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Digital Millennium Copyright Act

Rep. Howard Coble

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Madam Speaker, I move to suspend the rules and pass the bill (H.R. 2281) to amend title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty, as amended.

The Clerk read as follows:

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

This Act may be cited as the ``Digital Millennium Copyright Act''.

TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

This title may be cited as the ``WIPO Copyright Treaties Implementation Act''.

(a) Definitions.--Section 101 of title 17, United States Code, is amended-- (1) by striking the definition of ``Berne Convention work''; (2) in the definition of ``The `country of origin' of a Berne Convention work''-- (A) by striking ``The `country of origin' of a Berne Convention work, for purposes of section 411, is the United States if'' and inserting ``For purposes of section 411, a work is a `United States work' only if''; (B) in paragraph (1)-- (i) in subparagraph (B) by striking ``nation or nations adhering to the Berne Convention'' and inserting ``treaty party or parties''; (ii) in subparagraph (C) by striking ``does not adhere to the Berne Convention'' and inserting ``is not a treaty party''; and (iii) in subparagraph (D) by striking ``does not adhere to the Berne Convention'' and inserting ``is not a treaty party''; and (C) in the matter following paragraph (3) by striking ``For the purposes of section 411, the `country of origin' of any other Berne Convention work is not the United States.''; (3) by inserting after the definition of ``fixed'' the following: ``The `Geneva Phonograms Convention' is the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, concluded at Geneva, Switzerland, on October 29, 1971.''; (4) by inserting after the definition of ``including'' the following: ``An `international agreement' is-- ``(1) the Universal Copyright Convention; ``(2) the Geneva Phonograms Convention; ``(3) the Berne Convention; ``(4) the WTO Agreement; ``(5) the WIPO Copyright Treaty; ``(6) the WIPO Performances and Phonograms Treaty; and ``(7) any other copyright treaty to which the United States is a party.''; (5) by inserting after the definition of ``transmit'' the following: ``A `treaty party' is a country or intergovernmental organization other than the United States that is a party to an international agreement.''; (6) by inserting after the definition of ``widow'' the following: ``The `WIPO Copyright Treaty' is the WIPO Copyright Treaty concluded at Geneva, Switzerland, on December 20, 1996.''; (7) by inserting after the definition of ``The `WIPO Copyright Treaty' '' the following: ``The `WIPO Performances and Phonograms Treaty' is the WIPO Performances and Phonograms Treaty concluded at Geneva, Switzerland, on December 20, 1996.''; and (8) by inserting after the definition of ``work made for hire'' the following: ``The terms `WTO Agreement' and `WTO member country' have the meanings given those terms in paragraphs (9) and (10), respectively, of section 2 of the Uruguay Round Agreements Act.''. (b) Subject Matter of Copyright; National Origin.--Section 104 of title 17, United States Code, is amended-- (1) in subsection (b)-- (A) in paragraph (1) by striking ``foreign nation that is a party to a copyright treaty to which the United States is also a party'' and inserting ``treaty party''; (B) in paragraph (2) by striking ``party to the Universal Copyright Convention'' and inserting ``treaty party''; (C) by redesignating paragraph (5) as paragraph (6); (D) by redesignating paragraph (3) as paragraph (5) and inserting it after paragraph (4); (E) by inserting after paragraph (2) the following: ``(3) the work is a sound recording that was first fixed in a treaty party; or''; (F) in paragraph (4) by striking ``Berne Convention work'' and inserting ``pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party''; and (G) by inserting after paragraph (6), as so redesignated, the following:

(a) In General.--Title 17, United States Code is amended by adding at the end the following new chapter:

(a) Statement of Congressional Policy and Objective.--It is the sense of the Congress that technological measures that effectively control access to works protected under title 17, United States Code, or that effectively protect a right of a copyright owner under such title play a crucial role in safeguarding the interests of both copyright owners and lawful users of copyrighted works in digital formats, by facilitating lawful uses of such works while protecting the private property interests of holders of rights under title 17, United States Code. Accordingly, the expeditious implementation of such measures, developed by the private sector is a key factor in realizing the full benefits of making available copyrighted works through digital networks, including the benefits set forth in this section. (b) Technological Measures.--The technological measures referred to in subsection (a) shall include, but not be limited to, those which-- (1) enable nonprofit libraries, for nonprofit purposes, to continue to lend to library users copies or phonorecords that such libraries have lawfully acquired, including the lending of such copies or phonorecords in digital formats in a manner that prevents infringement; (2) effectively protect against the infringement of exclusive rights under title 17, United States Code, and facilitate the exercise of those exclusive rights; and (3) promote the development and implementation of diverse methods, mechanisms, and arrangements in the marketplace for making available copyrighted works in digital formats which provide opportunities for individual members of the public to make lawful uses of copyrighted works in digital formats. (c) Procedures for Developing and Implementing Technological Measures.--The technological measures whose development and implementation the Congress anticipates include, but are not limited to, those which-- (1) are developed pursuant to a broad consensus in an open, fair, voluntary, and multi-industry process; (2) are made available on reasonable and nondiscriminatory terms; and (3) do not impose substantial costs or burdens on copyright owners or on manufacturers of hardware or software used in conjunction with copyrighted works in digital formats. (d) Oversight and Reporting.--(1) The Under Secretary of Commerce for Intellectual Property Policy, the Assistant Secretary of Commerce for Communications and Information, and the Register of Copyrights shall jointly review the impact of the enactment of section 1201 of title 17, United States Code, on the access of individual users to copyrighted works in digital formats and shall jointly report annually thereon to the Committees on the Judiciary and on Commerce of the House of Representatives and the Committees on the Judiciary and on Commerce, Science, and Transportation of the Senate. (2) Each report under paragraph (1) shall address the following issues: (A) The status of the development and implementation of technological measures described in this section, including measures that advance the objectives of this section, and the effectiveness of such technological measures in protecting the private property interests of copyright owners under title 17, United States Code. (B) The degree to which individual lawful users of copyrighted works-- (i) have access to the Internet and digital networks generally; (ii) are dependent upon such access for their use of copyrighted works; (iii) have available to them other channels for obtaining and using copyrighted works, other than the Internet and digital networks generally; (iv) are required to pay copyright owners or intermediaries for each lawful use of copyrighted works in digital formats to which they have access; and (v) are able to utilize nonprofit libraries to obtain access, through borrowing without payment by the user, to copyrighted works in digital formats. (C) The degree to which infringement of copyrighted works in digital formats is occurring. (D) Whether and the extent to which section 1201 of title 17, United States Code, is asserted as a basis for liability in claims brought against persons conducting research and development, including reverse engineering of copyrighted works, and the extent to which such claims constitute a serious impediment to the development and production of competitive goods and services. (E) The degree to which individual users of copyrighted materials in digital formats are able effectively to protect themselves against the use of technological measures to carry out or facilitate the undisclosed collection and dissemination of personally identifying information concerning the access to and use of such materials by such users. (F) Such other issues as the Under Secretary of Commerce for Intellectual Property Policy, the Assistant Secretary of Commerce for Communications and Information, and the Register of Copyrights identify as relevant to the impact of the enactment of section 1201 of title 17, United States Code, on the access of individual users to copyrighted works in digital formats. (3) The first report under this subsection shall be submitted not later than one year after the date of the enactment of this Act, and the last such report shall be submitted not later than three years after the date of the enactment of this Act. (4) The reports under this subsection may include such recommendations for additional legislative action as the Under Secretary of Commerce for Intellectual Property Policy, the Assistant Secretary of Commerce for Communications and Information, and the Register of Copyrights consider advisable in order to further the objectives of this section.

(a) Evaluation by Under Secretary of Commerce and Register of Copyrights.--The Under Secretary of Commerce for Intellectual Property Policy, the Assistant Secretary of Commerce for Communications and Information, and the Register of Copyrights shall jointly evaluate-- (1) the effects of the amendments made by this title and the development of electronic commerce and associated technology on the operation of sections 109 and 117 of title 17, United States Code; and (2) the relationship between existing and emergent technology and the operation of sections 109 and 117 of title 17, United States Code. (c) Report to Congress.--The Under Secretary of Commerce for Intellectual Property Policy, the Assistant Secretary of Commerce for Communications and Information, and the Register of Copyrights shall, not later than 24 months after the date of the enactment of this Act, submit to the Congress a joint report on the evaluation conducted under subsection (b), including any legislative recommendations the Under Secretary, the Assistant Secretary, and the Register may have.

TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

This title may be cited as the ``Online Copyright Infringement Liability Limitation Act''.

(a) In General.--Chapter 5 of title 17, United States Code, is amended by adding after section 511 the following new section:

(a) In General.--Chapter 5 of title 17, United States Code, is amended by adding after section 511 the following new section: ``Sec. 512. Limitations on liability relating to material online

shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling

``(1) No liability for taking down generally.--Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing. ``(2) Exception.--Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider-- ``(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material; ``(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and ``(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider's system or network. ``(3) Contents of counter notification.--To be effective under this subsection, a counter notification must be a written communication provided to the service provider's designated agent that includes substantially the following: ``(A) A physical or electronic signature of the subscriber. ``(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. ``(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. ``(D) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. ``(4) Limitation on other liability.--A service provider's compliance with paragraph (2) shall not subject the service provider to liability for copyright infringement with respect to the material identified in the notice provided under subsection (c)(1)(C). ``(g) Subpoena To Identify Infringer.-- ``(1) Request.--A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection. ``(2) Contents of request.--The request may be made by filing with the clerk-- ``(A) a copy of a notification described in subsection (c)(4)(A); ``(B) a proposed subpoena; and ``(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title. ``(3) Contents of subpoena.--The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider. ``(4) Basis for granting subpoena.--If the notification filed satisfies the provisions of subsection (c)(4)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider. ``(5) Actions of service provider receiving subpoena.--Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(4)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification. ``(6) Rules applicable to subpoena.--Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum. ``(h) Conditions for Eligibility.-- ``(1) Accommodation of technology.--The limitations on liability established by this section shall apply to a service provider only if the service provider-- ``(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and ``(B) accommodates and does not interfere with standard technical measures. ``(2) Definition.--As used in this subsection, the term `standard technical measures' means technical measures that are used by copyright owners to identify or protect copyrighted works and-- ``(A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process; ``(B) are available to any person on reasonable and nondiscriminatory terms; and ``(C) do not impose substantial costs on service providers or substantial burdens on their systems or networks. ``(i) Injunctions.--The following rules shall apply in the case of any application for an injunction under section 502 against a service provider that is not subject to monetary remedies under this section: ``(1) Scope of relief.--(A) With respect to conduct other than that which qualifies for the limitation on remedies set forth in subsection (a), the court may grant injunctive relief with respect to a service provider only in one or more of the following forms: ``(i) An order restraining the service provider from providing access to infringing material or activity residing at a particular online site on the provider's system or network. ``(ii) An order restraining the service provider from providing access to a subscriber or account holder of the service provider's system or network who is engaging in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order. ``(iii) Such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted material specified in the order of the court at a particular online location, if such relief is the least burdensome to the service provider among the forms of relief comparably effective for that purpose. ``(B) If the service provider qualifies for the limitation on remedies described in subsection (a), the court may only grant injunctive relief in one or both of the following forms: ``(i) An order restraining the service provider from providing access to a subscriber or account holder of the service provider's system or network who is using the provider's service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order. ``(ii) An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States. ``(2) Considerations.--The court, in considering the relevant criteria for injunctive relief under applicable law, shall consider-- ``(A) whether such an injunction, either alone or in combination with other such injunctions issued against the same service provider under this subsection, would significantly burden either the provider or the operation of the provider's system or network; ``(B) the magnitude of the harm likely to be suffered by the copyright owner in the digital network environment if steps are not taken to prevent or restrain the infringement; ``(C) whether implementation of such an injunction would be technically feasible and effective, and would not interfere with access to noninfringing material at other online locations; and ``(D) whether other less burdensome and comparably effective means of preventing or restraining access to the infringing material are available. ``(3) Notice and ex parte orders.--Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider's communications network. ``(j) Definitions.-- ``(1) Service provider.--(A) As used in subsection (a), the term `service provider' means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received. ``(B) As used in this section, other than subsection (a), the term `service provider' means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A). ``(2) Monetary relief.--As used in this section, the term `monetary relief' means damages, costs, attorneys' fees, and any other form of monetary payment. ``(k) Other Defenses Not Affected.--The failure of a service provider's conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider's conduct is not infringing under this title or any other defense. ``(l) Protection of Privacy.--Nothing in this section shall be construed to condition the applicability of subsections (a) through (d) on-- ``(1) a service provider monitoring its service or affirmatively seeking facts indicating infringing activity, except to the extent consistent with a standard technical measure complying with the provisions of subsection (h); or ``(2) a service provider gaining access to, removing, or disabling access to material in cases in which such conduct is prohibited by law. ``(m) Construction.--Subsections (a), (b), (c), and (d) describe separate and distinct functions for purposes of applying this section. Whether a service provider qualifies for the limitation on liability in any one of those subsections shall be based solely on the criteria in that subsection, and shall not affect a determination of whether that service provider qualifies for the limitations on liability under any other such subsection.''. (b) Conforming Amendment.--The table of sections for chapter 5 of title 17, United States Code, is amended by adding at the end the following:

This title and the amendments made by this title shall take effect on the date of the enactment of this Act. TITLE III--COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

This title may be cited as the ``Computer Maintenance Competition Assurance Act''.

Section 117 of title 17, United States Code, is amended-- (1) by striking ``Notwithstanding'' and inserting the following: ``(a) Making of Additional Copy or Adaptation by Owner of Copy.--Notwithstanding''; (2) by striking ``Any exact'' and inserting the following: ``(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation.--Any exact''; and (3) by adding at the end the following: ``(c) Machine Maintenance or Repair.--Notwithstanding the provisions of section 106, it is not an infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine, if-- ``(1) such new copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed; and ``(2) with respect to any computer program or part thereof that is not necessary for that machine to be activated, such program or part thereof is not accessed or used other than to make such new copy by virtue of the activation of the machine. ``(d) Definitions.--For purposes of this section-- ``(1) the `maintenance' of a machine is the servicing of the machine in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that machine; and ``(2) the `repair' of a machine is the restoring of the machine to the state of working in accordance with its original specifications and any changes to those specifications authorized for that machine.''. TITLE IV--MISCELLANEOUS PROVISIONS Subtitle A--Establishment of the Under Secretary of Commerce for Intellectual Property Policy

(a) Appointment.--There shall be within the Department of Commerce an Under Secretary of Commerce for Intellectual Property Policy, who shall be appointed by the President, by and with the advice and consent of the Senate, at level II of the Executive Schedule. On or after the effective date of this subtitle, the President may designate an individual to serve as the Acting Under Secretary until the date on which an Under Secretary qualifies under this subsection. (b) Duties.--The Under Secretary of Commerce for Intellectual Property Policy, under the direction of the Secretary of Commerce, shall perform the following functions with respect to intellectual property policy: (1) In coordination with the Under Secretary of Commerce for International Trade, promote exports of goods and services of the United States industries that rely on intellectual property. (2) Advise the President, through the Secretary of Commerce, on national and certain international issues relating to intellectual property policy, including issues in the areas of patents, trademarks, and copyrights. (3) Advise Federal departments and agencies on matters of intellectual property protection in other countries. (4) Provide guidance, as appropriate, with respect to proposals by agencies to assist foreign governments and international intergovernmental organizations on matters of intellectual property protection. (5) Conduct programs and studies related to the effectiveness of intellectual property protection throughout the world. (6) Advise the Secretary of Commerce on programs and studies relating to intellectual property policy that are conducted, or authorized to be conducted, cooperatively with foreign patent and trademark offices and international intergovernmental organizations. (7) In coordination with the Department of State, conduct programs and studies cooperatively with foreign intellectual property offices and international intergovernmental organizations. (c) Deputy Under Secretaries.--To assist the Under Secretary of Commerce for Intellectual Property Policy, the Under Secretary shall appoint a Deputy Under Secretary for Patent Policy and a Deputy Under Secretary for Trademark Policy, as members of the Senior Executive Service in accordance with the provisions of title 5, United States Code. The Deputy Under Secretaries shall perform such duties and functions as the Under Secretary shall prescribe. (d) Compensation.--Section 5313 of title 5, United States Code, is amended by adding at the end the following: ``Under Secretary of Commerce for Intellectual Property Policy.'' (e) Funding.--Funds available to the Patent and Trademark Office shall be made available for all expenses of the Office of the Under Secretary of Commerce for Intellectual Property Policy, subject to prior approval in appropriations Acts. Amounts made available under this subsection shall not exceed 2 percent of the projected annual revenues of the Patent and Trademark Office from fees for services and goods of that Office. The Secretary of Commerce shall determine the budget requirements of the Office of the Under Secretary for Intellectual Property Policy. (f) Consultation.--In connection with the performance of his or her duties under this section, the Under Secretary shall, on appropriate matters, consult with the Register of Copyrights.

(a) No Derogation.--Nothing in section 401 shall derogate from the duties of the United States Trade Representative or from the duties of the Secretary of State. In addition, nothing in this subtitle shall derogate from the duties and functions of the Register of Copyrights or otherwise alter current authorities relating to copyright matters. (b) Clarification of Authority of the Copyright Office.-- Section 701 of title 17, United States Code, is amended-- (1) by redesignating subsections (b) through (e) as subsections (c) through (f), respectively; and (2) by inserting after subsection (a) the following: ``(b) In addition to the functions and duties set out elsewhere in this chapter, the Register of Copyrights shall perform the following functions: ``(1) Advise Congress on national and international issues relating to copyright, other matters arising under chapters 9, 12, 13, and 14 of this title, and related matters. ``(2) Provide information and assistance to Federal departments and agencies and the Judiciary on national and international issues relating to copyright, other matters arising under chapters 9, 12, 13, and 14 of this title, and related matters. ``(3) Participate in meetings of international intergovernmental organizations and meetings with foreign government officials relating to copyright, other matters arising under chapters 9, 12, 13, and 14 of this title, and related matters, including as a member of United States delegations as authorized by the appropriate Executive Branch authority. ``(4) Conduct studies and programs regarding copyright, other matters arising under chapters 9, 12, 13, and 14 of this title, and related matters, the administration of the Copyright Office, or any function vested in the Copyright Office by law, including educational programs conducted cooperatively with foreign intellectual property offices and international intergovernmental organizations. ``(5) Perform such other functions as Congress may direct, or as may be appropriate in furtherance of the functions and duties specifically set forth in this title.'' Subtitle B--Related Provisions

Section 112(a) of title 17, United States Code, is amended-- (1) by redesignating paragraphs (1), (2), and (3) as subparagraphs (A), (B), and (C), respectively; (2) by inserting ``(1)'' after ``(a)''; and (3) by inserting after ``114(a),'' the following: ``or for a transmitting organization that is a broadcast radio or television station licensed as such by the Federal Communications Commission that broadcasts a performance of a sound recording in a digital format on a nonsubscription basis,''; and (4) by adding at the end the following: ``(2) In a case in which a transmitting organization entitled to make a copy or phonorecord under paragraph (1) in connection with the transmission to the public of a performance or display of a work is prevented from making such copy or phonorecord by reason of the application by the copyright owner of technical measures that prevent the reproduction of the work, the copyright owner shall make available to the transmitting organization the necessary means for permitting the making of such copy or phonorecord as permitted under that paragraph, if it is technologically feasible and economically reasonable for the copyright owner to do so. If the copyright owner fails to do so in a timely manner in light of the transmitting organization's reasonable business requirements, the transmitting organization shall not be liable for a violation of section 1201(a)(1) of this title for engaging in such activities as are necessary to make such copies or phonorecords as permitted under paragraph (1) of this subsection.''.

(a) Recommendations by Register of Copyrights.--Not later than 6 months after the date of the enactment of this Act, the Register of Copyrights, after consultation with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives, shall submit to the Congress recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users of copyrighted works. Such recommendations shall include any legislation the Register of Copyrights considers appropriate to achieve the objective described in the preceding sentence. (b) Factors.--In formulating recommendations under subsection (a), the Register of Copyrights shall consider-- (1) the need for an exemption from exclusive rights of copyright owners for distance education through digital networks; (2) the categories of works to be included under any distance education exemption; (3) the extent of appropriate quantitative limitations on the portions of works that may be used under any distance education exemption; (4) the parties who should be entitled to the benefits of any distance education exemption; (5) the parties who should be designated as eligible recipients of distance education materials under any distance education exemption; (6) whether and what types of technological measures can or should be employed to safeguard against unauthorized access to, and use or retention of, copyrighted materials as a condition of eligibility for any distance education exemption, including, in light of developing technological capabilities, the exemption set out in section 110(2) of title 17, United States Code; (7) the extent to which the availability of licenses for the use of copyrighted works in distance education through interactive digital networks should be considered in assessing eligibility for any distance education exemption; and (8) such other issues relating to distance education through interactive digital networks that the Register considers appropriate.

Section 108 of title 17, United States Code, is amended-- (1) in subsection (a)-- (A) by striking ``Notwithstanding'' and inserting ``Except as otherwise provided in this title and notwithstanding''; (B) by inserting after ``no more than one copy or phonorecord of a work'' the following: ``, except as provided in subsections (b) and (c)''; and (C) in paragraph (3) by inserting after ``copyright'' the following: ``that appears on the copy or phonorecord that is reproduced under the provisions of this section, or includes a legend stating that the work may be protected by copyright if no such notice can be found on the copy or phonorecord that is reproduced under the provisions of this section''; (2) in subsection (b)-- (A) by striking ``a copy or phonorecord'' and inserting ``three copies or phonorecords''; (B) by striking ``in facsimile form''; and (C) by striking ``if the copy or phonorecord reproduced is currently in the collections of the library or archives.'' and inserting ``if-- ``(1) the copy or phonorecord reproduced is currently in the collections of the library or archives; and ``(2) any such copy or phonorecord that is reproduced in digital format is not otherwise distributed in that format and is not made available to the public in that format outside the premises of the library or archives.''; and (3) in subsection (c)-- (A) by striking ``a copy or phonorecord'' and inserting ``three copies or phonorecords''; (B) by striking ``in facsimile form''; (C) by inserting ``or if the existing format in which the work is stored has become obsolete,'' after ``stolen,''; and (D) by striking ``if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price.'' and inserting ``if-- ``(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and ``(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.''; and (E) by adding at the end the following:

Section 107 of title 17, United States Code, is amended in the first sentence by striking ``, including such use'' and all that follows through ``section,''.

(a) Scope of Exclusive Rights in Sound Recordings.--Section 114 of title 17, United States Code, is amended as follows: (1) Subsection (d) is amended-- (A) by striking subparagraph (A) and inserting the following: ``(A) a nonsubscription broadcast transmission;''; and (B) by amending paragraph (2) to read as follows: ``(2) Statutory Licensing of Certain Transmissions.--The performance of a sound recording publicly by means of a subscription digital audio transmission not exempt under paragraph (1) or an eligible nonsubscription digital audio transmission shall be subject to statutory licensing, in accordance with subsection (f) if-- ``(A) in the case of a subscription transmission not exempt under paragraph (1) or an eligible nonsubscription transmission-- ``(i) the transmission is not part of an interactive service; ``(ii) except in the case of a transmission to a business establishment, the transmitting entity does not automatically and intentionally cause any device receiving the transmission to switch from one program channel to another; and ``(iii) except as provided in section 1002(e), the transmission of the sound recording is accompanied by the information encoded in that sound recording, if any, by or under the authority of the copyright owner of that sound recording, that identifies the title of the sound recording, the featured recording artist who performs on the sound recording, and related information, including information concerning the underlying musical work and its writer; ``(B) in the case of a subscription transmission not exempt under paragraph (1) by a preexisting subscription service in the same transmission medium used by such service on July 31, 1998-- ``(i) the transmission does not exceed the sound recording performance complement; ``(ii) the transmitting entity does not cause to be published by means of an advance program schedule or prior announcement the titles of the specific sound recordings or phonorecords embodying such sound recordings to be transmitted; and ``(C) in the case of an eligible nonsubscription transmission or a subscription transmission not exempt under paragraph (1) by a new subscription service or by a preexisting subscription service other than in the same transmission medium used by such service on July 31, 1998-- ``(i) the transmission does not exceed the sound recording performance complement, except that this requirement shall not apply in the case of a retransmission of a broadcast transmission if the retransmission is made by a transmitting entity that does not have the right or ability to control the programming of the broadcast station making the broadcast transmission, unless the broadcast station makes broadcast transmissions--

(a) In General.--Part VI of title 28, United States Code, is amended by adding at the end the following new chapter:

``CHAPTER 180--ASSUMPTION OF CERTAIN CONTRACTUAL OBLIGATIONS

transfers of rights in motion pictures

Section 109(a) of title 17, United States Code, is amended by striking the first sentence and inserting the following: ``Notwithstanding the provisions of section 106(3), the owner of a particular lawfully made copy or phonorecord that has been distributed in the United States by the authority of the copyright owner, or any person authorized by the owner of that copy or phonorecord, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.''. TITLE V--COLLECTIONS OF INFORMATION ANTIPIRACY ACT

This title may be cited as the ``Collections of Information Antipiracy Act''.

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

``CHAPTER 13--MISAPPROPRIATION OF COLLECTIONS OF INFORMATION

``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 1302 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. ``(5) Product or service.--A product or service incorporating a collection of information does not include 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.

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

(a) District Court Jurisdiction.--Section 1338 of title 28, United States Code, is amended-- (1) in the section heading by inserting ``misappropriations of collections of information,'' 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 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.''. (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 collections of information,'' 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 collections of information under chapter 13 of title 17'' after ``chapter 9 of title 17''.

(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 13 of title 17, United States Code, as added by section 502 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. TITLE VI--PROTECTION OF CERTAIN ORIGINAL DESIGNS

This Act may be referred to as the ``Vessel Hull Design Protection Act''.

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

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

The amendments made by sections 602 and 603 shall take effect one year after the date of the enactment of this Act.

Pursuant to the rule, the gentleman from North Carolina (Mr. Coble) and the gentleman from Massachusetts (Mr. Frank) each will control 20 minutes.

The Chair recognizes the gentleman from North Carolina (Mr. Coble).

Rep. Howard Coble

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Madam Speaker, I ask unanimous consent that all Members may have 10 legislative days within which to revise and extend their remarks on the bill under consideration.

Is there objection to the request of the gentleman from North Carolina?

There was no objection.

Rep. Howard Coble

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Madam Speaker, I ask unanimous consent that the gentleman from Virginia (Mr. Bliley), the chairman of the Committee on Commerce, be allowed to control 10 of my 20 minutes.

Is there objection to the request of the gentleman from North Carolina?

There was no objection.

Rep. Howard Coble

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Madam Speaker, I yield myself such time as I may consume. Oftentimes when significant legislation comes to the floor, it is described as landmark legislation. At the risk of being presumptuous and immodest, I think this may well indeed be landmark legislation.

This bill will implement two treaties which are extremely important to ensure the adequate protection for American works in countries around the world, particularly at a time when the digital environment now allows users to send and retrieve perfect copies of copyrighted material over the Internet. While digital dissemination of copies will benefit owners and consumers, it will unfortunately also facilitate pirates who aim to destroy the value of American intellectual property. In compliance with the treaties, H.R. 2281 makes it unlawful to defeat technological protections used by copyright owners to protect their works, including preventing unlawful access and targeting devices made to circumvent encrypted copyrighted material. It also makes it unlawful to deliberately alter or delete information provided by a copyright owner which identifies a work, its owners, and its permissible use.

H.R. 2281, Madam Speaker, is a comprehensive copyright bill that adds substantial value to our copyright law. It represents five years of research, debate, hearings and negotiations. It is only the beginning of Congress' evaluation of the impact of the digital age on copyrighted works. Although it is just a beginning, it is essential to maintain the United States' position as the world leader in the protection of intellectual property in the digital environment.

H.R. 2281 also represents the collective efforts of many. In particular I want to commend the gentleman from Illinois (Mr. Hyde), the chairman of the Committee on the Judiciary; the gentleman from Michigan (Mr. Conyers), the ranking member of the Committee on the Judiciary; and the gentleman from Massachusetts (Mr. Frank), the ranking member of the Subcommittee on Courts and Intellectual Property.

H.R. 2281, Madam Speaker, in my opinion is necessary legislation to ensure the protection of copyrighted works as the world moves into the digital environment. I urge its passage.

Madam Speaker, I reserve the balance of my time.

Rep. Barney Frank

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Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, I first want to note that this is a matter that the Committee on the Judiciary has been working on for some time. It then went, under our rules, to the Committee on Commerce. Both committees and indeed both parties in both committees bring this bill forward. I note that because people who have been unduly addicted to the media would not, I think, have an understanding of what has been happening. We have here some very complex issues dealing with the economy and how we adapt some fundamental principles, intellectual property principles which are very important to us, to modern technology. There were some sharp disagreements. There were some conflicting and competing values, as is often the case. What has happened is for a period of some time, first in the Committee on the Judiciary and then in the Committee on Commerce, people have worked on this and come up with what I believe is a very good set of solutions.

I note that because I do think the public is entitled to know that the portrayals of the Congress in general, the Committee on the Judiciary in particular as somehow the set of a Three Stooges movie or the scene of ferocious battles simply is not true. One of the problems we have today is that there is an inattention on the part of our friends in the media to what is the actual business of this place. I think it is important for people to understand. These are very serious issues that had to be dealt with, conflicting values.

For example, many of us feel very strongly on the need to protect intellectual property. If we do not see that authors and composers and singers and musicians and other creative people are rewarded for their work, not only is that unfair, to many of us, but the amount of work we get will diminish.

There may be some people fortunate enough to be able to create out of love without regard to compensation. We cannot depend only on the independently wealthy to be our creative people. It is important for us as a vibrant society to sustain that, and one way to sustain that is to recognize the property that people have in the product of their intellectual labors, their creative intellectual labors.

That was, to some extent, threatened by modern technology, by technological change which makes it easier for that minority of people who do not respect others' intellectual property to steal it because of the collection of technology we now use, the short end of the Internet. What we wanted to do was to come up with ways to adapt the protection of intellectual property to a modern technological era without unduly diminishing people's rights to enjoy things. We do not want to prevent the public from having the enjoyment of these products.

Madam Speaker, I have one thing that bothered me in particular, and I am pleased that this bill addresses it in a reasonable way because there was no guarantee that it would.

One of the things we do here is to say:

``If you are an on-line service provider, if you are responsible for the production of all of this out to the public, you will not be held automatically responsible if someone misuses the electronic airway you provide to steal other people's property.

There is a balance here. We want to protect property, but we do not want to deter people from making this widely available. We have a problem here of making sure that intellectual property is protected, but we do not want freedom of expression impinged upon.

Madam Speaker, I found that particularly important for this reason, and I think this is a point that I want very much to stress:

We live in as free a society from the standpoint of expression as I believe has ever existed in the world. The level of freedom of expression which Americans enjoy is very, very profound, and that is very important to us.

The problem is we have had two doctrines of freedom of expression. We have had one which covered all speech and written speech, newspapers, magazines, theater, billboards; that has been very free.

Beginning in the 1930s when radio came to play, we started a new form of speech, and that was speech electronically transmitted. And because we started with a limited spectrum, because we started with physical limitations on the amount of speech that could go out, we began with electronically-communicated speech in the 1930s to develop a parallel doctrine which gave less protection to speech electronically transmitted. Over time we had a tradition of constitutionally very protected speech, and then speech transmitted electronically that was less protected.

The problem here is that as this society goes forward, an increasingly high percentage of what we say to each other will be electronically transmitted through E-mail and through other ways. It seems to me important for us to reverse this notion that electronically-transmitted speech is entitled to a lesser degree of protection in the area of freedom of expression than all other forms of speech or we will be, 30 years from now, a less free society. That has application to legislation of various kinds, and we will deal with that in another context.

But one of the things that was a potential danger here was that by protecting intellectual property, a very important job, we would have imposed on the on-line service providers such a degree of liability as, in fact, to diminish to some extent the freedom they felt in presenting things.

What I am most happy about in this bill is I think we have hit about the right balance. We have hit a balance which fully protects intellectual property, which is essential to the creative life of America, to the quality of our life, because if we do not protect the creators, there will be less creation. But at the same time we have done this in a way that will not give to the people in the business of running the on-line service entities and running Internet, it will not give them either an incentive or an excuse to censor.

No bill is perfect. There are some tensions here. This will go to conference, and then there will be room for some further changes.

But for achieving that essential balance I am very pleased, and I want to note again the two committees of this House and the parties represented in both committees worked very closely together to bring forward legislation without rancor, without partisanship, in fact serving very well the needs of this country.

Madam Speaker, I reserve the balance of the time. Mr. BLILEY. Madam Speaker, I yield myself 2 minutes.

(Mr. BLILEY asked and was given permission to revise and extend his remarks and include extraneous material.)

Rep. Tom Bliley

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Madam Speaker, I rise in support of H.R. 2281, and would like to begin by commending my good friend and colleague, the gentleman from Illinois (Mr. Hyde), the chairman of the House Committee on the Judiciary, and his very able subcommittee chairman, the gentleman from Greensboro, North Carolina (Mr. Coble), the chairman of the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary.

And I would also like to thank two members of the Committee on Commerce in addition to my ranking member, the gentleman from Michigan (Mr. Dingell), but I would also like to thank the gentleman from Wisconsin (Mr. Klug) and the gentleman from Virginia (Mr. Boucher) whom I believe through their work have improved this legislation. It is because of the steadfast commitment to enacting this important legislation that we are here today on the brink of enactment.

I would like to thank the gentleman from Massachusetts (Mr. Frank), the ranking member of the subcommittee, for his work, as well as the gentleman from Massachusetts (Mr. Markey) for his contributions. It shows that we can work together and we can achieve very important legislation.

As my colleagues know, Madam Speaker, with the growth of electronic commerce having such a profound effect on the economy, the Committee on Commerce has been engaged in a wide-ranging review of the subject, including the issues raised by H.R. 2281. The Committee on Commerce's version of this bill strikes an appropriate balance between the goal of promoting electronic commerce and the interests of copyright owners.

Let me specifically highlight two of the most important changes that the Committee on Commerce added to the bill before us today:

First, the Committee on Commerce included a strong fair use provision to ensure that consumers as well as libraries and institutions of higher learning will be able to continue to exercise their historical fair use rights. The bill before us today contains the substance of the Committee on Commerce provision on fair use, and I am pleased to say that major newspapers such as the New York Times and the Washington Post have strongly endorsed the Committee on Commerce's language on fair use.

Madam Speaker, I include those editorials following my statement in the RECORD.

The editorials referred to are as follows: