November 17, 1997
Just before Congress adjourned last week, Representatives Dick Boucher (D-VA) and Tom Campbell (R-CA) introduced a new comprehensive House Bill that would suitably update the Copyright Act for the digital age. (See Rep. Boucher's Press Release below)
The Digital Era Copyright Enhancement Act (H.R. 3048) includes language to implement the WIPO Copyright Treaty but, unlike the Administration's proposed implementing legislation (S. 1121/H.R. 2281), also includes sections recognizing the importance of Fair Use, First Sale and Distance Learning.
In addition to recognizing the continuance of Fair Use and First Sale as necessary components of copyright legislation in the digital era, H. R. 3048 also authorizes educators to use electronic networks for distance learning in the same way they now use broadcast and closed-circuit television.
Importantly, the bill would address the issue of contracts now being discussed in the reformation of the Universal Commercial Code by which "shrink-wrap" or "click-through" licenses and contracts could abrogate or pre-empt rights and provisions guaranteed by federal law. Section 7 of the bill would pre-empt any such changes in state law, thus guaranteeing the supremacy of federal law.
Also, unlike the WIPO Treaties Implementation Act (H.R. 2281 and S. 1121) , the Boucher-Campbell bill would follow the tenor of the WIPO Copyright treaty itself in focusing more on infringing conduct rather than infringing devices, as far as circumvention of copyright protection software goes.
Watch for further updates here and, for more detailed analysis of this bill, see the section-by-section analysis of H.R. 3048 by the Digital Future Coalition.
See the
side-by-side
comparison of H. R. 3048 with the Administration's H. R. 2281
[Jan 13, 1998]
David Green
From: "Ringley, Sharon"
<Sharon.Ringley@mail.house.gov>
To: "'david@ninch.org'" <david@ninch.org>
Subject: Press Release
Date: Mon, 17 Nov 1997 11:35:25 -0500
November 14, 1997
Contact: Sharon Ringley (202) 225-3861
(Washington, D.C.) --U.S. Representative Rick Boucher (D-VA) and Representative Tom Campbell (R-CA) have introduced the first comprehensive House bill to update the Copyright Act for the digital age.
The Digital Era Copyright Enhancement Act will implement two international copyright treaties, enhance distance learning for students throughout the United States, firmly recognize the doctrines of First Sale and Fair Use for the digital era and foster the continued growth of the Internet. "This legislation provides an historic opportunity for Congress to enact a comprehensive set of reforms to modernize our copyright law in a way that will spur creativity, advance the frontiers of education, and promote technological innovation," Boucher said upon introduction of the legislation.
Commenting on practical applications of the bill, Campbell said: "Educators should be able to use computers in the same way they currently use televisions to foster distance learning, and librarians should be able to use the latest technology to preserve and to share great works of literature and scientific discoveries with their patrons. Through enactment of our measure they will enjoy the benefits of new digital technology in the same way they historically have enjoyed advances in technology throughout the analog era."
The bill has its genesis in the negotiation of two international copyright treaties last December under the auspices of the World Intellectual Property Organization (WIPO). Earlier this year, at the request of the Administration, legislation was introduced to implement the two treaties. That legislation only addresses copyright provisions in the WIPO treaties and does not provide a forum for a discussion of the broader copyright changes which the advent of digital technology will require. The Boucher/Campbell bill provides a single, comprehensive approach that seeks to balance the interests of copyright owners and users of copyrighted works. In addition to implementing the treaties, the bill also contains Fair Use, First Sale and distance learning provisions.
The legislation proposed by the Administration to implement the WIPO treaties includes a device-oriented approach to stemming copyright infringement. This approach was rejected by the delegates at the WIPO negotiations. Compelling testimony offered before the Intellectual Property Subcommittee stated that the approach of the Administration's bill would stifle the introduction of new technology and would effectively overturn the long-settled law of the United States regarding infringing and non-infringing uses.
"Because of my reservations about the implications of the Administration's approach for digital technologies with a focus on controlling so-called "circumvention devices," our legislation attempts to address the legitimate concerns of copyright owners by focusing instead on infringing conduct," Boucher explained. As proposed in the Boucher/Campbell bill, this new section 1201 would create liability for the person who, for purposes of facilitating or engaging in an act of infringement, knowingly circumvents the operation of an effective technological measure used by a copyright owner to preclude or limit reproduction of a work in a digital format.
To address a second international treaty matter, the bill creates liability for a person who knowingly provides false copyright management information or removes or alters copyright management information without the authority of the copyright owner, and with the intent to mislead or induce or facilitate infringement. To assure privacy protection, the bill explicitly excludes from the definition of copyright management information any personally identifiable information relating to the user of a work. Fair Use. The legislation makes clear that the Fair Use doctrine in the copyright law -- which generally preserves the ability of users, including libraries, teachers and scholars, to make limited, noncommercial use of copyrighted works -- continues to apply with full force in the digital networked environment.
Given the historical importance to librarians, scholars, educators, and consumers of transferring to others lawfully acquired copies of works, the bill offers assurances of the continued applicability in the digital environment of the First Sale doctrine. The bill will permit electronic transmission of a lawfully acquired digital copy of a work as long as the person making the transfer eliminates (e.g. erases or destroys) that copy of the work from his or her system at substantially the same time as he or she makes the transfer.
The bill permits libraries to utilize digital technologies for preservation purposes and increases the number of copies of a work that may be made for archival purposes.
The bill fully authorizes educators to use data networks for distance learning in the same way they now use broadcast and closed-circuit television for that purpose.
The bill amends the Copyright Act to make explicit that it is not an infringement of copyright for a person to make a digital copy of a work when such copying is made incidental to the operation of a computer in the course of the use of the work in a way that is otherwise lawful.
Finally, the bill includes a measure to address the increasing practice by which copyright owners use non-negotiated terms in "shrink-wrap" or "click-on" licenses in ways that can abrogate or narrow federal rights consumers otherwise would enjoy under the federal Copyright Act.
The bill has the strong support of many public and private sector groups, including the American Committee for Interoperable Systems, the American Library Association, the Computer and Communications Industry Association, the Consumer Electronics Manufacturers Association, the Digital Future Coalition, the Home Recording Rights Coalition and other groups which support preserving balance in the Copyright Act as it is amended for the digital era.
"With this measure we will help educators, librarians, scholars, computer hardware and software manufacturers, and many other groups in their effort to realize the great potential of the digital networked environment. Our legislation sets a firm foundation for the Congressional debate on modernization of the Copyright Act next year. We look forward to the discussions with our colleagues, the Administration and other interested parties that will produce a balanced reform," Boucher concluded.
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