subsection (b).
       ``(2) Inapplicability.--This section shall not apply to an 
     employee or agent of a nonprofit educational, scientific, or 
     research institution, library, or archives acting within the 
     scope of his or her employment.
       ``(b) Penalties.--An offense under subsection (a) shall be 
     punishable by a fine of not more than $250,000 or 
     imprisonment for not more than 5 years, or both. A second or 
     subsequent offense under subsection (a) shall be punishable 
     by a fine of not more than $500,000 or imprisonment for not 
     more than 10 years, or both.

     ``Sec. 1408. Limitations on actions

       ``(a) Criminal Proceedings.--No criminal proceeding shall 
     be maintained under this chapter unless it is commenced 
     within three years after the cause of action arises.

[[Page 647]]

       ``(b) Civil Actions.--No civil action shall be maintained 
     under this chapter unless it is commenced within three years 
     after the cause of action arises or claim accrues.
       ``(c) Additional Limitation.--No criminal or civil action 
     shall be maintained under this chapter for the extraction or 
     use of all or a substantial part of a collection of 
     information that occurs more than 15 years after the portion 
     of the collection that is extracted or used was first offered 
     for sale or otherwise in commerce, following the investment 
     of resources that qualified that portion of the collection 
     for protection under this chapter. In no case shall any 
     protection under this chapter resulting from a substantial 
     investment of resources in maintaining a preexisting 
     collection prevent any use or extraction of information from 
     a copy of the preexisting collection after the 15 years have 
     expired with respect to the portion of that preexisting 
     collection that is so used or extracted, and no liability 
     under this chapter shall thereafter attach to such acts of 
     use or extraction.''.

     SEC. 3. CONFORMING AMENDMENTS.

       (a) Table of Chapters.--The table of chapters for title 17, 
     United States Code, is amended by adding at the end the 
     following:

``14. Misappropriation of Collections of Information........1401''.....

       (b) District Court Jurisdiction.--(1) Section 1338 of title 
     28, United States Code, is amended--
       (A) in the section heading by inserting ``misappropriations 
     of collections of information,'' after ``trade-marks,''; and
       (B) by adding at the end the following:
       ``(d) The district courts shall have original jurisdiction 
     of any civil action arising under chapter 14 of title 17, 
     relating to misappropriation of collections of information. 
     Such jurisdiction shall be exclusive of the courts of the 
     States, except that any action against a State governmental 
     entity may be brought in any court that has jurisdiction over 
     claims against such entity.''.
       (2) The item relating to section 1338 in the table of 
     sections for chapter 85 of title 28, United States Code, is 
     amended by inserting ``misappropriations of collections of 
     information,'' after ``trade-marks,''.
       (c) Place for Bringing Actions.--(1) Section 1400 of title 
     28, United States Code, is amended by adding at the end the 
     following:
       ``(c) Civil actions arising under chapter 14 of title 17, 
     relating to misappropriation of collections of information, 
     may be brought in the district in which the defendant or the 
     defendant's agent resides or may be found.''.
       (2) The section heading for section 1400 of title 28, 
     United States Code, is amended to read as follows:

     ``Sec. 1400. Patents and copyrights, mask works, designs, and 
       collections of information''.

       (3) The item relating to section 1400 in the table of 
     sections at the beginning of chapter 87 of title 28, United 
     States Code, is amended to read as follows:

``1400. Patents and copyrights, mask works, designs, and collections of 
              information.''.
       (d) Court of Federal Claims Jurisdiction.--Section 1498(e) 
     of title 28, United States Code, is amended by inserting 
     ``and to protections afforded collections of information 
     under chapter 14 of title 17'' after ``chapter 9 of title 
     17''.

     SEC. 4. EFFECTIVE DATE.

       (a) In General.--This title and the amendments made by this 
     title shall take effect on the date of the enactment of this 
     Act, and shall apply to acts committed on or after that date.
       (b) Prior Acts Not Affected.--No person shall be liable 
     under chapter 14 of title 17, United States Code, as added by 
     section 2 of this Act, for the use of information lawfully 
     extracted from a collection of information prior to the 
     effective date of this Act, by that person or by that 
     person's predecessor in interest.

  Mr. HATCH. Second, there are many who believe a narrower unfair 
competition model is preferable to the model set forth in the Coble 
bill. One such proposal has been proposed by certain commercial 
database users, with the support of the scientific, education, and 
library communities. I ask unanimous consent that this proposal also be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    Proposed Bill To Amend Title 17, United States Code, To Promote 
        Research and Fair Competition in the Databases Industry

       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 ``Database Fair Competition 
     and Research Promotion Act of 1999''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) the United States workforce is increasingly engaged in 
     the creation, processing, distribution, and maintenance of 
     information in interstate and foreign commerce;
       (2) comprehensive, trustworthy databases are increasingly a 
     fundamental component of scientific, educational, and social 
     progress;
       (3) such databases are also critical to the operation of 
     financial markets and the burgeoning electronic commerce;
       (4) the United States public benefits from having ready 
     access to reliable, up-to-date databases concerning virtually 
     all the endeavors of mankind;
       (5) the production of accurate, trustworthy databases 
     requires the investment of substantial amounts of human, 
     technical, and financial resources to compile, sort, 
     organize, maintain, verify, and distribute;
       (6) the wholesale, unauthorized duplication and 
     dissemination of another person's information product 
     constitutes market-destructive free riding on the investment 
     of the information compiler;
       (7) advances in digital technology render information 
     products increasingly vulnerable to database piracy as 
     unauthorized copies may be made and transmitted around the 
     world in a few seconds;
       (8) current Federal and State laws, including laws 
     governing copyright, contract, and misappropriation, do not 
     adequately protect investments against this free riding;
       (9) the continuing development of digital technology has 
     enabled even the smallest information provider to transact 
     business on a national scale, rendering uniformity essential 
     to the continued growth of interstate commerce;
       (10) technology safeguards do not adequately deter database 
     piracy, because such safeguards are not foolproof, add to the 
     cost and difficulty of accessing and delivering information, 
     and provide no recourse once the safeguards have been 
     circumvented;
       (11) the United States should set the world standard for 
     effective and balanced database protection, and make a 
     determined effort to ensure similar international protection 
     of these valuable information products;
       (12) while wholesale duplication by a competitor diminishes 
     the incentive to invest in database creation, transformative 
     use of the information in new products promotes fair 
     competition, innovation, and consumer welfare;
       (13) transformative uses of information are also critical 
     to scientific research and the advancement of knowledge;
       (14) transformative uses of information are essential to 
     free speech, a free press, and democratic institutions;
       (15) any legal regime designed to prevent unfair 
     competition in databases must be carefully crafted so as not 
     to prevent fair competition;
       (16) in addition to database piracy, database publishers 
     are also harmed by other publishers misrepresenting various 
     aspects of the information included in their database, 
     including its source, currency, and comprehensiveness;
       (17) these misrepresentations also harm consumers who rely 
     upon them, thereby diminishing the credibility of the 
     database industry as a whole;
       (18) new legislation is needed to protect the substantial 
     investments involved in the production and dissemination of 
     databases in interstate commerce.

     SEC. 3. PROMOTION OF FAIR DATABASE COMPETITION.

       Title 17, United States Code, is amended by adding at the 
     end the following new chapter:

                ``CHAPTER 14--FAIR DATABASE COMPETITION

Sec.
``1401. Prohibition Against Duplication.
``1402. Permitted acts.
``1403. Exclusions.
``1404. Prohibition Against Misrepresentation.
``1405. Definitions.
``1406. Relationship to other laws.
``1407. Limitations on Liability.
``1408. Civil remedies.
``1409. Limitations on actions.

     ``SEC. 1401. PROHIBITION AGAINST DUPLICATION.

       ``It is unlawful for a person to duplicate a database 
     collected and organized by another person in a database that 
     competes in commerce with that other database.

     ``SEC. 1402. PERMITTED ACTS.

       ``(a) Collecting or Use of Information Obtained Through 
     Other Means.--Nothing in this chapter shall restrict any 
     person from independently collecting information or using 
     information obtained by means other than by duplicating it 
     from a database collected and organized by another person.
       ``(b) News Reporting.--Nothing in this chapter shall 
     restrict any person from duplicating a database for the sole 
     purpose of news reporting, including news gathering and 
     dissemination, or comment, unless the information duplicated 
     is time sensitive and has been collected by a news reporting 
     entity, and the duplication is part of a consistent pattern 
     engaged in for the purpose of direct competition.
       ``(c) Law Enforcement and Intelligence Activities.--Nothing 
     in this chapter shall prohibit an officer, agent, or employee 
     of the United States, a State, or a political subdivision of 
     a State, or a person acting under contract of one of the 
     enumerated officers, agents or employees, from duplicating a 
     database as part of lawfully authorized confidential 
     investigative, protective, or intelligence activities.

[[Page 648]]

       ``(d) Genealogical Information.--
       ``(1) In general.--No person shall be restricted from using 
     genealogical information for nonprofit, religious purposes, 
     or from using, for private, noncommercial purposes, 
     genealogical information that has been gathered, organized, 
     or maintained for nonprofit, religious purposes.
       ``(2) Definition.--For purposes of this subsection, 
     ``genealogical information'' includes, but is not limited to, 
     data indicating the date, time, and/or place of an 
     individual's birth, christening, marriage, death, or burial, 
     the identity of an individual's parents, spouse, children or 
     siblings, and other information useful in determining the 
     identity of ancestors.
       ``(e) Scientific, Educational, or Research Uses.--No person 
     or entity who for scientific, educational, or research 
     purposes duplicates the same information that has been 
     collected or generated by another person or entity shall 
     incur liability under this chapter so long as such conduct is 
     not part of a consistent pattern engaged in either for the 
     purpose of direct competition with that other person or for 
     the purpose of avoiding payment of reasonable fees for access 
     to a database incorporated into a product or service 
     specifically marketed for educational or research purposes.

      ``SEC. 1403. EXCLUSIONS.

       ``(a) Government Information.--
       ``(1) Exclusion.--Protection under Section 1 shall not 
     extend to government databases.
       ``(2) The incorporation of all or part of a government 
     database into a non-government database does not preclude 
     protection for the portions of the non-government database 
     which came from a source other than the government database.
       ``(3) Nothing in this chapter shall prevent a federal, 
     state, or local government entity from determining that a 
     database, the creation or maintenance of which is 
     substantially funded by that entity, shall not be subject to 
     the protection afforded under this chapter.
       ``(b) Databases Related to Digital Communications.--
     Protection under Section 1 does not extend to a database 
     incorporating information collected or organized to perform 
     the function of addressing, routing, forwarding, 
     transmitting, or storing digital online communications or the 
     function of providing or receiving connections for digital 
     online communications.
       ``(c) Computer Programs.--
       ``(1) Protection not extended.--Subject to paragraph (2), 
     protection under Section 1 shall not extend to computer 
     programs, including, but not limited to, any computer program 
     used in the manufacture, production, operation, or 
     maintenance or a database, or any element of a computer 
     program necessary to its operation.
       ``(2) Incorporated databases.--A database that is otherwise 
     subject to protection under Section 1 is not disqualified 
     from such protection solely because it resides in a computer 
     program, so long as the database does not, in whole or in 
     part, function as an element necessary to the operation of 
     the computer program.
       ``(d) Nonprotectable Subject Matter.--Protection for 
     databases under Section 1 does not extend to any idea, fact, 
     procedure, system, method of operation, concept, principle or 
     discovery, as distinct from a database protected under 
     Section 1.

     ``SEC. 1404. PROHIBITION AGAINST MISREPRESENTATION.

       ``It shall be unlawful for any person, in connection with 
     the use in commerce of any database, to misrepresent:
       ``(a) the sponsorship or approval of the database by any 
     other person;
       ``(b) the affiliation, connection, or association of the 
     person with any other person;
       ``(c) the qualities of the information contained in the 
     database, including its source, currency, or 
     comprehensiveness; or
       ``(d) the extent of the person's responsibility for the 
     collection and organization of the information contained in 
     the database.

     ``SEC. 1405. DEFINITIONS.

       ``As used in this chapter:
       ``(1) Database.--The term `database' means a collection of 
     discrete items of information that have been collected and 
     organized in a single place, or in such a way as to be 
     accessible through a single source, through the investment of 
     substantial monetary or other resources, for the purpose of 
     providing access to those discrete items of information by 
     users of the database.
       ``(2) Information.--The term `information' means facts, 
     data, or any other intangible material capable of being 
     collected and organized in a systematic way, with the 
     exception of works of authorship.
       ``(3) Commerce.--The term `commerce' means all commerce 
     which may be lawfully regulated by the Congress.
       ``(4) Competes in commerce.--The term `competes in 
     commerce' means that the database (A) is substantially the 
     same as the protected database, (B) displaces substantial 
     sales or licenses of the protected database; and (C) is 
     either offered for sale or license for commercial advantage 
     or is distributed to the public over a digital network, in 
     such a manner as to significantly diminish the incentive to 
     invest in the collecting or organizing of the protected 
     database.
       ``(5) Government database.--The term `government database' 
     means a database (A) that has been collected or maintained by 
     the United States of America; or (B) that is required by 
     federal statute or regulation to be collected or maintained, 
     to the extent so required.

     ``SEC. 1406. RELATIONSHIP TO OTHER LAWS.

       ``(a) Other Rights Not Affected.--Subject to subsection 
     (b), nothing in this chapter shall affect rights, 
     limitations, or remedies concerning copyright, or any other 
     rights or obligations relating to information, including laws 
     with respect to patent, trademark, design rights, antitrust, 
     trade secrets, privacy, access to public documents, misuse, 
     and the law of contract.
       ``(b) Preemption of State Law.--On or after the effective 
     date of this chapter, all rights that are equivalent to the 
     rights specified in section 1 with respect to the subject 
     matter of this chapter shall be governed exclusively by 
     Federal law, and no person is entitled to any equivalent 
     right in such subject matter under the common law or statutes 
     of any State.
       ``(c) Licensing.--Subject to the provisions on misuse in 
     Section 7(b), nothing in this chapter shall restrict the 
     rights of parties freely to enter into licenses or any other 
     contracts with respect to the use of information.
       ``(d) Communications Act of 1934.--Nothing in this chapter 
     shall affect the operation of the Communications Act of 1934 
     (47 U.S.C. 151 et seq.). Nor shall this chapter restrict any 
     person from using subscriber list information, as such term 
     is defined in section 222(f)(3) of the Communications Act of 
     1934 (47 U.S.C. 222(f)(3)).
       ``(e) Securities Exchange and Commodity Exchange Act.--
     Nothing in this chapter shall affect the operation of the 
     provisions of the Securities Exchange Act of 1934 of the 
     Commodity Exchange Act.

     ``SEC. 1407. LIMITATIONS ON LIABILITY.

       ``(a) Service Provider Liability.--
       ``(1) Subject to the limitations of paragraph (2), a 
     provider of online services or network access, or the 
     operator of facilities therefor, shall not be liable for a 
     violation of Section 1 by reason of:
       ``(A) transmitting, routing, or providing connections for, 
     material through a system or network controlled or operated 
     by or for the service provider;
       ``(B) providing storage of that material on a system or 
     network controlled by or operated for the service provider; 
     or
       ``(C) referring or linking users to an online location at 
     which infringing material is located.
       ``(2) Conditions.--The limitation on liability set forth in 
     paragraph (1)(B) and (C) shall apply, provided that--
       ``(A) the service provider did not initially place the 
     material on the system;
       ``(B) the service provider does not have actual knowledge 
     that the material violates Section 1 or, in the absence of 
     such actual knowledge, is not aware of facts or circumstances 
     from which such violation is apparent; or
       ``(C) upon obtaining such knowledge or awareness, acts 
     expeditiously to remove the material or to disable its use, 
     to the extent such removal or disablement is technically 
     feasible, effective and economically reasonable.
       ``(3) Notification of claimed violation.--A service 
     provider will be presumed to have actual knowledge of a 
     violation of Section 1 if it receives adequate notification 
     of a claimed violation in compliance with the requirements as 
     set forth in 17 U.S.C. Sec. 512(c)(4) from a person who is 
     injured by a violation of Section 1 or his designated agents.
       ``(4) Reenabling of use.--If a person claiming to be 
     injured by a violation of Section 1 does not obtain a court 
     order enjoining the alleged violation within ten days of the 
     service provider disabling the use, the alleged infringer may 
     request the service provider to reenable the use; and upon 
     receiving such request in compliance with the requirements as 
     set forth in 17 U.S.C. Sec. 512(f)(3), the service provider 
     may reenable the use without becoming liable for a violation 
     of Section 1.
       ``(5) Limitation on other liability.--A service provider 
     shall not be liable to any claim based on the service 
     provider's good faith removal, or disabling of a use, of 
     material claimed to violate Section 1 or based on facts or 
     circumstances from which such violation is apparent, 
     regardless of whether a violation is ultimately determined to 
     have occurred.
       ``(6) Misrepresentations.--Any person who knowingly 
     misrepresents that material or activities violate Section 1 
     shall be liable for any damages, including costs and 
     attorneys' fees, incurred by the alleged violator or by the 
     service provider who is injured by such misrepresentation.
       ``(b) Misuse.--The relief provided under this chapter shall 
     not be available to a person who misuses the protection 
     afforded a database under this chapter. In determining 
     whether a person has misused the protection afforded under 
     this chapter, a court shall consider, among other factors:
       ``(1) The extent to which the ability of persons to engage 
     in the permitted acts under this chapter has been frustrated 
     by contractual arrangements or technological measures;
       ``(2) the extent to which information contained in a 
     database that is the sole source

[[Page 649]]

     of the information contained therein is made available 
     through licensing or sale on reasonable terms and conditions;
       ``(3) the extent to which the license or sale of 
     information contained in a database protected under this 
     chapter has been conditioned on the acquisition or license of 
     any other product or service, or on the performance of any 
     action, not directly related to the license or sale;
       ``(4) the extent to which access to information necessary 
     to research, competition, or innovation purposes has been 
     prevented;
       ``(5) the extent to which the manner of asserting rights 
     granted under this chapter constitutes a barrier to entry 
     into the relevant database market; and
       ``(6) the extent to which the judicially developed 
     doctrines of misuse in other areas of the law may 
     appropriately be extended to the case in controversy.

     ``SEC. 1408. CIVIL REMEDIES.

       ``(a) Civil Actions.--Any person who is injured by a 
     violation of Section 1 or Section 4 may bring a civil action 
     for such a violation in an appropriate United States district 
     court without regard to the amount in controversy, except 
     that any action against a State government entity may be 
     brought in any court that has jurisdiction over claims 
     against such entity.
       ``(b) Temporary and Permanent Injunctions.--Any court 
     having jurisdiction of a civil action under this section 
     shall have the power to grant temporary and permanent 
     injunctions, according to the principles of equity and upon 
     such terms as the court may deem reasonable, to prevent a 
     violation of section 1 or 4. Any such injunction may be 
     served anywhere in the United States on the person enjoined, 
     and may be enforced by proceedings in contempt or otherwise 
     by any United States district court having jurisdiction over 
     that person.
       ``(c) Impoundment.--At any time while an action under this 
     section is pending, the court may order the impounding, on 
     such terms as it deemds reasonable, of all copies of 
     databases made in violaiton of section 1, and of all masters, 
     tapes, disks, diskettes, or other articles by means of which 
     such copies may be reproduced. The court may, as part of a 
     final judgment or decree finding a violation of section 1, 
     order the remedial modification or destruction of all copies 
     of databases made in violation of section 1, and of all 
     masters, tapes, disks, diskettes, or other articles by means 
     of which such copies may be reproduced.
       ``(d) Monetary Relief.--
       ``(1) When a violation of section 1 has been established in 
     any civil action arising under this section, the plaintiff 
     shall be entitled, subject to the principles of equity, to 
     recover defendant's profits and any damages sustained by the 
     plaintiff. In assessing profits the plaintiffs shall be 
     required to prove defendant's sales only; defendant must 
     prove all elements of cost or deduction claims. In assessing 
     damages the court may enter judgment, according to the 
     circumstances of the case, for any sum above the amount found 
     as actual damages, not exceeding three times such amount.
       ``(2) When a violation of Section 4 has been established, 
     the plaintiff shall be entitled to recover, subject to the 
     principles of equity, any damages sustained.
       ``(3) The court in its discretion may award reasonable 
     costs and attorney's fees to the prevailing party and shall 
     award such costs and fees where it determines that an action 
     was brought under this chapter in bad faith against a 
     nonprofit scientific, research, or educational institution, 
     library or archives, or against an employee or agent of such 
     entity, acting within the scope of his or her employment.
       ``(e) Reduction or Remission of Remedies for Nonprofit 
     Scientific, Educational, or Research Institutions.--The court 
     shall reduce or remit entirely monetary relief under 
     subsection (d) in any case in which the defendant believed, 
     and had reasonable grounds for believing, that his or her 
     conduct was permissible under this chapter, if the defendant 
     was an employee or agent of a nonprofit scientific, 
     educational, or research institution, library or archives, 
     acting within the scope of his or her employment.
       ``(f) Actions Against United States Government.--
     Subsections (b) and (c) shall not apply to any action against 
     the United States Government.
       ``(g) Relief Against State Entities.--The relief provided 
     under this section shall be available against a State 
     governmental entity to the extent permitted by applicable 
     law.
       ``(h) Sole Source Databases.--If the court determines that 
     a defendant who has violated Section 1 could not have 
     independently collected the information taken from the 
     plaintiff's database in a commercially practicable manner, 
     the relief available to the plaintiff shall be limited to the 
     plaintiff's actual damages, measured by a reasonable royalty.

     ``SEC. 1409. LIMITATIONS ON ACTIONS.

       ``(a) No civil action shall be maintained under the 
     provisions of this chapter unless it is commenced within 
     three years after the claim accrued.
       ``(b) No civil action shall be maintained under the 
     provisions of this chapter for the duplication of a database 
     collected and organized prior to the effective date of this 
     Act.

     SEC. 4. CONFORMING AMENDMENT.

       The table of chapters for title 17, United States Code, is 
     amended by adding at the end the following:

                  CHAPTER 14--PROTECTION OF DATABASES

     SEC. 5. EFFECTIVE DATE.

       (a) In General.--This Act and the amendments made by this 
     Act shall take effect on the date of the enactment of this 
     Act, and shall apply to acts committed on or after that date.
       ``(b) Prior Acts Not Affected.--No person shall be liable 
     under chapter 14 of title 17, United States Code, as added by 
     section 2 of this Act, for the acts done prior to the 
     effective date of this Act, by that person or by that 
     person's predecessor in interest.

     SEC. 6. REPORT TO CONGRESS.

       Not later than 24 months after the date of enactment of 
     this Act, the Copyright Office, after consultation with 
     appropriate agencies, which may include the Department of 
     Justice, the Patent and Trademark Office, and the Federal 
     Trade Commission, shall report to the Congress on the effect 
     this Act has had on the United States database industry and 
     related parties, including--
       (a) the extent of competition between database producers, 
     including the concentration of market power within the 
     database industry;
       (b) the investment in the development and maintenance of 
     databases, including changes in the number and size of 
     databases;
       (c) the availability of information to industries and 
     researchers which rely upon such availability; and
       (d) whether in the period after enactment of this 
     legislation database producers have faced unfair competition, 
     particularly from publishers in the European Union.
       The report shall include legislative recommendations, if 
     any.

  Mr. HATCH. I include this proposal in the Record hoping that it will 
also help our deliberations be more fully informed and spur discussion 
of the merits of each approach. The existence of, and my dissemination 
of, these various approaches, however, should not be used to delay 
prompt action on this important issue.
  In short, Mr. President, as we rapidly approach the new millennium, 
it is time for Congress to act to ensure adequate federal protection 
for American investment in information. I intend this to be a high 
priority in the Judiciary Committee this year and intend to move 
forward with hearings and timely consideration of appropriate 
legislation. I look forward to working with the interested parties in 
an effort to build consensus in this area, and I encourage my 
colleagues to join with me in support of this process.

                               Exhibit 1

                                 S. --

       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 ``Database Antipiracy Act of 
     1999.''

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) the United States workforce is increasingly engaged in 
     the creation, processing, distribution, and maintenance of 
     information in interstate and foreign commerce;
       (2) comprehensive, trustworthy collections of information 
     are increasingly a fundamental component of scientific, 
     educational, and social progress;
       (3) the United States public benefits from having ready 
     access to reliable, up-to-date collections of information 
     concerning virtually all the endeavors of mankind;
       (4) the production of accurate, trustworthy collections of 
     information requires the investment of substantial amounts of 
     human, technical, and financial resources to compile, sort, 
     organize, maintain, verify, and distribute;
       (5) the wholesale, unauthorized copying, and dissemination 
     of another person's information product constitutes market-
     destructive free riding on the investment of the information 
     compiler;
       (6) advances in digital technology render informational 
     products increasingly vulnerable to database piracy as 
     unauthorized copies may be made and transmitted around the 
     world in a few seconds;
       (7) current Federal and State laws, including laws 
     governing copyright, contract, and misappropriation, do not 
     adequately protect investments against this free riding;
       (8) as a result of the decision of the United States 
     Supreme Court in Feist Publications, Inc. v. Rural Telephone 
     Services Co., 499 United States 340 (1991), and certain 
     decisions of the inferior courts of the United States, the 
     copyright law affords members of the United States business 
     community, both individuals and entities who create and 
     distribute compilations of data less certain protection 
     against piracy;
       (9) legislation is needed to ensure that legitimate access 
     to discrete data is not impaired while also encouraging 
     persons to

[[Page 650]]

     identify, collect, verify, and add value to such information 
     and make it available for study, enjoyment, and use;
       (10) the piecemeal, inconsistent protection for databases 
     provided by State misappropriation and contract laws 
     inadequately protects the investment of database compilers 
     from destructive acts of free riding;
       (11) the continuing development of digital technology has 
     enabled even the smallest information provider to transact 
     business on a national scale, rendering uniformity essential 
     to the continued growth of interstate commerce;
       (12) technology safeguards do not adequately deter database 
     piracy, because such safeguards are not foolproof, add to the 
     cost and difficulty of accessing and delivering information, 
     and provide no recourse once the safeguards have been 
     circumvented;
       (13) the United States should set the world standard for 
     effective and balanced database protection, and make a 
     determined effort to ensure similar international protection 
     of these valuable information products;
       (14) database piracy, if left unchecked by Congress, will 
     so reduce the incentive to produce these products that the 
     quality or existence will be significantly threatened or 
     eliminated; and
       (15) new legislation is needed to protect the substantial 
     investments involved in the production and dissemination of 
     collections of information in interstate commerce.

     SEC. 3. MISAPPROPRIATION OF DATABASES.

       Title 17, United States Code, is amended by adding at the 
     end the following new chapter:

              ``CHAPTER 13--MISAPPROPRIATION OF DATABASES

``Sec.
``1301. Definitions.
``1302. Prohibition against misappropriation.
``1303. Permitted acts.
``1304. Permitted use for certain purposes.
``1305. Exclusions.
``1306. Relationship to other laws.
``1307. Certain instructional activities and library uses.
``1308. Civil remedies.
``1309. Criminal offenses and penalties.
``1310. Limitations on actions.
``1311. Deposit of databases.

     ``Sec. 1301. Definitions

       ``As used in this chapter:
       ``(1) Database.--The term `database' means a collection of 
     discrete items of information that have been collected and 
     organized in a single place, or in such a way as to be 
     accessible through a single source, for the purpose of 
     providing access to those discrete items of information by 
     users of the database.
       ``(2) Information.--The term `information' means facts, 
     data, works of authorship, or any other intangibles capable 
     of being collected and organized in a systematic way.
       ``(3) Neighboring market.--The term `neighboring market' 
     means any market that is commonly exploited by persons 
     offering similar products or services incorporating 
     databases.
       ``(4) Commerce.--The term `commerce' means all commerce 
     which may be lawfully regulated by the Congress.
       ``(5) Product or service.--A product or service 
     incorporating a database does not include a product or 
     service incorporating a database that has been gathered, 
     organized, or maintained to perform the function of 
     addressing, routing, forwarding, transmitting or storing 
     digital online communications or the function of providing or 
     receiving connections for digital online communications.
       ``(6) Government database.--The term `government database' 
     means a database that has been created or maintained by or 
     for a government entity, whether Federal, State, or local--
       ``(A) that is created or maintained by an employee or agent 
     of such government entity, or any person exclusively licensed 
     by such entity, acting within the scope of his or her 
     employment, agency, or license;
       ``(B) the creation or maintenance of which is substantially 
     funded by such government entity; or
       ``(C) that is required by statute or regulation to be 
     created or maintained, to the extent so required, except that 
     such term does not include a database that is required by a 
     statute or regulation to be created or maintained where such 
     database or a prior version, was first created or maintained 
     prior to the enactment of such statute or regulation.
       ``(7) Government information.--The term `government 
     information' means information produced or otherwise 
     generated by or for a government entity, whether Federal, 
     State, or local--
       ``(A) that is produced or otherwise generated by an 
     employee or agent of such government entity or any person 
     exclusively licensed by such entity, acting within the scope 
     of his or her employment, agency, or exclusive license; or
       ``(B) the production or generation of which is 
     substantially funded by such government entity.

     ``Sec. 1302. Prohibition against misappropriation

       ``Any person who extracts, or uses in commerce, all or a 
     substantial part, measured either quantitatively or 
     qualitatively, of a database gathered, organized, or 
     maintained by another person through the investment of 
     substantial monetary or other resources, so as to cause 
     substantial harm to the actual or neighboring market of that 
     other person, or a successor in interest of that other 
     person, for a product or service that incorporates that 
     database and is offered or intended to be offered for sale or 
     otherwise in commerce by that other person, or a successor in 
     interest of that person, shall be liable to that person or 
     successor in interest for the remedies set forth in section 
     1308.

     ``Sec. 1303. Permitted acts

       ``(a) Individual Items of Information and Other 
     Insubstantial Parts.--Nothing in this chapter shall prevent 
     the extraction or use of an individual item of information, 
     or other insubstantial part of a database, in itself. An 
     individual item of information, including a work of 
     authorship, shall not itself be considered a substantial part 
     of a database under section 1302. Nothing in this subsection 
     shall permit the repeated or systematic extraction or use of 
     individual items or insubstantial parts of a database so as 
     to circumvent the prohibition contained in section 1302.
       ``(b) Gathering or Use of Information Obtained Through 
     Other Means.--Nothing in this chapter shall restrict any 
     person from independently gathering information or using 
     information obtained by means other than extracting it from a 
     database gathered, organized, or maintained by another person 
     through the investment of substantial monetary or other 
     resources.
       ``(c) Nonprofit Educational, Scientific, or Research 
     Uses.--Notwithstanding section 1302, no person shall be 
     restricted from extracting or using information for nonprofit 
     educational, scientific, or research purposes in a manner 
     that does not harm directly the actual market for the product 
     or service referred to in section 1302.
       ``(d) Genealogical Information.--
       ``(1) In general.--Notwithstanding section 1302, no person 
     shall be restricted from extracting or using genealogical 
     information for nonprofit, religious purposes, or from 
     extracting or using, for private, noncommercial purposes, 
     genealogical information that has been gathered, organized, 
     or maintained for nonprofit, religious purposes.
       ``(2) Definition.--For purposes of this subsection, 
     `genealogical information' includes, but is not limited to, 
     data indicating the date, time and/or place of an 
     individual's birth, christening, marriage, death, or burial, 
     the identity of an individual's parents, spouse, children or 
     siblings, an other information useful in determining the 
     identity of ancestors.
       ``(e) News Reporting.--Nothing in this chapter shall 
     restrict any person from extracting or using information for 
     the sole purpose of news reporting, including news gathering 
     and dissemination, or comment, unless the information so 
     extracted or used is time sensitive and has been gathered by 
     a news reporting entity, and the extraction or use is part of 
     a consistent pattern engaged in for the purpose of direct 
     competition.
       ``(f) Transfer of Copy.--Nothing in this chapter shall 
     restrict the owner of a particular lawfully made copy of all 
     or part of a database from selling or otherwise disposing of 
     the possession of that copy.
       ``(g) Law Enforcement and Intelligence Activities.--Nothing 
     in this chapter shall prohibit an officer, agent, or employee 
     of the United States, a State, or a political subdivision of 
     a State, or a person acting under contract of one of the 
     enumerated officers, agents, or employees from extracting and 
     using information as part of lawfully authorized confidential 
     investigative, protective, or intelligence activities.

     ``Sec. 1304. Permitted use for certain purposes

       ``(a) In General.--Nothing in this Chapter shall prohibit 
     or otherwise restrict the extraction or use of a database 
     protected under this chapter for the following purposes--
       ``(1) for illustration, explanation or example, comment or 
     criticism, internal verification, or scientific or 
     statistical analysis of the portion used or extracted; and
       ``(2) in the case of nonprofit scientific, educational or 
     research activities by nonprofit organizations, for similar 
     customary or transformative purposes.
       ``(b) Certain Use Not Permitted.--In no case may a use or 
     extraction for a purpose described in subsection (a) be 
     permitted if the substantial harm referred to in section 
     1302--
       ``(1) arises because the amount of the portion used or 
     extracted is more than is reasonable and customary for the 
     purpose;
       ``(2) consists of the use or extraction being intended to, 
     or being likely to, serve as a substitute for or to supplant 
     all or a substantial part of the database from which the 
     extraction or use is made or an adaptation thereof that is 
     protected under this chapter;
       ``(3) arises because the extraction or use is intended to 
     avoid payment of reasonable fees for use of a database 
     incorporated into a product or service specifically marketed 
     for educational, scientific or research purposes; or
       ``(4) arises because the use or extraction is part of a 
     pattern, system, or repeated practice by the same party, 
     related parties, or parties acting in concert with respect to 
     the same database or a series of related databases.

[[Page 651]]



     ``Sec. 1305. Exclusions

       ``(a) Government Databases.--
       ``(1) Exclusion.--Protection under this chapter shall not 
     extend to government databases.
       ``(2) The adoption or incorporation of, or reference to, a 
     non-government database otherwise protected under section 
     1302 into or in a government publication, regulation, or 
     statute does not preclude protection for such non-government 
     database under this chapter.
       ``(3) The incorporation of all or part of a government 
     database into a non-government database otherwise protected 
     under section 1302 does not preclude protection for such non-
     government database under this chapter.
       ``(b) Availability of Government Databases and Government 
     Information Incorporated Into Databases.--
       ``(1) Any person, or a successor in interest, who has 
     incorporated all or part of a government database into a 
     database subject to protection under section 1302 of this 
     chapter, or who has incorporated government information into 
     a database subject to protection under section 1302 of this 
     chapter, shall provide the ability to extract or use the 
     information so incorporated to any person so requesting, 
     where such person is acting within the scope of his or her 
     employment by a nonprofit library, archives, educational, 
     scientific, or research institution, provided that--
       ``(A) the request for such extraction or use is accompanied 
     by a written statement--
       ``(i) clearly identifying the information to be extracted 
     or used, in whole or in part; and
       ``(ii) providing evidence of reasonable, good faith efforts 
     made to obtain such information from other sources;
       ``(B) the person requesting the ability to extract or use 
     such information can show that such extraction or use is 
     necessary to further a legitimate nonprofit educational, 
     scientific, or research activity;
       ``(C) the person who has incorporated such information as 
     part of his or her database, or a successor in interest, can 
     reasonably identify, extract, and provide the requested 
     information as first obtained from the government entity, 
     employee, agent, or exclusive licensee, in the original 
     format, separate and apart from other portions of the 
     database; and
       ``(D) the person requesting such extraction or use 
     reimburses the person who has gathered, organized or 
     maintained such information for the costs of identification, 
     extraction and delivery.
       ``(2) In cases where a dispute arises as to whether a 
     request made for the ability to extract or use government 
     information or information incorporated into a protected 
     database from a government database, or a response thereto, 
     satisfies the requirements of subsection (b)(1), the court 
     shall determine whether such request was reasonably made or 
     denied and may, upon finding that the request was denied in 
     bad faith, order the person to whom the request was made to 
     provide the ability extract or use the requested information 
     without reimbursement, to pay all costs and attorney's fees 
     incurred by the person making such request, or both
       ``(c) Exception.--The exclusions under subsections (a)(1) 
     and (b) do not apply to any information required to be 
     collected and disseminated--
       ``(1) under the Securities Exchange Act of 1934 by a 
     national securities exchange, a registered securities 
     association, or a registered securities information 
     processor, subject to section 1306(g) of this title; or
       ``(2) under the Commodity Exchange Act by a contract 
     market, subject to section 1306(g) of this title.
       ``(d) Computer Programs.--
       ``(1) Protection not extended.--Subject to paragraph (2), 
     protection under this chapter shall not extend to computer 
     programs, including, but not limited to, any computer program 
     used in the manufacture, production, operation, or 
     maintenance of a database, or any element of a computer 
     program necessary to its operation.
       ``(2) Incorporated databases.--A database that is otherwise 
     subject to protection under this chapter is not disqualified 
     from such protection solely because it resides in a computer 
     program, so long as the database does not, in whole or in 
     part, function as an element necessary to the operation of 
     the computer program.

     ``Sec. 1306. Relationship to other laws

       ``(a) Other Rights Not Affected.--Subject to subsection 
     (b), nothing in this chapter shall affect rights, 
     limitations, or remedies concerning copyright, or any other 
     rights or obligations relating to information, including laws 
     with respect to patent, trademark, design rights, antitrust, 
     trade secrets, privacy, access to public documents, fraud and 
     other inequitable conduct (including, where applicable, 
     misuse), and the law of contract.
       ``(b) Preemption of State Law.--On or after the effective 
     date of this chapter, all rights that are equivalent to the 
     rights specified in section 1302 with respect to the subject 
     matter of this chapter shall be governed exclusively by 
     Federal law, and no person is entitled to any equivalent 
     right in such subject matter under the common law or statutes 
     of any State. State laws with respect to trademark, design 
     rights, antitrust, trade secrets, privacy, access to public 
     documents, and the law of contract shall not be deemed to 
     provide equivalent rights for purposes of this subsection.
       ``(c) Relationship to Copyright.--Protection under this 
     chapter is independent of, and does not affect or enlarge the 
     scope, duration, ownership, or subsistence of, any copyright 
     protection or limitation, including, but not limited to, fair 
     use, in any work of authorship that is contained in or 
     consists in whole or part of a database. This chapter does 
     not provide any greater protection to a work of authorship 
     contained in a database, other than a work that is itself a 
     database, than is available to that work under any other 
     chapter of this title.
       ``(d) Antitrust.--Nothing in this chapter shall limit in 
     any way the constraints on the manner in which products and 
     services may be provided to the public that are imposed by 
     Federal and State antitrust laws, including those regarding 
     single suppliers of products and services.
       ``(e) Licensing.--Nothing in this chapter shall restrict 
     the rights of parties freely to enter into licenses or any 
     other contracts with respect to the use of databases.
       ``(f) Communications Act of 1934.--Nothing in this chapter 
     shall affect the operation of the provisions of the 
     Communications Act of 1934 (47 U.S.C. 151 et seq.). Nor shall 
     this chapter restrict any person from extracting or using 
     subscriber list information, as such term is defined in 
     section 222(f)(3) of the Communications Act of 1934 (47 
     U.S.C. 222(f)(3)).
       ``(g) Securities and Commodities Market Information.--
       ``(1) Federal agencies and acts.--Nothing in this Act shall 
     affect:
       ``(A) the operation of the provisions of the Securities 
     Exchange Act of 1934 (15 U.S.C. 78a et seq.) or the Commodity 
     Exchange Act (7 U.S.C. 1 et seq.);
       ``(B) the jurisdiction or authority of the Securities and 
     Exchange Commission and the Commodity Futures Trading 
     Commission; or
       ``(C) the functions and operations of self-regulatory 
     organizations and securities information processors under the 
     provisions of the Securities Exchange Act of 1934 and the 
     rules and regulations thereunder, including making market 
     information available pursuant to the provisions of that Act 
     and the rules and regulations promulgated thereunder.
       ``(2) Rules of construction.--Nothing in subsection (e) of 
     section 1303 shall be construed to permit any person to 
     extract or use real-time market information in a manner that 
     constitutes a market substitute for a real-time market 
     information service (including the real-time systematic 
     updating of or display of a substantial part of market 
     information) provided on a real-time basis.
       ``(3) Definition.--As used in this subsection, the term 
     `market information' means information relating to quotations 
     and transactions that is collected, processed, distributed, 
     or published pursuant to the provisions of the Securities 
     Exchange Act of 1934 or by a contract market that is 
     designated by the Commodity Futures Trading Commission 
     pursuant to the Commodity Exchange Act and the rules and 
     regulations thereunder.

     ``Sec. 1307. Certain instructional activities and library 
       uses

       ``(a) It shall not be a violation of Sec. 1302 to display 
     visually the content of a lawfully obtained database if--
       ``(1) such display occurs in the course of formal, face-to-
     face teaching activities in a classroom or similar 
     instructional location of a nonprofit educational 
     institution; or
       ``(2) such display occurs in the course of, and as a 
     directly relevant and integral part, of a transmission, where 
     such transmission is a regular part of a systematic 
     instructional activity of a nonprofit educational 
     institutional or governmental body, and is made primarily for 
     reception--
       ``(A) in classrooms or similar places of information;
       ``(B) by persons whose disabilities prevent attendance at 
     such classroom or place of instruction; or
       ``(C) by government offices or employees as part of their 
     official duties or employment.
       ``(b) It shall not be a violation of Sec. 1302 for a 
     nonprofit library accessible to the public to make no more 
     than--
       ``(1) one copy, in either analog or digital form, of all or 
     a portion of--
       ``(A) an undisseminated database in the library's current 
     collection if such copy is made solely for the purpose of 
     preservation and security in connection with that library's 
     collection; and
       ``(B) a disseminated and commercially available database 
     for the sole purpose of replacing in that library's 
     collection, material that is damaged or deteriorating, or has 
     been lost or stolen if the library has reasonably determined 
     that a replacement cannot be commercially purchased, licensed 
     or otherwise obtained,

     provided that any copy made in digital format is neither 
     further reproduced or distributed in that format nor made 
     available to the public outside of the physical premises of 
     that library;
       ``(2) one analog copy of all or a portion of an 
     undisseminated database in the library's current collection 
     for the sole purpose of research use in another nonprofit 
     publicly accessible library; or

[[Page 652]]

       ``(3) one analog copy of a small portion of a database in 
     connection with standard and customary library transactions, 
     including inter-library arrangements, for the benefit of a 
     specific user who takes permanent possession of that copy, if 
     the library--
       ``(A) has no notice that the copy would be used for 
     purposes other than private study;
       ``(B) is not aware that it is involved in related or 
     concerted multiple or cumulative copying; and
       ``(C) is not engaged in systematic activity other than 
     through its mere participation in the interlibrary 
     arrangement.
       ``(c) Nothing in this section affects any contractual 
     obligation assumed by the library, educational institution or 
     governmental body as part of a donor, subscription, license, 
     or other arrangement.

     ``Sec. 1308. Civil remedies

       ``(a) Civil Actions.--Any person who is injured by a 
     violation of section 1302 may bring a civil action for such a 
     violation in an appropriate United States district court 
     without regard to the amount in controversy, except that any 
     action against a State governmental entity may be brought in 
     any court that has jurisdiction over claims against such 
     entity.
       ``(b) Temporary and Permanent Injunctions.--Any court 
     having jurisdiction of a civil action under this section 
     shall have the power to grant temporary and permanent 
     injunctions, according to the principles of equity and upon 
     such terms as the court may deem reasonable, to prevent a 
     violation of section 1302. Any such injunction may be served 
     anywhere in the United States on the person enjoined, and may 
     be enforced by proceedings in contempt or otherwise by any 
     United States district court having jurisdiction over that 
     person.
       ``(c) Impoundment.--At any time while an action under this 
     section is pending, the court may order the impounding, on 
     such terms as it deems reasonable, of all copies of contents 
     of a database extracted or used in violation of section 1302, 
     and of all masters, tapes, disks, diskettes, or other 
     articles by means of which such copies may be reproduced. the 
     court may, as part of a final judgment or decree finding a 
     violation of section 1302, order the remedial modification or 
     destruction of all copies of contents of a database extracted 
     or used in violation of section 1302, and of all masters, 
     tapes, disks, diskettes, or other articles by means of which 
     such copies may be reproduced.
       ``(d) Monetary Relief.--When a violation of section 1302 
     has been established in any civil action arising under this 
     section, the plaintiff shall be entitled to recover any 
     damages sustained by the plaintiff and defendant's profits 
     not taken into account in computing the damages sustained by 
     the plaintiff. the court shall assess such profits or damages 
     or cause the same to be assessed under its direction. In 
     assessing profits the plaintiff shall be required to prove 
     defendant's gross revenue only and the defendant shall be 
     required to prove all elements of cost or deduction claims. 
     In assessing damages the court may enter judgment, according 
     to the circumstances of the case, for any sum above the 
     amount found as actual damages, not exceeding three times 
     such amount, provided that the database that is the subject 
     of the judgment has been properly deposited pursuant to 
     section 1311. the court in its discretion may award 
     reasonable costs and attorney's fees to the prevailing party 
     and shall award such costs and fees where it determines that 
     an action was brought under this chapter in bad faith against 
     a nonprofit educational, scientific, or research institution, 
     library, or archives, or an employee or agent of such an 
     entity, acting within the scope of his or her employment.
       ``(e) Reduction or Remission of Monetary Relief for 
     Nonprofit Educational, Scientific, or Research 
     Institutions.--The court shall reduce or remit entirely 
     monetary relief under subsection (d) in any case in which a 
     defendant believed and had reasonable grounds for believing 
     that his or her conduct was permissible under this chapter, 
     if the defendant was an employee or agent of a nonprofit 
     educational, scientific, or research institution, library, or 
     archives acting within the scope of his or her employment.
       ``(f) Actions Against United States Government.--
     Subsections (b) and (c) shall not apply to any action against 
     the United States Government.
       ``(g) Relief Against State Entities.--The relief provided 
     under this section shall be available against a State 
     governmental entity to the extent permitted by applicable 
     law.

     ``Sec. 1309. Criminal offenses and penalties

       ``(a) Violation.--
       ``(1) In general.--Any person who violates section 1302 
     willfully shall be punished as provided in subsection (b), 
     provided such violation--
       ``(A) is committed for direct or indirect commercial 
     advantage or financial gain; or
       ``(B) causes loss or damage aggregating $10,000 or more in 
     any 1-year period to the person who gathered, organized, or 
     maintained the information concerned.
       ``(2) Inapplicability.--This section shall not apply to an 
     employee or agent of a nonprofit education, scientific, or 
     research institution, library, or archives acting within the 
     scope of his or her employment.
       ``(b) Penalties.--(1) Any person who commits an offense 
     under subsection (a) shall be punishable by a fine of not 
     more than $100,000 or imprisonment for not more than 1 year;
       ``(2) Any person who commits an offense under subsection 
     (a) and causes loss or damage aggregating $20,000 or more in 
     any 1-year period to the person who gathered, organized, or 
     maintained the information concerned, shall be punishable by 
     a fine of not more than $250,000 or imprisonment for not more 
     than 5 years;
       ``(3) Any person who commits a second or subsequent offense 
     under subsection (a) shall be punishable by a fine of not 
     more than $500,000 or imprisonment for not more than 10 
     years.

     ``Sec. 1310. Limitations on actions

       ``(a) Criminal Proceedings.--No criminal proceeding shall 
     be maintained under this chapter unless it is commenced 
     within three years after the cause of action arises.
       ``(b) Cvil Actions.--No civil action shall be maintained 
     under this chapter unless it is commenced within three years 
     after the cause of action arises or claim accrues.
       ``(c) Additional Limitation.--No criminal or civil action 
     shall be maintained under this chapter for the extraction or 
     use of all or a substantial part of a database that occurs 
     more than 15 years after the end of the calendar year in 
     which the portion of the database that is extracted or used 
     was first offered for sale or otherwise in commerce, by the 
     person claiming protection under this chapter or that 
     person's predecessor in interest, after the investment of 
     resources was made that qualified that portion of the 
     database for protection under this chapter. In no case shall 
     the renewal of protection for any part of parts of an 
     existing database owing to the substantial investment of 
     resources in updating or maintaining that database prevent 
     any use or extraction of information contained in the 
     preexisting database at the expiration of the term prescribed 
     above, and no liability under this Chapter shall thereafter 
     attach to such acts or use or extraction.
       ``(d) Additional Defense for Database Not Deposited With 
     the Copyright Office.--In the case of a database that has not 
     been deposited with the Copyright Office before the 
     extraction or use takes place and within one year of its 
     first offering for sale or otherwise in commerce, no civil or 
     criminal action shall be maintained under this title if the 
     person extracting or using the information believed and had 
     reasonable grounds to believe that fifteen years had elapsed 
     from the end of the calendar year in which the database was 
     first offered for sale or otherwise in commerce after the 
     investment of resources was made that qualified the portion 
     of the database extracted or used for protection under this 
     chapter.
       ``(e) Service Provider Liability.
       ``(1) Limitation on liability.--Subject to the limitations 
     of paragraph (2), a provider of online services or network 
     access, or the operator of facilities therefor, shall not be 
     liable for a violation of section 1302 by reason of--
       ``(A) transmitting, routing, or providing connections for, 
     material through a system or network controlled or operated 
     by or for the service provider;
       ``(B) providing storage of that material on a system or 
     network controlled by or operated for the service provider; 
     or
       ``(C) referring or linking users to an online location at 
     which a database is used in a manner prohibited by section 
     1302.
       ``(2) Conditions.--The limitation on liability set forth in 
     paragraph (1) (B) and (C) shall apply, provided that--
       ``(A) the service provider did not initially place the 
     material on the system;
       ``(B) the service provider does not have actual knowledge 
     that the use violates section 1302 or, in the absence of such 
     actual knowledge, is not aware of facts or circumstances from 
     which such violation is apparent; or
       ``(C) upon obtaining such knowledge or awareness, the 
     service provider acts expeditiously to remove the material, 
     or to disable the use, to the extent such removal or 
     disablement is technically feasible, effective and 
     economically reasonable.
       ``(3) Notification of claimed violation.--A service 
     provider will be presumed to have actual knowledge if it 
     receives adequate notification of a claimed violation in 
     compliance with the requirements as set forth in section 
     512(c)(4) of this title from a person who is injured by a 
     violation of section 1302 or his designated agents.
       ``(4) Reenabling of use.--If a person claiming to be 
     injured by a violation of section 1302 does not obtain a 
     court order enjoining the alleged violation within 10 days of 
     the service provider disabling the use, the alleged violator 
     may request the service provider to reenable the use, and 
     upon receiving such request in compliance with the 
     requirements as set forth in section 512(f)(3) of this title, 
     the service provider may reenable the use without becoming 
     liable for a violation of section 1302.
       ``(5) Limitation on other liability.--A service provider 
     shall not be liable for any claim based on the service 
     provider's good faith removal, or disabling of a use, or a 
     database claimed to violate section 1302 or

[[Page 653]]

     based on facts or circumstances from which such violation is 
     apparent, regardless of whether a violation of section 1302 
     is ultimately determined to have occurred.
       ``(6) Misrepresentations.--Any person who knowingly 
     misrepresents that material or activities violate section 
     1302 shall be liable for any damages, including costs and 
     attorneys' fees, incurred by the alleged violator or by the 
     service provider who is injured by such misrepresentation.

     ``Sec. 1311. Deposit of databases

       ``(a) In General.--Within one year from the date on which a 
     database is first offered for sale or otherwise in commerce 
     after the investment that qualified that database for 
     protection under this chapter, a person claiming protection 
     under section 1302 for a database may deposit the database by 
     delivering to the Copyright Office a deposit copy, Statement 
     of Deposit, and fee, as specified by this section.
       ``(b) Copyright Office Regulations.--The Register of 
     Copyrights shall establish by regulation procedures for the 
     deposit of databases, including permissible formats for 
     deposit copies.
       ``(c) Deposit for Databases.--The deposit for a database 
     shall consist of one complete copy of the databse and a 
     Statement of Deposit.
       ``(1) Statement of Deposit.--The Statement of Deposit shall 
     be made on a form prescribed by the Register of Copyrights 
     and shall include--
       ``(A) the name and address of the person claiming 
     protection under section 1302;
       ``(B) a title or other information identifying the 
     database;
       ``(C) a general statement of the nature of the investment 
     qualifying the database for protection;
       ``(D) the year in which the database was first offered for 
     sale or otherwise in commerce;
       ``(E) in the case of a new version or update of a database, 
     an identification of any preexisting database that it is 
     based on or incorporates, and a general statement of any 
     additional investment covered by the new deposit; and
       ``(G) any other information regarded by the Register of 
     Copyrights as bearing on the identification of the database 
     or the application of section 1310(c).
       ``(2) Supplementary statement of deposit.--A depositor or 
     its successor in interest may file a supplementary Statement 
     of Deposit, to correct errors or omissions in a prior 
     Statement of Deposit for the same database, or to reflect 
     changed circumstances.
       ``(d) Fees.--The Register of Copyrights is authorized to 
     set and adjust fees to cover the reasonable costs of the 
     deposit system for databases established by this section.
       ``(e) Effect of Material False Statements.--Any material 
     false statement knowingly made in a Statement of Deposit 
     shall void the deposit of the database.
       ``(f) Issuance of Certificate and Date of Deposit.--
       ``(1) The Register of Copyrights shall, upon receipt of the 
     deposit copy, Statment of Deposit, and fee specified by this 
     section, issue to the person claiming protection under 
     section 1302 a certificate of deposit.
       ``(2) The effective date of deposit for a database is the 
     day on which the deposit copy, Statement of Deposit, and fee 
     have all been received in the Copyright Office.
       ``(g) Inspection and Copying of Records.--
       ``(1) Statements of deposit.--A record of all Statements of 
     Deposit for database deposited with the Copyright Office 
     shall be maintained in the Copyright Office and shall be 
     available to the public for inspection and copying.
       ``(2) Deposit copies.--
       ``(A) During the fifteen years following the end of the 
     calendar year of the date specified in the deposit statement 
     as the date of the first offering in commerce after the 
     qualifying investment, the Copyright Office shall permit 
     access to the deposit copy of the database only upon 
     authorization of the depositor or its successor in interest, 
     or the purposes of litigation under this chapter in 
     accordance with regulations issued by the Register.
       ``(B) Fifteen years from the end of the calendar year of 
     the date specified in the deposit statement as the date of 
     the first offering in commerce after the qualifying 
     investment, the Copyright Office shall make the deposit copy 
     of the database available to the public for inspection and 
     copying subject to the conditions established by the Register 
     under subsection. (C).
       ``(C) The Register shall by regulation specify conditions 
     for access under subsections (A) and (B) to the copies of 
     databases deposited with the Copyright Office, including 
     measures to safeguard any copyrights, trade secrets, or other 
     legal rights of the depositor or its successor in interest.
       ``(3) Exclusion.--Deposit copies deposited with the 
     Copyright Office pursuant to this section are not subject to 
     the provisions of the Freedom of Information Act, 5 U.S.C. 
     Sec. 552.
       ``(h) Effective Date.--This section and section 1310(d) 
     shall take effect one year from the date of the enactment of 
     this Act.''

     SEC. 4. STUDY REGARDING THE EFFECT OF THE ACT.

       (A) In General.--Not later than 5 years after the effective 
     date of this Act, and every 10 years thereafter, the General 
     Accounting Office, in consultation with the Register of 
     Copyrights and the Department of Justice, shall submit to the 
     Committees on the Judiciary of the Senate and the House of 
     Representatives, a report evaluating the effect of this Act.
       (b) Elements for Consideration.--The study conducted under 
     subsection (a) shall consider--
       (1) The extent to which the ability of persons to engage in 
     the permitted acts under this Act has been frustrated by 
     contractual arrangements or technological measures,
       (2) the extent to which information contained in databases 
     that are the sole source of the information contained therein 
     is made available through licensing or sale on reasonable 
     terms and conditions;
       (3) the extent to which the license or sale of information 
     contained in databases protected under this Act has been 
     conditioned on the acquisition or license of any other 
     product or service, or on the performance of any action, not 
     directly related to the license or sale;
       (4) the extent to which the judicially-developed doctrines 
     of misuse in other areas of the law have been extended to 
     cases involving protection of databases under this Act;
       (5) the extent, if any, to which the provisions of this Act 
     constitute a barrier to entry, or have encouraged entry into, 
     a relevant database market;
       (6) the extent to which claims have been made that this Act 
     prevented access to valuable information for research, 
     competition or innovation purposes and an evaluation of these 
     claims;
       (7) the extent to which enactment of this Act resulted in 
     the creation of databases that otherwise would not exist; and
       (8) such other matters necessary to accomplish the purpose 
     of the report.

     SEC. 5. CONFORMING AMENDMENT.

       The table of chapters for title 17, United States Code, is 
     amended by adding at the end the following:

``13 Misappropriation of Databases..........................1301''.....

     SEC. 6. CONFORMING AMENDMENTS TO TITLE 28, UNITED STATES 
                   CODE.

       (a) District Court Jurisdiction.--Section 1338 of title 28; 
     United States Code, is amended--
       (1) in the section heading by inserting ``misappropriations 
     of databases,'' after ``trade-marks,''; and
       (2) by adding at the end the following:
       ``(d) The district courts shall have original jurisdiction 
     of any civil action arising under chapter 13 of title 17, 
     relating to misappropriation of databases. Such jurisdiction 
     shall be exclusive of the courts of the States, except that 
     any action against a State governmental entity may be brought 
     in any court that has jurisdiction over claims against such 
     entity.''
       (b) Conforming Amendment.--The item relating to section 
     1338 in the table of sections for chapter 85 of title 28, 
     United States Code, is amended by inserting 
     ``misappropriations of database,'' after ``trade-marks,''.
       (c) Court of Federal Claims Jurisdiction.--Section 1498(e) 
     of title 28, United States Code, is amended by inserting 
     ``and to protections afforded databases under chapter 13 of 
     title 17'' after ``chapter 9 of title 17''.

     SEC. 7. EFFECTIVE DATE.

       (a) In General.--This Act and the amendments made by this 
     Act shall take effect on the date of the enactment of this 
     Act, and shall apply to acts committed on or after that date.
       (b) Prior Acts Not Affected.--No person shall be liable 
     under chapter 13 of title 17, United States Code, as added by 
     section 2 of this Act, for the extraction or use of all or a 
     substantial part of a collection of information for which the 
     investment of resources which qualified the collection of 
     information for protection under this chapter occurred prior 
     to the effective date of this Act.

     

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