[Congressional Record (Bound Edition), Volume 154 (2008), Part 5]
[Senate]
[Pages 6872-6877]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. CASEY (for himself and Ms. Stabenow):
  S. 2906. A bill to require a report on invasive agricultural pests 
and diseases and sanitary and phytosanitary barriers to trade before 
initiating negotiations to enter into a free trade agreement, and for 
other purposes; to the Committee on Finance.
  Mr. CASEY. Mr. President, I rise today to introduce the Agriculture 
Smart Trade Act along with my colleague Senator Stabenow. The goal of 
this legislation is to ensure that, as we consider the various free 
trade agreements that come before the Senate, we are taking a look at 
the big picture, including the increased risk of accidently importing 
invasive pests or diseases and the ability for American agricultural 
producers to access new export markets once trade agreements are in 
effect. Our bill is supported by United Fresh, the national association 
of fruit and vegetable growers and processors, and the U.S. Apple 
Association.
  The bill has two main components. First, it requires the 
Administration to send a report to Congress prior to the start of 
formal trade negotiations with a foreign nation detailing potential 
invasive pests and disease that could pose a risk to U.S. agriculture. 
Furthermore, this report must identify what additional agricultural 
inspectors and other personnel are needed to prevent these pests and 
diseases from being brought into the United States.
  Second, the bill requires the Administration to disclose in the same 
report all sanitary and photosanitary, or SPS, trade barriers that 
could unduly restrict export markets for American commodities. What 
we've seen in the past is that a trading partner will raise SPS 
barriers to prevent American products from entering their country. Some 
of these SPS barriers are not grounded in science are simply non-tariff 
trade barriers. As the Administration begins negotiations for a trade 
agreement, we all need to take a look at what kinds of SPS issues we 
have with potential trading partners. Are their SPS concerns based in 
science? We need to be sure that once an agreement is in effect, we 
will have access to those foreign markets as stipulated in the trade 
agreement.
  I want to make clear that this bill does not in any way limit the 
President's authority to negotiate trade agreements under Fast-Track, 
nor does it prevent trade legislation from being considered by the 
Congress. What this bill does is provide the Senate and the House of 
Representatives with a more complete picture of what potential trade 
agreements involve beyond the obvious import and export quotas.
  Regardless of how any senator feels about the free trade agreements 
that we review and debate, I think all of my colleagues will agree with 
me that increased international trade means an increased risk of 
importing bugs and diseases that have the potential to devastate our 
food sources, jeopardize the livelihoods of our farmers, and cost our 
states a fortune. We need to acknowledge the risk and put in place the 
best safeguards we can to prevent the accidental introduction of these 
harmful pests.
  I am not merely speculating about the risk of invasive pests and 
disease. It is a fact that all of our States are battling insects and 
crop diseases and dreading the next outbreak. Most recently in 
Pennsylvania we discovered that the western part of our state is 
infested with the Emerald Ash Borer, an invasive beetle that was 
accidently imported to the U.S. through Detroit via wooden shipping 
pallets from China. This beetle is costing our commercial nursery 
growers millions of dollars in lost stock. Senator Stabenow knows 
better than anyone how much money, time and other resources the Ash 
Borer has cost the States of Michigan, Illinois, Indiana, Ohio, and 
Pennsylvania. But that's just one example. Orange growers in Florida 
have spent the past decade fighting to contain and eradicate citrus 
canker, an invasive disease that causes citrus trees to produce less 
and less fruit until they prematurely die. And California and Texas 
have dealt with expensive eradication programs to deal with the 
Mediterranean fruit fly or ``Med fly.''
  The list goes on and on. And there isn't a single State that has not 
been impacted by invasive pests or diseases. So I hope that my 
colleagues will support the Agriculture Smart Trade Act, and help us 
make smart decisions that will protect our growers and our economy 
while opening new export markets. Because that is what this bill is 
about--smart trade.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record following my remarks.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2906

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Agriculture Smart Trade 
     Act''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Free trade agreement.--The term ``free trade 
     agreement'' means a trade agreement entered into with a 
     foreign country that provides for--
       (A) the reduction or elimination of duties, import 
     restrictions, or other barriers to or distortions of trade 
     between the United States and the foreign country; or
       (B) the prohibition of or limitation on the imposition of 
     such barriers or distortions.
       (2) Invasive agricultural pests and diseases.--The term 
     ``invasive agricultural pests and diseases'' means 
     agricultural pests and diseases, as determined by the 
     Secretary of Agriculture--
       (A) that are not native to ecosystems in the United States; 
     and
       (B) the introduction of which causes or is likely to cause 
     economic or environmental harm or harm to human health.
       (3) Sanitary and phytosanitary measure.--The term 
     ``sanitary and phytosanitary measure'' has the meaning given 
     that term in the Agreement on the Application of Sanitary and 
     Phytosanitary Measures of the World Trade Organization 
     referred to in section 101(d)(3) of the Uruguay Round 
     Agreements Act (19 U.S.C. 3511(d)(3)).

     SEC. 3. REQUIREMENT FOR REPORTS BEFORE INITIATING 
                   NEGOTIATIONS TO ENTER INTO FREE TRADE 
                   AGREEMENTS.

       (a) In General.--Not later than 90 days before the date on 
     which the President initiates formal negotiations with a 
     foreign country to enter into a free trade agreement with 
     that country, the President shall submit to Congress a report 
     on--
       (1) invasive agricultural pests or diseases in that 
     country; and

[[Page 6873]]

       (2) sanitary or phytosanitary measures imposed by the 
     government of that country on goods imported into that 
     country.
       (b) Contents of Report.--The report required under 
     subsection (a) shall include the following:
       (1) Invasive agricultural pests and diseases.--With respect 
     to any invasive agricultural pests or diseases in the country 
     with which the President intends to negotiate a free trade 
     agreement--
       (A) a list of all invasive agricultural pests and diseases 
     in that country;
       (B) a list of agricultural commodities produced in the 
     United States that might be affected by the introduction of 
     such pests or diseases into the United States; and
       (C) a plan for preventing the introduction into the United 
     States of such pests and diseases, including an estimate of--
       (i) the number of additional inspectors, officials, and 
     other personnel necessary to prevent such introduction and 
     the ports of entry at which the additional inspectors, 
     officials, and other personnel will be needed; and
       (ii) the total cost of preventing such introduction.
       (2) Sanitary and phytosanitary measures.--With respect to 
     sanitary or phytosanitary measures imposed by the government 
     of the country with which the President intends to negotiate 
     a free trade agreement on goods imported into that country--
       (A) a list of any such sanitary and phytosanitary measures 
     that may affect the exportation of agricultural commodities 
     from the United States to that country;
       (B) an assessment of the status of any petitions filed by 
     the United States with the government of that country 
     requesting that that country allow the importation into that 
     country of agricultural commodities produced in the United 
     States;
       (C) an estimate of the economic potential for the 
     exportation of agricultural commodities produced in the 
     United States to that country if the free trade agreement 
     enters into force; and
       (D) an assessment of the effect of sanitary and 
     phytosanitary measures imposed or proposed to be imposed by 
     the government of that country on the economic potential 
     described in subparagraph (C).
                                 ______
                                 
      By Ms. SNOWE (for herself and Mr. Brown):
  S. 2910. A bill to require brokers to disclose and pay independent 
truckers for any fuel surcharges received from shippers that relate to 
fuel costs paid for by the truckers; to the Committee on Commerce, 
Science, and Transportation.
  Ms. SNOWE. Mr. President, I rise to introduce legislation that I 
believe is vital to the survival and competitiveness of our nation's 
trucking industry. For too long, our small business motor freight 
carriers, who struggle every day to make ends meet, have had their 
concerns ignored and neglected. Today, as the entire trucking industry 
faces monumental economic challenges spurred by skyrocketing, record-
breaking oil prices and exorbitant and volatile fuel costs, not to 
mention a detrimental slow-down in the hiring of new drivers, our 
independent operators are having to contend with a devastating economic 
downturn and enduring business failures--the likes of which this 
country has not seen since 2000.
  During the first quarter of 2008, nearly one thousand motor carriers 
failed, and they were not just trucking companies with two or three 
trucks, but the average number of vehicles numbered 45 trucks! As you 
can imagine, the financial impact is enormous, especially given that 
the Bureau of Transportation Statistics projects freight to grow by 
more than 70 percent by 2020. Forestalling action is not an option if 
we are to sustain our trucking industry which is an undeniable, 
economic lifeline of this nation.
  That is why I have taken this opportunity to join with Senator Brown 
in introducing the Trust in Reliable Understanding of Consumer Costs 
(TRUCC) Act which would provide our small business operators and 
carriers with the long-denied fairness that is owed to them. It is time 
that these hard-working men and women free from stranglehold of 
unscrupulous brokers and middle-men who charge shippers for fuel costs, 
but refuse to pass on those costs to operators who actually pay for the 
fuel. Our bill would provide not only a clear line-item delineating the 
fuel surcharge in the contracts provided to our small business 
carriers, but also would guarantee that the entity in the transaction--
whether a shipper, broker, or driver--who absorbs the consistently-
rising cost of fuel will become the recipient of the fuel surcharge.
  To our measure's detractors who mischaracterize it, calling it among 
other things--outrageous, I want to remind them that our focus is on 
small business motor carriers which comprise more than 90 percent of 
the truck industry, and that these individuals continue to traverse the 
country, carrying consumer goods and propelling our economy forward in 
the process. And they do so, despite the constant challenges that are 
part and parcel of this occupation . . . brokers who obfuscate the 
amount or even existence of fuel surcharges to the benefit of their own 
coffers, the escalation of fuel prices, maintenance costs for their 
vehicles, the long days or weeks of travel--sacrificing time away from 
their families in order to make a living, feed their families, and 
finance the education of their children. And so, Mr. President, I ask, 
how can we afford to turn a blind eye to the plight of these Americans 
whose livelihood is so integral to commerce in the great country? 
Merely wishing the problem away or simply keeping it out of sight and 
out of mind is neither tenable nor acceptable.
  Make no mistake, not all brokers are bad actors, nor are all small 
business operators being exploited. That is precisely why the 
legislation Senator Brown and I are offering today does not place 
onerous burdens on the logistics industry. We merely seek to ensure 
that an industry under siege on several fronts receives what its 
purveyors are rightfully entitled to--equitable treatment and a modicum 
of transparency. Is it too much to ask that they may see for themselves 
in a transaction who, if anyone, is receiving a fuel surcharge, and how 
much is being paid out for the cost of fuel? Is it too much to ask for 
an assurance that, if the motor carrier is willing to pay the high cost 
of fuel at the pump while transporting goods across this nation, that 
carrier will be reimbursed? The answer to both questions is a 
resounding, ``No!'' The solution to addressing this regrettable 
situation is our common-sense legislation the consideration of which is 
long overdue.
  I urge all my colleagues who have small business motor carriers in 
their state to consider seriously this issue and lend their strong 
support to this welcomed legislation.
                                 ______
                                 
      By Ms. MURKOWSKI (for herself and Mrs. Murray):
  S. 2911. A bill to improve vaccination rates among children; to the 
Committee on Health, Education, Labor, and Pensions.
  Ms. MURKOWSKI. Mr. President, today, I join with my colleague Senator 
Murray in introducing legislation that will help bolster childhood 
immunization in those parts of our country where immunization rates are 
much too low. Since the beginning of the 20th century, vaccines have 
completely eradicated the once frequent killer smallpox and almost 
eradicated polio. Vaccines save lives, avert communicable diseases and 
reduce health care spending for preventable diseases. We must continue 
in our efforts to achieve childhood immunization rates of 90 percent by 
2010 and with passage of this bill, we can do just that.
  Vaccines are one of the most effective tools for prevention of 
disease. According to the Centers for Disease Control and Prevention, 
for every $1 spent on vaccines, America saves $18.60 in both medical 
costs and societal costs. But more important than the cost saving is 
the weight and value we must place on ensuring that children are fully 
vaccinated. We must not lose one more child to a vaccine preventable 
disease. Childhood vaccines prevent over 10 million cases of infectious 
illness and nearly 34,000 childhood deaths in America every year. 
Clearly, vaccines are a tried and true way to not only reduce health 
care costs, but also to keep our children healthy.
  The legislation Senator Murray and I are introducing today authorizes 
funding for effective interventions recommended by the Task Force on 
Community Preventive Services and helps to achieve childhood 
immunization rates of 90 percent by 2010. First, the

[[Page 6874]]

legislation authorizes additional funding for a demonstration program 
allowing Women, Infant and Children clinics, also known as ``WIC'' to 
play a greater role in childhood immunizations. This is achieved by 
recommending vaccines to WIC recipients, coordinating care or 
immunization services, or employing an immunization coordinator. More 
than 45 percent of U.S. infants receive benefits through WIC clinics. A 
2002 study by the National Foundation for Infectious Diseases 
recommended coordinating government benefits to keep children up-to-
date with their immunizations and noted that WIC programs have 
successfully accomplished this in numerous communities. Our legislation 
would enhance such efforts and would even go a step further to require 
that any grantee using these funds have access to the State 
Immunization Information System to better coordinate immunization 
screenings and services.
  Second, this legislation authorizes additional funding for the 
Centers for Disease Control and Prevention to conduct public, age 
appropriate immunization awareness campaigns and immunization education 
and outreach activities. Research shows that outreach, coupled with the 
coordination of immunization and WIC clinics, can increase childhood 
immunization rates by of approximately 12 percent.
  Lastly, this legislation establishes a sense of the Senate concerning 
the importance of electronic record coordination by both the Secretary 
of Health and Human Services and the Director of the Centers for 
Disease Control and Prevention, CDC, and that these leaders should work 
together to improve the integration of immunization information systems 
with electronic medical records, health information systems, and health 
information exchanges.
  Vaccine preventable diseases will continue to be a threat to our 
Nation's most vulnerable population if we do not ensure proper 
vaccination among infants. Through this legislation, we can work to 
achieve the Healthy People 2010 objective of vaccinating 90 percent of 
all children by age two. To take a quote from a former First Lady of 
the United States and a cofounder of the organization Every Child by 
Two ``No child in America should have to get sick from a vaccine 
preventable disease. It's time for us to redouble efforts to protect 
the 20 percent of preschoolers who are routinely not being immunized on 
time.'' The Infant Immunization Improvement Act will be a vital first 
step to increasing vaccination rates and will serve as an important 
safeguard against the spread of communicable diseases. I would like to 
thank the Partnership for Prevention for their input on this 
legislation and the 156 members of the 317 Coalition for endorsing the 
Infant Immunization Improvement Act. I urge my colleagues to cosponsor 
this legislation--because leaving a single child unprotected is one too 
many.
                                 ______
                                 
      By Mr. LEAHY (for himself and Mr. Hatch):
  S. 2913. A bill to provide a limitation on judicial remedies in 
copyright infringement cases involving orphan works; to the Committee 
on the Judiciary.
  Mr. LEAHY. Mr. President, today, I join once again with Senator Hatch 
to introduce a bill that will have a significant and positive impact on 
our cultural heritage. Hundreds of thousands of so-called ``orphan 
works''--works that may be protected by copyright, but whose owners 
cannot be identified or located--are collecting dust. Despite 
tremendous interest in using these orphan works in new collections and 
new creations, they often languish unseen, because those who would like 
to bring them to light, and to the attention of the world, fear the 
prospect of prohibitively expensive statutory damages. In other 
instances, the copyright in an orphan work may have expired, but 
potential users lack the information to be certain of the propriety of 
going forward with its use.
  The Shawn Bentley Orphan Works Act of 2008 will remedy this 
situation. It will help potential users of orphan works find the owners 
of those works, and it will help the owners to receive compensation. 
The works will no longer be orphans; their owners will reap the 
financial benefits of their use, while the public reaps the creative 
benefits. More creative works will be used, contributing to our 
cultural and artistic heritage, and more creators will receive 
compensation for use of their work.
  Our legislation permits the use of an orphan work only if the 
potential user performs and documents a good faith search for the 
copyright owner. If users cannot locate and contact copyright owners, 
they may use the orphan work. But if copyright owners later make 
themselves known, and if users have performed a search that qualifies 
under this legislation, owners are entitled to reasonable compensation. 
The user will not be liable for full statutory damages in those 
circumstances, but if a user does not perform that good faith search, 
the user will face up to $150,000 in statutory damages.
  In practical terms, then, what does this mean? It means that a woman 
in Vermont can restore a wedding photograph of her grandparents, even 
if she cannot locate the photographer to get permission to do so. It 
means that a library can display letters of American soldiers wrote 
during World War II, even if the library cannot contact the soldiers or 
their descendents. It means that museums can exhibit Depression-era 
photographs, even if they cannot determine the name of the 
photographer.
  What this bill does not do is create a ``license to infringe.'' In 
any of the above instances, if the users do not conduct a good faith 
search for the copyright owner, those users are in the same boat they 
are in now when it comes to infringement. This bill does not change the 
basic premise of copyright law: If you use the copyrighted works of 
others, you must compensate them for it. As an avid photographer, I 
understand what it means to devote oneself to creative expression, and 
I applaud anyone with the talent and commitment to make a living doing 
so. Orphan works are too important to our families, our communities, 
and our culture to go left unseen and unused.
  I thank Senator Hatch for his help in developing this legislation, 
and I look forward to working with him to ensure that this bill becomes 
law. I am especially pleased to name this bill for Shawn Bentley. 
Several years ago, Shawn died, tragically young, but he left behind a 
legacy of affection and regard for all of us who knew him. He served 
Senator Hatch as a counsel for intellectual property, and it was he who 
first inspired this effort on orphan works. Naming this bill for him is 
a testament to his dedication to the issue, and his value to the 
Judiciary Committee.
  I ask unanimous consent that the full bill text be included in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2913

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Shawn Bentley Orphan Works 
     Act of 2008''.

     SEC. 2. LIMITATION ON REMEDIES IN CASES INVOLVING ORPHAN 
                   WORKS.

       (a) Limitation on Remedies.--Chapter 5 of title 17, United 
     States Code, is amended by adding at the end the following:

     ``Sec. 514. Limitation on remedies in cases involving orphan 
       works

       ``(a) Definitions.--In this section, the following 
     definitions shall apply:
       ``(1) Materials and standards.--The term `materials and 
     standards' includes--
       ``(A) the records of the Copyright Office that are relevant 
     to identifying and locating copyright owners;
       ``(B) sources of copyright ownership information reasonably 
     available to users, including private databases;
       ``(C) industry practices and guidelines of associations and 
     organizations;
       ``(D) technology tools and expert assistance, including 
     resources for which a charge or subscription fee is imposed, 
     to the extent that the use of such resources is reasonable 
     for, and relevant to, the scope of the intended use; and
       ``(E) electronic databases, including databases that are 
     available to the public through the Internet, that allow for 
     searches of copyrighted works and for the copyright owners of 
     works, including through text, sound, and image recognition 
     tools.

[[Page 6875]]

       ``(2) Notice of claim for infringement.--The term `notice 
     of the claim for infringement' means, with respect to a claim 
     for copyright infringement, a written notice that includes at 
     a minimum the following:
       ``(A) The name of the owner of the infringed copyright.
       ``(B) The title of the infringed work, any alternative 
     titles of the infringed work known to the owner of the 
     infringed copyright, or if the work has no title, a 
     description in detail sufficient to identify it.
       ``(C) An address and telephone number at which the owner of 
     the infringed copyright may be contacted.
       ``(D) Information from which a reasonable person could 
     conclude that the owner of the infringed copyright's claims 
     of ownership and infringement are valid.
       ``(3) Owner of the infringed copyright.--The `owner of the 
     infringed copyright' is the legal owner of the exclusive 
     right under section 106, or any party with the authority to 
     grant or license such right, that is applicable to the 
     infringement.
       ``(4) Reasonable compensation.--The term `reasonable 
     compensation' means, with respect to a claim for 
     infringement, the amount on which a willing buyer and willing 
     seller in the positions of the infringer and the owner of the 
     infringed copyright would have agreed with respect to the 
     infringing use of the work immediately before the 
     infringement began.
       ``(b) Conditions for Eligibility.--
       ``(1) Conditions.--
       ``(A) In general.--Notwithstanding sections 502 through 
     505, and subject to subparagraph (B), in a civil action 
     brought under this title for infringement of copyright in a 
     work, the remedies for infringement shall be limited in 
     accordance with subsection (c) if the infringer--
       ``(i) proves by a preponderance of the evidence that before 
     the infringement began, the infringer, a person acting on 
     behalf of the infringer, or any person jointly and severally 
     liable with the infringer for the infringement--

       ``(I) performed and documented a qualifying search, in good 
     faith, for the owner of the infringed copyright; and
       ``(II) was unable to locate the owner of the infringed 
     copyright;

       ``(ii) provided attribution, in a manner that is reasonable 
     under the circumstances, to the owner of the infringed 
     copyright, if such owner was known with a reasonable degree 
     of certainty, based on information obtained in performing the 
     qualifying search;
       ``(iii) included with the use of the infringing work a 
     symbol or other notice of the use of the infringing work, in 
     a manner prescribed by the Register of Copyrights;
       ``(iv) asserts in the initial pleading to the civil action 
     the right to claim such limitations;
       ``(v) consents to the jurisdiction of United States 
     district court, or such court holds that the infringer is 
     within the jurisdiction of the court; and
       ``(vi) at the time of making the initial discovery 
     disclosures required under Rule 26 of the Federal Rules of 
     Civil Procedure, states with particularity the basis for the 
     right to claim the limitations, including a detailed 
     description and documentation of the search undertaken in 
     accordance with paragraph (2)(A).
       ``(B) Exception.--Subparagraph (A) does not apply if, after 
     receiving notice of the claim for infringement and having an 
     opportunity to conduct an expeditious good faith 
     investigation of the claim, the infringer--
       ``(i) fails to negotiate reasonable compensation in good 
     faith with the owner of the infringed copyright; or
       ``(ii) fails to render payment of reasonable compensation 
     in a reasonably timely manner.
       ``(2) Requirements for searches.--
       ``(A) Requirements for qualifying searches.--
       ``(i) In general.--For purposes of paragraph (1)(A)(i)(I), 
     a search is qualifying if the infringer undertakes a diligent 
     effort to locate the owner of the infringed copyright.
       ``(ii) Determination of diligent effort.--In determining 
     whether a search is diligent under this subparagraph, a court 
     shall consider whether--

       ``(I) the actions taken in performing that search are 
     reasonable and appropriate under the facts relevant to that 
     search, including whether the infringer took actions based on 
     facts uncovered by the search itself;
       ``(II) the infringer employed the applicable best practices 
     maintained by the Register of Copyrights under subparagraph 
     (B); and
       ``(III) the infringer performed the search before using the 
     work and at a time that was reasonably proximate to the 
     commencement of the infringement.

       ``(iii) Lack of identifying information.--The fact that a 
     particular copy or phonorecord lacks identifying information 
     pertaining to the owner of the infringed copyright is not 
     sufficient to meet the conditions under paragraph 
     (1)(A)(i)(I).
       ``(B) Information to guide searches; best practices.--
       ``(i) Statements of best practices.--The Register of 
     Copyrights shall maintain and make available to the public, 
     including through the Internet, current statements of best 
     practices for conducting and documenting a search under this 
     subsection.
       ``(ii) Consideration of relevant materials and standards.--
     In maintaining the statements of best practices required 
     under clause (i), the Register of Copyrights shall, from time 
     to time, consider materials and standards that may be 
     relevant to the requirements for a qualifying search under 
     subparagraph (A).
       ``(3) Penalty for failure to comply.--If an infringer fails 
     to comply with any requirement under this subsection, the 
     infringer is subject to all the remedies provided in section 
     502 through 505, subject to section 412.
       ``(c) Limitations on Remedies.--The limitations on remedies 
     in a civil action for infringement of a copyright to which 
     this section applies are the following:
       ``(1) Monetary relief.--
       ``(A) General rule.--Subject to subparagraph (B), an award 
     for monetary relief (including actual damages, statutory 
     damages, costs, and attorney's fees) may not be made other 
     than an order requiring the infringer to pay reasonable 
     compensation to the legal or beneficial owner of the 
     exclusive right under the infringed copyright for the use of 
     the infringed work.
       ``(B) Further limitations.--An order requiring the 
     infringer to pay reasonable compensation for the use of the 
     infringed work may not be made under subparagraph (A) if the 
     infringer is a nonprofit educational institution, museum, 
     library, or archives, or a public broadcasting entity (as 
     defined in subsection (f) of section 118) and the infringer 
     proves by a preponderance of the evidence that--
       ``(i) the infringement was performed without any purpose of 
     direct or indirect commercial advantage;
       ``(ii) the infringement was primarily educational, 
     religious, or charitable in nature; and
       ``(iii) after receiving notice of the claim for 
     infringement, and after conducting an expeditious good faith 
     investigation of the claim, the infringer promptly ceased the 
     infringement.
       ``(C) Exception to further limitation.--Notwithstanding the 
     limitation established under subparagraph (B), if the owner 
     of an infringed copyright proves, and a court finds, that the 
     infringer has earned proceeds directly attributable to the 
     use of the infringed work by the infringer, the portion of 
     such proceeds attributable to such infringement may be 
     awarded to the owner.
       ``(2) Injunctive relief.--
       ``(A) General rule.--Subject to subparagraph (B), the court 
     may impose injunctive relief to prevent or restrain any 
     infringement alleged in the civil action.
       ``(B) Exception.--In a case in which the infringer has 
     prepared or commenced preparation of a work that recasts, 
     transforms, adapts, or integrates the infringed work with a 
     significant amount of the infringer's original expression, 
     any injunctive relief ordered by the court--
       ``(i) may not restrain the infringer's continued 
     preparation or use of that new work;
       ``(ii) shall require that the infringer pay reasonable 
     compensation to the legal or beneficial owner of the 
     exclusive right under the infringed copyright for the use of 
     the infringed work; and
       ``(iii) shall require that the infringer provide 
     attribution, in a manner that is reasonable under the 
     circumstances, to the owner of the infringed copyright, if 
     requested by such owner.
       ``(C) Limitations.--The limitations on injunctive relief 
     under subparagraphs (A) and (B) shall not be available to an 
     infringer if the infringer asserts in the civil action that 
     neither the infringer or any representative of the infringer 
     acting in an official capacity is subject to suit in the 
     courts of the United States for an award of damages to the 
     legal or beneficial owner of the exclusive right under the 
     infringed copyright under section 106, unless the court finds 
     that the infringer--
       ``(i) has complied with the requirements of subsection (b); 
     and
       ``(ii) has made an enforceable promise to pay reasonable 
     compensation to the legal or beneficial owner of the 
     exclusive right under the infringed copyright.
       ``(D) Rule of construction.--Nothing in subparagraph (C) 
     shall be construed to authorize or require, and no action 
     taken under such subparagraph shall be deemed to constitute, 
     either an award of damages by the court against the infringer 
     or an authorization to sue a State.
       ``(E) Rights and privileges not waived.--No action taken by 
     an infringer under subparagraph (C) shall be deemed to waive 
     any right or privilege that, as a matter of law, protects the 
     infringer from being subject to suit in the courts of the 
     United States for an award of damages to the legal or 
     beneficial owner of the exclusive right under the infringed 
     copyright under section 106.
       ``(d) Preservation of Other Rights, Limitations, and 
     Defenses.--This section does not affect any right, 
     limitation, or defense to copyright infringement, including 
     fair use, under this title. If another provision of this 
     title provides for a statutory license that would permit the 
     infringement contemplated by the infringer if the owner of 
     the infringed copyright cannot be located, that provision 
     applies instead of this section.

[[Page 6876]]

       ``(e) Copyright for Derivative Works and Compilations.--
     Notwithstanding section 103(a), an infringer who qualifies 
     for the limitation on remedies afforded by this section with 
     respect to the use of a copyrighted work shall not be denied 
     copyright protection in a compilation or derivative work on 
     the basis that such compilation or derivative work employs 
     preexisting material that has been used unlawfully under this 
     section.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 5 of title 17, United States Code, is 
     amended by adding at the end the following:

``514. Limitation on remedies in cases involving orphan works.''.

     SEC. 3. DATABASE OF PICTORIAL, GRAPHIC, AND SCULPTURAL WORKS.

       (a) Establishment of Database.--
       (1) In general.--The Register of Copyrights shall undertake 
     a certification process for the establishment of an 
     electronic database that facilitates the search for 
     pictorial, graphic, and sculptural works that are subject to 
     copyright protection under title 17, United States Code.
       (2) Process and standards for certification.--The process 
     and standards for certification of the electronic database 
     required under paragraph (1) shall be established by the 
     Register of Copyrights, except that certification may not be 
     granted if the electronic database does not contain--
       (A) the name of all authors of the work, if known, and 
     contact information for any author if the information is 
     readily available;
       (B) the name of the copyright owner if different from the 
     author, and contact information of the copyright owner;
       (C) the title of the copyrighted work, if such work has a 
     title;
       (D) with respect to a copyrighted work that includes a 
     visual image, a visual image of the work, or, if such a 
     visual image is not available, a description sufficient to 
     identify the work;
       (E) one or more mechanisms that allow for the search and 
     identification of a work by both text and image; and
       (F) security measures that reasonably protect against 
     unauthorized access to, or copying of, the information and 
     content of the electronic database.
       (b) Public Availability.--The Register of Copyrights--
       (1) shall make available to the public through the Internet 
     a list of all electronic databases that are certified in 
     accordance with this section; and
       (2) may include any database so certified in a statement of 
     best practices established under section 514(b)(5)(B) of 
     title 17, United States Code.

     SEC. 4. EFFECTIVE DATE.

       (a) In General.--With respect to works other than 
     pictorial, graphic, and sculptural works, the amendments made 
     by section 2 shall apply to infringements that commence on or 
     after January 1, 2009.
       (b) Pictorial, Graphic, and Sculptural Works.--With respect 
     to pictorial, graphic, and sculptural works, the amendments 
     made by section 2 shall--
       (1) take effect on the earlier of--
       (A) the date on which the Copyright Office certifies under 
     section 3 at least 2 separate and independent searchable, 
     comprehensive, electronic databases, that allow for searches 
     of copyrighted works that are pictorial, graphic, and 
     sculptural works, and are available to the public through the 
     Internet; or
       (B) January 1, 2011; and
       (2) apply to infringing uses that commence on or after that 
     effective date.
       (c) Publication in Federal Register.--The Register of 
     Copyrights shall publish the effective date described in 
     subsection (b)(1) in the Federal Register, together with a 
     notice that the amendments made by section 2 take effect on 
     that date with respect to pictorial, graphic, and sculptural 
     works.
       (d) Definition.--In this section, the term ``pictorial, 
     graphic, and sculptural works'' has the meaning given that 
     term in section 101 of title 17, United States Code.

     SEC. 5. REPORT TO CONGRESS.

       Not later than December 12, 2014, the Register of 
     Copyrights shall report to the Committee on the Judiciary of 
     the Senate and the Committee on the Judiciary of the House of 
     Representatives on the implementation and effects of the 
     amendments made by section 2, including any recommendations 
     for legislative changes that the Register considers 
     appropriate.

     SEC. 6. STUDY ON REMEDIES FOR SMALL COPYRIGHT CLAIMS.

       (a) In General.--The Register of Copyrights shall conduct a 
     study with respect to remedies for copyright infringement 
     claims by an individual copyright owner or a related group of 
     copyright owners seeking small amounts of monetary relief, 
     including consideration of alternative means of resolving 
     disputes currently heard in the United States district 
     courts. The study shall cover the infringement claims to 
     which section 514 of title 17, United States Code, apply, and 
     other infringement claims under such title 17.
       (b) Procedures.--The Register of Copyrights shall publish 
     notice of the study required under subsection (a), providing 
     a period during which interested persons may submit comments 
     on the study, and an opportunity for interested persons to 
     participate in public roundtables on the study. The Register 
     shall hold any such public roundtables at such times as the 
     Register considers appropriate.
       (c) Report to Congress.--Not later than 2 years after the 
     date of the enactment of this Act, the Register of Copyrights 
     shall prepare and submit to the Committee on the Judiciary of 
     the Senate and the Committee on the Judiciary of the House of 
     Representatives a report on the study conducted under this 
     section, including such administrative, regulatory, or 
     legislative recommendations that the Register considers 
     appropriate.

     SEC. 7. STUDY ON COPYRIGHT DEPOSITS.

       (a) In General.--The Comptroller General of the United 
     States shall conduct a study examining the function of the 
     deposit requirement in the copyright registration system 
     under section 408 of title 17, United States Code, 
     including--
       (1) the historical purpose of the deposit requirement;
       (2) the degree to which deposits are made available to the 
     public currently;
       (3) the feasibility of making deposits, particularly visual 
     arts deposits, electronically searchable by the public for 
     the purpose of locating copyright owners; and
       (4) the impact any change in the deposit requirement would 
     have on the collection of the Library of Congress.
       (b) Report.--Not later than 2 years after the date of the 
     enactment of this Act, the Comptroller General shall submit 
     to the Committee on the Judiciary of the House of 
     Representatives and the Committee on the Judiciary of the 
     Senate a report on the study conducted under this section, 
     including such administrative, regulatory, or legislative 
     recommendations that the Comptroller General considers 
     appropriate.
                                 ______
                                 
      By Mr. STEVENS (for himself, Mr. Inouye, Mr. Smith, Mr. Dorgan, 
        Mr. Thune, Mr. Pryor, and Ms. Snowe):
  S. 2919. A bill to promote the accurate transmission of network 
traffic identification information; to the Committee on Commerce, 
Science, and Transportation.
  Mr. STEVENS. Mr. President, to help end the growing problem of 
phantom traffic, today I introduce the ``Signaling Modernization Act of 
2008.'' Senators Inouye, Smith, Dorgan, Thune, Pryor, and Snowe 
cosponsored this bill. Phantom traffic is a phone call sent over the 
telephone network without the identifying information carriers use to 
bill each other.
  When I call home to Alaska, that call is transmitted over several 
different carriers. Phone companies charge each other for the use of 
their networks. The funds generated by these charges are particularly 
important to carriers in Alaska and throughout rural America. Phantom 
traffic prevents carriers from collecting the funds they are owed, 
impacting universal service and raising rates for rural customers.
  It's time Congress pulled back the mask on phantom traffic to 
discover who or what is behind this problem that has plagued carriers 
for several years. The Federal Communications Commission is actively 
analyzing the issue, but it is time we find a solution.
  Yesterday the Commerce Committee heard from a member of the National 
Telecommunications Cooperative Association from rural Missouri. He told 
us that 11 percent of their traffic did not have sufficient information 
for billing, causing them to lose about $37 per line per year. This 
loss of revenue makes it more difficult for rural carriers to deploy 
broadband.
  Our bill will require all calls from voice communications service 
providers to contain enough information to allow carriers to bill each 
other, including voice over internet protocol providers offering 2-way 
service and providers transiting the traffic between originating and 
terminating providers. Our bill also directs the FCC to establish rules 
implementing this requirement within 12 months of enactment, and gives 
it the authority to adopt enforcement provisions. Phantom traffic 
steals from rural carriers and customers. I hope Congress and the FCC 
will look at this issue closely and put an end to phantom traffic.

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