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106th Congress Rept. 106-349
1st Session HOUSE OF REPRESENTATIVES Part 1
======================================================================
COLLECTIONS OF INFORMATION ANTIPIRACY ACT
_______
September 30, 1999.--Ordered to be printed
_______
Mr. Coble, from the Committee on the Judiciary, submitted the following
R E P O R T
[To accompany H.R. 354]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 354) to amend title 17, United States Code, to
provide protection for certain collections of information,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
TABLE OF CONTENTS
Page
The Amendment.............................................. 2
Purpose and Summary........................................ 9
Background and Need for the Legislation.................... 9
Hearings................................................... 12
Committee Consideration.................................... 12
Vote of the Committee...................................... 12
Committee Oversight Findings............................... 12
Committee on Government Reform Findings.................... 13
New Budget Authority and Tax Expenditures.................. 13
Congressional Budget Office Cost Estimate.................. 13
Constitutional Authority Statement......................... 16
Section-by-Section Analysis and Discussion................. 16
Changes in Existing Law Made by the Bill, as Reported...... 39
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Collections of Information
Antipiracy Act''.
SEC. 2. COLLECTIONS OF INFORMATION.
Title 17, United States Code, is amended by adding at the end the
following new chapter:
``CHAPTER 14--COLLECTIONS OF INFORMATION
``Sec.
``1401. Definitions.
``1402. Prohibition.
``1403. Permitted acts.
``1404. Exclusions.
``1405. Relationship to other laws.
``1406. Civil remedies.
``1407. Criminal offenses and penalties.
``1408. Defense to claims.
``1409. Limitations on actions.
``1410. Study and report.
``Sec. 1401. Definitions
``As used in this chapter:
``(1) Collection of information.--The term `collection of
information' means information that has been collected and has
been organized for the purpose of bringing discrete items of
information together in one place or through one source so that
persons may access them. The term does not include an
individual work which, taken as a whole, is a work of narrative
literary prose, but may include a collection of such works.
``(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) Primary market.--The term `primary market' means all
markets--
``(A) in which a product or service which
incorporates a collection of information is offered;
and
``(B) in which a person claiming protection with
respect to that collection of information under section
1402 derives or reasonably expects to derive revenue,
directly or indirectly.
``(4) Related market.--The term `related market' means any
market--
``(A)(i) in which products or services which
incorporate collections of information similar to a
product or service offered by a person claiming
protection under section 1402 are offered; and
``(ii) in which persons offering such similar
products or services derive or reasonably expect to
derive revenue, directly or indirectly; or
``(B) any market in which a person claiming
protection with respect to a collection of information
under section 1402 has taken demonstrable steps to
offer in commerce within a short period of time a
product or service incorporating that collection of
information with the reasonable expectation to derive
revenue, directly or indirectly.
``(5) Commerce.--The term `commerce' means all commerce
which may be lawfully regulated by the Congress.
``(6) Maintain.--To `maintain' a collection of information
means to update, verify, or supplement the information the
collection contains.
``Sec. 1402. Prohibition
``(a) Making Available or Extracting to Make Available.--Any person
who makes available to others, or extracts to make available to others,
all or a substantial part of a collection of information gathered,
organized, or maintained by another person through the investment of
substantial monetary or other resources, so as to cause material harm
to the primary market or a related market of that other person, or a
successor in interest of that other person, for a product or service
that incorporates that collection of information and is offered or
intended to be offered in commerce by that other person, or a successor
in interest of that person, shall be liable to that person or successor
in interest for the remedies set forth in section 1406.
``(b) Other Acts of Extraction.--Any person who extracts all or a
substantial part of a collection of information gathered, organized, or
maintained by another person through the investment of substantial
monetary or other resources, so as to cause material harm to the
primary market of that other person, or a successor in interest of that
other person, for a product or service that incorporates that
collection of information and is offered or intended to be offered in
commerce by that other person, or a successor in interest of that
person, shall be liable to that person or successor in interest for the
remedies set forth in section 1406.
``Sec. 1403. Permitted acts
``(a) Reasonable uses.--Notwithstanding section 1402, the making
available or extraction of information for purposes such as
illustration, explanation, example, comment, criticism, teaching,
research, or analysis is not a violation of this chapter, if it is
reasonable under the circumstances. In determining whether such an act
is reasonable under the circumstances, all of the following factors
shall be considered:
``(1) The extent to which the making available or
extraction is commercial or nonprofit.
``(2) Whether the amount of information made available or
extracted is appropriate and for the purpose.
``(3) The good faith of the person making available or
extracting the information.
``(4) The extent to which and the manner in which the
portion made available or extracted is incorporated into an
independent work or collection, and the degree of difference
between the collection from which the information is made
available or extracted and the independent work or collection.
``(5) The effect of the making available or extraction on
the primary or related market for a protected collection of
information.
``(b) Certain Nonprofit Educational, Scientific, or Research
Uses.-- Notwithstanding section 1402, no person shall be restricted
from making available or extracting information for nonprofit
educational, scientific, or research purposes in a manner that does not
materially harm the primary market for the product or service referred
to in section 1402.
``(c) Individual Items of Information and Other Insubstantial
Parts.--Nothing in this chapter shall prevent the making available or
extraction of an individual item of information, or other insubstantial
part of a collection of information, in itself. An individual item of
information, including a work of authorship, shall not itself be
considered a substantial part of a collection of information under
section 1402. Nothing in this subsection shall permit the repeated or
systematic making available or extracting of individual items or
insubstantial parts of a collection of information so as to circumvent
the prohibition contained in section 1402.
``(d) Gathering or Use of Information Obtained Through Other
Means.--Nothing in this chapter shall restrict any person from
independently gathering information or making available information
obtained by means other than extracting it from a collection of
information gathered, organized, or maintained by another person
through the investment of substantial monetary or other resources.
``(e) Making Available or Extraction of Information for
Verification.--Nothing in this chapter shall restrict any person from
making available or extracting information from a collection of
information within any entity or organization, for the sole purpose of
verifying the accuracy of information independently gathered,
organized, or maintained by that person. Under no circumstances shall
the information so used be made available to others or extracted from
the original collection in a manner that harms the primary market or a
related market for the collection of information from which it is made
available or extracted.
``(f) News Reporting.--Nothing in this chapter shall restrict any
person from making available or extracting information for the sole
purpose of news reporting on any subject (including news gathering,
dissemination, comment, and feature or general interest reporting)
unless the information so made available or extracted is time sensitive
and has been gathered by a news reporting entity, and making available
or extracting the information is part of a consistent pattern engaged
in for the purpose of direct competition.
``(g) Transfer of Copy.--Nothing in this chapter shall restrict the
owner of a particular lawfully made copy of all or part of a collection
of information from selling or otherwise disposing of the possession of
that copy.
``(h) Genealogical Information.--
``(1) In general.--Notwithstanding section 1402, no person
shall be restricted from--
``(A) making available or extracting genealogical
information for nonprofit, religious purposes; or
``(B) making available or extracting, for private,
noncommercial purposes, genealogical information that
has been gathered, organized, or maintained for
nonprofit, religious purposes.
``(2) Definition.--For purposes of this subsection,
`genealogical information' includes, but is not limited to,
data indicating the date, time, or place of an individual's
birth, christening, marriage, death, or burial, the identity of
an individual's parents, spouse, children, or siblings, and
other information useful in determining the identity of
ancestors.
``(i) Investigative, Protective, or Intelligence Activities.--
Nothing in this chapter shall prohibit--
``(1) an officer, agent, or employee of the United States,
a State, or a political subdivision of a State; or
``(2) a person acting under contract with an officer,
agent, or employee described in paragraph (1),
from making available or extracting information as part of lawfully
authorized investigative, protective, or intelligence activities.
``Sec. 1404. Exclusions
``(a) Government Collections of Information.--
``(1) Exclusion.--Protection under this chapter shall not
extend to collections of information gathered, organized, or
maintained by or for a government entity, whether Federal,
State, or local, including by any employee or agent of such
government entity, or any person substantially funded by,
exclusively licensed by, or working under contract to such
government to achieve a government purpose or fulfill a
government obligation as established by law or regulation, if
such collections of information are gathered, organized, or
maintained within the scope of the employment, agency, license,
grant, contract, or funding. Nothing in this subsection shall
preclude protection under this chapter for information
gathered, organized, or maintained by such a person that is not
within the scope of such employment, agency, license, grant,
contract, or funding, or by a Federal or State educational
institution in the course of engaging in education or
scholarship.
``(2) Exception.--The exclusion under paragraph (1) does
not apply to any information required to be collected and made
available--
``(A) under the Securities Exchange Act of 1934 by
a national securities exchange, a registered securities
association, or a registered securities information
processor, subject to section 1405(g) of this title; or
``(B) under the Commodity Exchange Act by a
contract market, subject to section 1405(g) of this
title.
``(b) Computer Programs.--
``(1) Protection not extended.--Subject to paragraph (2),
protection under this chapter shall not extend to computer
programs, including, but not limited to, any computer program
used in the manufacture, production, operation, or maintenance
of a collection of information, or any element of a computer
program necessary to its operation.
``(2) Incorporated collections of information.--A
collection of information that is otherwise subject to
protection under this chapter is not disqualified from such
protection solely because it is incorporated into a computer
program.
``(c) Digital Online Communications.--Protection under this chapter
shall not extend to a product or service incorporating a collection of
information gathered, organized, or maintained to address, route,
forward, transmit, or store digital online communications, register
addresses to be used in digital online communications, or provide or
receive access to connections for digital online communications.
``Sec. 1405. Relationship to other laws
``(a) Other Rights Not Affected.--Subject to subsection (b),
nothing in this chapter shall affect rights, limitations, or remedies
concerning copyright, or any other rights or obligations relating to
information, including laws with respect to patent, trademark, design
rights, antitrust, trade secrets, privacy, access to public documents,
and the law of contract.
``(b) Preemption of State Law.--On or after the effective date of
this chapter, all rights that are equivalent to the rights specified in
section 1402 with respect to the subject matter of this chapter and
protected by this chapter shall be governed exclusively by Federal law,
and no person is entitled to any equivalent right in such subject
matter under the common law or statutes of any State. State laws with
respect to trademark, design rights, antitrust, trade secrets, privacy,
access to public documents, and the law of contract shall not be deemed
to provide equivalent rights for purposes of this subsection.
``(c) Relationship to Copyright.--Protection under this chapter is
independent of, and does not affect or enlarge the scope, duration,
ownership, or subsistence of, any copyright protection or limitation,
including, but not limited to, fair use, in any work of authorship that
is contained in or consists in whole or part of a collection of
information. This chapter does not provide any greater protection to a
work of authorship contained in a collection of information, other than
a work that is itself a collection of information, than is available to
that work under any other chapter of this title.
``(d) Antitrust.--Nothing in this chapter shall limit in any way
the constraints on the manner in which products and services may be
provided to the public that are imposed by Federal and State antitrust
laws, including those regarding single suppliers of products and
services.
``(e) Licensing.--Nothing in this chapter shall restrict the rights
of parties freely to enter into licenses or any other contracts with
respect to making available or extracting collections of information.
``(f) Communications Act of 1934.--Nothing in this chapter shall
affect the operation of the provisions of the Communications Act of
1934 (47 U.S.C. Sec. 151 et seq.), or shall restrict any person from
making available or extracting subscriber list information, as such
term is defined in section 222(f)(3) of the Communications Act of 1934
(47 U.S.C. Sec. 222(f)(3)).
``(g) Securities and Commodities Market Information.--
``(1) Authority of sec and cftc.--The Securities and
Exchange Commission shall have the authority to modify the
application of this chapter as it affects securities issues
over which it has jurisdiction, and the Commodity Futures
Trading Commission shall have the authority to modify the
application of this chapter as it affects commodities issues
over which it has jurisdiction.
``(2) Federal agencies and acts.--Notwithstanding paragraph
(1), nothing in this chapter shall affect--
``(A) the operation of the provisions of the
Securities Exchange Act of 1934 (15 U.S.C. Sec. 78a et
seq.) or the Commodity Exchange Act (7 U.S.C. Sec. 1 et
seq.);
``(B) the jurisdiction or authority of the
Securities and Exchange Commission or the Commodity
Futures Trading Commission; or
``(C) the functions and operations of self-
regulatory organizations and securities information
processors under the provisions of the Securities
Exchange Act of 1934 and the rules and regulations
thereunder, including making market information
available pursuant to the provisions of that Act and
the rules and regulations thereunder.
``(3) Prohibition.--Notwithstanding any provision of
subsection (a), (b), (c), (d), (e), (g), (h), or (i) of section
1403, nothing in this chapter shall permit the making
available, extraction, resale, or other disposition of real-
time market information except as the Securities Exchange Act
of 1934, the Commodity Exchange Act, and the rules and
regulations thereunder may otherwise provide. Nothing in
subsection (f) of section 1403 shall be construed to permit any
person to make available or extract real-time market
information in a manner that constitutes a market substitute
for a real-time market information service (including the real-
time systematic updating of or display of a substantial part of
market information) provided on a real-time basis.
``(4) Definition.--As used in this subsection, the term
`market information' means information relating to quotations
and transactions that is collected, processed, distributed, or
published pursuant to the provisions of the Securities Exchange
Act of 1934 or by a contract market that is designated by the
Commodity Futures Trading Commission pursuant to the Commodity
Exchange Act and the rules and regulations thereunder.
``(h) Protection of Privacy.--Nothing in this chapter shall limit,
impair, or annul in any manner the protections under Federal or State
law or regulation relating to the collection or use of personally
identifying information, including medical information.
``Sec. 1406. Civil remedies
``(a) Civil Actions.--Any person who is injured by a violation of
section 1402 may bring a civil action for such a violation in an
appropriate United States district court without regard to the amount
in controversy, except that any action against a State governmental
entity may be brought in any court that has jurisdiction over claims
against such entity.
``(b) Temporary and Permanent Injunctions.--Any court having
jurisdiction of a civil action under this section shall have the power
to grant temporary and permanent injunctions, according to the
principles of equity and upon such terms as the court may deem
reasonable, to prevent a violation of section 1402. Any such injunction
may be served anywhere in the United States on the person enjoined, and
may be enforced by proceedings in contempt or otherwise by any United
States district court having jurisdiction over that person.
``(c) Impoundment.--At any time while an action under this section
is pending, the court may order the impounding, on such terms as it
deems reasonable, of all copies of contents of a collection of
information made available or extracted in violation of section 1402,
and of all masters, tapes, disks, diskettes, or other articles by means
of which such copies may be reproduced. The court may, as part of a
final judgment or decree finding a violation of section 1402, order the
remedial modification or destruction of all copies of contents of a
collection of information made available or extracted in violation of
section 1402, and of all masters, tapes, disks, diskettes, or other
articles by means of which such copies may be reproduced.
``(d) Monetary Relief.--When a violation of section 1402 has been
established in any civil action arising under this section, the
plaintiff shall be entitled to recover the actual damages sustained by
the plaintiff as a result of the violation and any profits of the
defendant that are attributable to the violation and are not taken into
account in computing the actual damages sustained by the plaintiff. The
court shall assess such profits or damages or cause the same to be
assessed under its direction. In assessing profits the plaintiff shall
be required to prove defendant's gross revenue only and the defendant
shall be required to prove all elements of cost or deduction claims. In
assessing damages the court may enter judgment, according to the
circumstances of the case, for any sum above the amount found as actual
damages, not exceeding three times that amount. The court in its
discretion may award reasonable costs and attorney's fees to the
prevailing party and shall award such costs and fees if it determines
that an action was brought under this chapter in bad faith against a
nonprofit educational, scientific, or research institution, library, or
archives, or an employee or agent of such an entity, acting within the
scope of his or her employment.
``(e) Reduction or Remission of Monetary Relief for Nonprofit
Educational, Scientific, or Research Institutions and Employees
Thereof.--The court shall reduce or remit entirely monetary relief
under subsection (d) in any case in which a defendant believed and had
reasonable grounds for believing that his or her conduct was
permissible under this chapter, if the defendant was a nonprofit
educational, scientific, or research institution, library, or archives,
or an employee or agent of such an institution, library, or archives
acting within the scope of his or her employment.
``(f) Actions Against United States Government.--Subsections (b)
and (c) shall not apply to any action brought against the United States
Government.
``(g) Relief Against State Entities.--The relief provided under
this section shall be available against a State governmental entity to
the extent permitted by applicable law.
``(h) Relief Against Internet Service Providers.--(1) The relief
provided under this section shall not be available against any Internet
service provider unless such provider violates section 1402 willfully.
``(2) For purposes of this subsection, the term `Internet 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.
``Sec. 1407. Criminal offenses and penalties
``(a) Violation.--
``(1) In general.--Any person who violates section 1402
willfully either--
``(A) for purposes of direct or indirect commercial
advantage or financial gain;
``(B) causes loss or damage aggregating $100,000 or
more during any 1-year period to the person who
gathered, organized, or maintained the information
concerned; or
``(C) causes loss or damage aggregating $50,000 or
more in any 1-year period to the person who gathered,
organized, or maintained the information concerned,
shall be punished as provided in subsection (b).
``(2) Inapplicability.--This section shall not apply to any
employee or agent of a nonprofit educational, scientific, or
research institution, library, archives, or law enforcement
agency, or to any employee or agent of such an institution,
library, archives, or agency acting within the scope of his or
her employment.
``(b) Penalties.--(1) Any person who commits an offense under
subsection (a)(1)(A) shall be fined not more than $250,000, imprisoned
not more than 5 years, or both.
``(2) Any person who commits a second or subsequent offense under
subsection (a)(1)(A) shall be fined not more than $500,000, imprisoned
not more than 10 years, or both.
``(3) Any person who commits an offense under subsection (a)(1)(B)
shall be fined not more than $250,000, imprisoned not more than 3
years, or both.
``(4) Any person who commits a second or subsequent offense under
subsection (a)(1)(B) shall be fined not more than $500,000, imprisoned
not more than 6 years, or both.
``(5) Any person who commits an offense under subsection (a)(1)(C)
shall be fined not more than $100,000, imprisoned not more than 1 year,
or both.
``(c) Victim Impact Statement.--(1) During preparation of the
presentence report pursuant to Rule 32(c) of the Federal Rules of
Criminal Procedure, victims of the offense shall be permitted to
submit, and the probation officer shall receive, a victim impact
statement that identifies the victim of the offense and the extent and
scope of the injury and loss suffered by the victim, including the
estimated economic impact of the offense on that victim.
``(2) Persons permitted to submit victim impact statements shall
include--
``(A) persons who gathered, organized, or maintained the
information affected by conduct involved in the offense; and
``(B) the legal representatives of such persons.
``Sec. 1408. Defenses to claims
``(a) Affirmative Defense When User Cannot Determine When
Collection First Offered In Commerce.--No monetary relief shall be
available for a violation of section 1402 if the person who made
available or extracted all or a substantial part of the collection of
information that is the source of the violation could not reasonably
determine whether the date on which the portion of the collection that
was made available or extracted was first offered in commerce following
the investment of resources that qualified that portion of the
collection for protection under this chapter by the person claiming
protection under this chapter or that person's predecessor in interest
was a date more than 15 years prior to making available or extracting
the information.
``(b) Notice.--In the case of a collection of information into
which all or a substantial part of a government collection of
information is incorporated after the effective date of this chapter,
no monetary relief shall be available for a violation of section 1402
unless a statement appeared in connection with the version of the
collection of information from which the information was made available
or extracted, in a manner and location so as to give reasonable notice,
identifying the government collection and the government entity from
which it was obtained.
``(c) Access to Government Information.--
``(1) In general.--In the case of a collection of
information that incorporates all or a substantial part of a
government collection of information, a nonprofit educational,
scientific, or research institution, library, or archives, or
an employee or agent of such an institution, library, or
archives, acting within the scope of his or her employment,
shall have a complete defense to an action for a violation of
section 1402 for extracting the government information, if all
of the following circumstances apply:
``(A) The government information was not publicly
available from the government or reasonably available
from any other source.
``(B) The information was extracted for the purpose
of engaging in nonprofit educational, scientific, or
research activities and not for the purpose of offering
the information obtained for sale or otherwise in the
market.
``(C) Prior to extracting the government
information, the person who extracted it--
``(i) made reasonable, good faith efforts
to obtain the information from other sources;
and
``(ii) made a written request to the person
asserting protection under this chapter, which
clearly identified the information to be
extracted and described the reasonable, good
faith efforts made under clause (i).
``(D) The person claiming protection under this
chapter did not make the government information
available within a reasonable time after receipt of the
request, in any form of that person's choosing,
including the form in which the government information
was first obtained from the government entity or its
employee, agent, or exclusive licensee, at the cost of
the information's identification, extraction, and
delivery.
``(2) Applicability.--This subsection applies only to
collections of information existing before the effective date
of this chapter and only if the person claiming protection
under this chapter can reasonably identify and extract the
requested information in the form first obtained from the
government entity, employee, agent, or exclusive licensee.
``Sec. 1409. Limitations on actions
``(a) Criminal Proceedings.--No criminal proceeding shall be
maintained under this chapter unless it is commenced within three years
after the cause of action arises.
``(b) Civil Actions.--No civil action shall be maintained under
this chapter unless it is commenced within three years after the cause
of action arises or claim accrues.
``(c) Additional Limitation.--No criminal or civil action shall be
maintained under this chapter for making available or extracting all or
a substantial part of a collection of information that occurs more than
15 years after the portion of the collection that is made available or
extracted was first offered in commerce following the investment of
resources that qualified that portion of the collection for protection
under this chapter. In no case shall any protection under this chapter
resulting from a substantial investment of resources in maintaining a
preexisting collection prevent any information from being made
available or extracted from a copy of the preexisting collection after
the 15 years have expired with respect to the portion of that
preexisting collection that is so made available or extracted, and no
liability under this chapter shall thereafter attach to the making
available or extraction of such information.
``(d) Burden of Proof on Plaintiff To Show Portion First Offered In
Commerce No More Than 15 Years Old.--No action for a violation of
section 1402 may be maintained unless the person claiming protection
under this chapter proves that the date on which the portion of the
collection that was made available or extracted was first offered by
that person or that person's predecessor in interest in commerce
following the investment of resources that qualified that portion of
the collection for protection under this chapter was no more than 15
years prior to the time when it was made available or extracted by the
defendant.
``Sec. 1410. Study and report
``No later than 3 years after the date of enactment of this Act,
the Register of Copyrights and the Assistance Attorney General,
Antitrust Division of the Department of Justice, shall conduct a joint
study and submit a joint report to Congress on whether the defense
provided for in section 1408(c) should be expanded to include
collections of information that do not incorporate all or a substantial
part of a government collection of information where the extracted
information is not publicly available from any other source.''.
SEC. 3. CONFORMING AMENDMENTS.
(a) Table of Chapters.--The table of chapters for title 17, United
States Code, is amended by adding at the end the following:
``14. Collections of Information............................ 1401''.
(b) District Court Jurisdiction.--(1) Section 1338 of title 28,
United States Code, is amended--
(A) in the section heading by striking ``trade-marks,'' and
inserting ``trademarks, collections of information,'';
(B) in subsection (a) by striking ``trade-marks'' and
inserting ``trademarks'';
(C) in subsection (b) by striking ``trade-mark'' and
inserting ``trademark''; and
(D) by adding at the end the following:
``(d) The district courts shall have original jurisdiction of any
civil action arising under chapter 14 of title 17, relating to
collections of information. Such jurisdiction shall be exclusive of the
courts of the States, except that any action against a State
governmental entity may be brought in any court that has jurisdiction
over claims against such entity.''.
(2) The item relating to section 1338 in the table of sections for
chapter 85 of title 28, United States Code, is amended by striking
``trade-marks,'' and inserting ``trademarks, collections of
information,''.
(c) Place for Bringing Actions.--(1) Section 1400 of title 28,
United States Code, is amended by adding at the end the following:
``(c) Civil actions arising under chapter 14 of title 17, relating
to collections of information, may be brought in the district in which
the defendant or the defendant's agent resides or may be found.''.
(2) The section heading for section 1400 of title 28, United States
Code, is amended to read as follows:
``Sec. 1400. Patents and copyrights, mask works, designs, and
collections of information''.
(3) The item relating to section 1400 in the table of sections at
the beginning of chapter 87 of title 28, United States Code, is amended
to read as follows:
``1400. Patents and copyrights, mask works, designs, and collections of
information.''.
(d) Court of Federal Claims Jurisdiction.--Section 1498(e) of title
28, United States Code, is amended by inserting ``and to protections
afforded collections of information under chapter 14 of title 17''
after ``chapter 9 of title 17''.
SEC. 4. EFFECTIVE DATE.
(a) In General.--This title and the amendments made by this title
shall take effect on the date of the enactment of this Act, and shall
apply to acts of extraction and making available of information that
are committed on or after that date.
(b) Prior Acts Not Affected.--No person shall be liable under
chapter 14 of title 17, United States Code, as added by section 2 of
this Act, for making available 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.
Purpose and Summary
H.R. 354, the ``Collections of Information Antipiracy
Act,'' responds to a need to supplement copyright law to
prevent the wholesale copying of another's collection of
information in a manner which harms the market for that
collection. The bill ensures incentives for investment in the
production and dissemination of collections of information,
while maintaining continued access to information contained in
such collections for public interest purposes such as
education, science and research.
The Collections of Information Antipiracy Act prohibits the
misappropriation of commercially valuable collections by those
who pirate data that has been collected by others through
substantial effort and expense, and use it in a way that causes
market injury to the producer of the original collection. This
protection is modeled in part on the Lanham Act, which already
makes various types of unfair competition a civil wrong under
Federal law. Importantly, existing protections for collections
of information afforded by other bodies of law, most notably
copyright and contract rights, are maintained in their present
form. The bill is intended to supplement these legal rights,
not replace them.
Background and Need for the Legislation
Electronic collections, and other collections of factual
material, are indispensable to the United States in the new
information economy. These information products put a wealth of
data in a convenient and organized form at the fingertips of
business people, professionals, scientists, scholars, and
consumers, and enable them to retrieve specific factual
information that they need to solve a particular economic,
research, or educational problem. Whether the focus is on
financial, scientific, legal, medical, bibliographic, news, or
other information, databases are essential tools for improving
productivity, advancing education and training. They are also
the linchpins of a world-leading dynamic commercial information
industry in the United States.
Developing, compiling, distributing and maintaining
commercially significant collections requires substantial
investments of time, personnel, and effort and money.
Information companies, small and large, must dedicate massive
resources to gathering and verifying factual material,
presenting it in a user-friendly way, and keeping it current
and useful to customers. American firms have been the global
leaders in this field. They have brought to market a wide range
of valuable collections that meet the information needs of
businesses, professionals, researchers, and consumers
worldwide. But several recent legal and technological
developments threaten to derail this progress by eroding the
incentives for continued investment needed to maintain and
build upon the U.S. lead in world markets for electronic
information resources.
Historically, protection of collections of information has
always been recognized as a branch of copyright law. Databases
or compilations have been protected by copyright in some form
since 1790, when the first U.S. Copyright Act was enacted. As
courts applied copyright law to compilations, two distinct
rationales for protection emerged. One, known as ``sweat of the
brow,'' viewed the compiler's effort and investment (much as in
trademark law) as the basis for copyright protection. In 1976,
the Copyright Act was amended to require that compilations
contain an element of creativity or originality in addition to
effort and investment. Despite this amendment, many courts have
continued to apply the ``sweat of the brow'' doctrine in
determining copyright protection.
In Feist Publications, Inc., v. Rural Telephone Service
Co., the Supreme Court affirmed that originality and creativity
in addition to investment and effort are required for
protection under the Copyright Act, and that a related form of
protection would have to be created in order to completely
protect compilations or portions of compilations in which there
is effort and investment but not a threshold level of
originality or creativity. H.R. 354 provides such copyright-
related protection by amending title 17 to create a new chapter
14. Copyright-related protection of this kind has consistently
been achieved through amendments to title 17 of the United
States Code so as to be construed in the context of and in
tandem with protection under the Copyright Act. This was the
case with protection for mask works (chapter 9 of title 17) and
protection for original designs (chapter 13 of title 17.)
While Feist reaffirmed that most--although not all--
commercially significant databases satisfy the ``originality''
requirement for protection under copyright, the Court
emphasized that this protection is ``necessarily thin.''
Several subsequent lower court decisions have underscored that
copyright cannot stop a competitor from lifting massive amounts
of factual material from a copyrighted database to use as the
basis for its own competing product. This casts doubt on the
ability of a database proprietor to use contractual provisions
to protect itself against unfair competition from ``free
riders.''
In Europe, a 6-year legislative process culminated in the
issuance of a European Union Directive on Legal Protection of
Databases in 1996. Among other things, the Directive creates a
new sui generis form of property right for the legal protection
of databases to supplement copyright. However, it denies this
new protection to collections of information originating in the
United States or other countries unless the other country
offers ``comparable'' protection to collections originating in
the European Union. When fully implemented, the European
Directive could place U.S. firms at an enormous competitive
disadvantage throughout the entire European market.
At the World Intellectual Property Organization,
discussions are ongoing as to whether or not there is a growing
international consensus supporting development of a new
international treaty on sui generis property right protection
for databases. This bill rejects the notion that an exclusive
sui generis property right is the only approach to strong
database protection, but rather offers comparable protection
through the implementation of a new copyright-related Federal
misappropriation statute.
In cyberspace, technological developments represent a
threat as well as an opportunity for collections of
information, just as for other kinds of works. Copying factual
material from another's collection, and rearranging it to form
a competing information product--just the kind of behavior that
copyright protection alone may not effectively prevent--is
cheaper and easier than ever, through digital technology that
is now in widespread use. Furthermore, piracy and personal
theft of collections developed through the resources of another
is easy to achieve and will be rampant without proper
protections for producers.
When all these factors are added together, it is clear that
now is the time to enact new Federal copyright-related
legislation to protect developers against piracy and unfair
competition, and thus encourage continued investment in the
production and distribution of valuable commercial collections
of information. Such legislation will improve the market
climate for collections of information in the U.S.; ensure
protection for U.S. collections abroad on an equitable basis;
place the U.S. on the leading edge of an emerging international
consensus; and provide a balanced and measured response to the
new challenges of digital technology. This bill seeks to
advance those goals.
The result of careful legislative deliberation and numerous
hearings, the ``Collections of Information Antipiracy Act''
sets forth intellectual property incentives that the committee
believes will ensure the continued growth, vitality and success
of the market for important information products, while
securing the continued legitimate use of collections of
information for scientific, research, educational and archive
purposes. The committee further believes that preventing
producers from having to rely exclusively on a hodgepodge of
individual State laws is essential to advancing this goal.
The ``Collections of Information Antipiracy Act'' is a
balanced proposal. It is aimed at actual or threatened market
injury resulting from the misappropriation of substantial parts
of collections of information, not at ordinary nonprofit uses
of particular information from a collection. The goal is to
stimulate the creation of even more collections, and to
encourage even more competition among them. The bill avoids
conferring any monopoly on facts, and does not create a
proprietary right to facts within a collection or take any
other steps that might be inconsistent with these goals.
The bill would prevent any person who extracts or uses in
commerce all or a substantial part of a collection of
information in a way that causes material harm to the markets
of the original collector. Those who violate this act would be
liable to the producer of the collection for damages in an
amount equal to the defendant's profits or damages to the
plaintiff, plus costs, and also could be held criminally liable
in certain egregious cases.
Provisions similar to this legislation passed the House of
Representatives twice last year: once in H.R. 2652, and once as
Title V of H.R. 2281, the ``Digital Millennium Copyright Act.''
Further changes have been made in the introduced and reported
versions of this legislation to Section 1403 (Permitted Acts)
and to Section 1408 (Limitations on Actions), including the
addition of a ``fair use''-like provision and a clarification
that protection under this bill is limited to fifteen years.
Hearings
H.R. 354, the ``Collections of Information Antipiracy Act''
was the topic of a legislative hearing on Thursday, March 18,
1999. Testifying at the hearing was Marybeth Peters, Register
of Copyrights, Copyright Office of the United States, Library
of Congress; Andrew Pincus, General Counsel, United States
Department of Commerce; James G. Neal, Dean, University
Libraries, Johns Hopkins University; Terrence M. McDermott,
Executive Vice President, The National Association of Realtors;
Marilyn G. Winokur, Executive Vice President, Microdex,
Incorporated; Dr. Joshua Lederberg, Professor, Sackler
Foundation Scholar, The Rockefeller University; Lynn Henderson,
President, Doane Agricultural Services Company; Michael Kirk,
Executive Director, American Intellectual Property Lawyers
Association; Charles E. Phelps, Provost, University of
Rochester; and Dan Duncan, Vice President, Government Affairs,
Software and Information Industry Association.
Committee Consideration
On May 20, 1999, the Subcommittee on Courts and
Intellectual Property met in open session and ordered reported
the bill H.R. 354 with an amendment in the nature of a
substitute, by a voice vote, a quorum being present. On May 26,
1999, the committee met in open session and ordered reported
favorably the bill H.R. 354 with an amendment in the nature of
a substitute, by a voice vote, a quorum being present.
Vote of the Committee
During their consideration of H.R. 354, the committee and
the subcommittee took no rollcall votes.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XI of the Rules
of the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the committee on
Government Reform and Oversight were received as referred to in
clause 3(c)(4) of rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the committee sets forth, with
respect to the bill, H.R. 354, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 16, 1999.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 354, the
Collections of Information Antipiracy Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark Hadley
and Mark Grabowicz (for Federal costs), who can be reached at
226-2860, Shelley Finlayson (for the state and local impact),
who can be reached at 225-3220, and John Harris (for the
private-sector impact), who can be reached at 226-6910.
Sincerely,
Dan L. Crippen, Director.
H.R. 354--Collections of Information Antipiracy Act.
SUMMARY
CBO estimates that enacting H.R. 354 could result in
significant mandatory costs to the federal government. Such
costs would probably be zero in many years, but we expect that
the average annual costs would be about $10 million, beginning
in 2002. Because the bill would affect direct spending, pay-as-
you-go procedures would apply.
H.R. 354 would attempt to protect substantial investments
made in the collecting of information or the establishing of
databases with commercial value. Databases that lack a modest
amount of original creative expression are not eligible for
copyright protection. For example, the Supreme Court held in
Feist Publications v. Rural Telephone Service Co., 449 U.S. 340
(1991), that the ``white pages'' of standard telephone
directories lack sufficient creative expression to sustain a
copyright. To provide some protection of investments in such
databases and other collections of information, H.R. 354
generally would prohibit the misappropriation of a substantial
portion of such information in a way that would decrease its
potential market value.
Violators of the bill's provisions would be subject to a
criminal fine, imprisonment, or civil action. The bill would
waive the sovereign immunity of the federal government from
liability for decreasing the potential market value of
databases. Finally, the bill would require the U.S. Copyright
Office and the Department of Justice (DOJ) to conduct a study
on whether the Congress should expand certain exemptions for
research, educational, or archival uses.
H.R. 354 contains an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act (UMRA) because it would
preempt state laws regarding the protection of collections of
information. However, CBO estimates that complying with this
mandate would not have a significant impact on state budgets
primarily because states do not generally regulate in this area
of law. The bill also would create a new private-sector
mandate, as defined in UMRA, by granting copyright-like
protection to certain collections of information that are not
protected by copyright law. CBO cannot estimate the costs that
this mandate would impose on the private sector.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
Spending Subject to Appropriation
Because H.R. 354 would establish a new federal crime, CBO
anticipates that the U.S. government would be able to pursue
cases that it otherwise would be unable to prosecute. Based on
information from DOJ, however, we do not expect the government
to pursue many additional cases. Thus, CBO estimates that
implementing the bill would not have a significant impact on
the cost of federal law enforcement activity. Implementing the
bill also could increase costs to the federal courts if more
civil suits are filed by private parties, but we do not expect
many additional cases.
Based on information from the Copyright Office, CBO
estimates that conducting the required study would not
significantly increase costs. Finally, waiving sovereign
immunity could result in the government paying more to license
privately owned databases and could result in additional costs
to defend the government in litigation. CBO cannot estimate the
amount or timing of these costs, but any such spending would be
subject to appropriation of the necessary amounts.
Revenues and Direct Spending
CBO cannot precisely estimate the magnitude or timing of
costs that would result from waiving sovereign immunity. The
costs could vary greatly from year to year and could be
significant--at least in some years. Just one successful suit
could result in the payment of tens of millions of dollars.
Such payments for successful claims against the federal
government would constitute direct spending.
We expect that there would be no claims payments in many
years. In particular, CBO estimates no significant payments for
2000 or 2001 because it would take some time for suits to be
initiated and resolved. Although payments are likely to be
sporadic, we estimate that they would average about $10 million
a year beginning in 2002.
Enacting H.R. 354 could increase governmental receipts
(i.e., revenues) from fines, but we estimate that any such
increase would be less than $500,000 annually. Criminal fines
are deposited as revenues in the Crime Victims Fund and spent
in the following year. Thus, any change in direct spending from
the fund would match the increase in revenues with a one-year
lag.
PAY-AS-YOU-GO CONSIDERATIONS
The Balanced Budget and Emergency Deficit Control Act sets
up pay-as-you-go procedures for legislation affecting direct
spending and receipts. H.R. 354 would affect both direct
spending and receipts, but the effects on revenues would be
less than $500,000 a year. We estimate direct spending costs of
$10 million a year, beginning in 2002, as shown in the
following table. For the purposes of enforcing pay-as-you-go
procedures, only the effects in the current year, the budget
year, and the succeeding four years are counted.
By Fiscal Year, in Millions of Dollars
----------------------------------------------------------------------------------------------------------------
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
Changes in outlays 0 0 0 10 10 10 10 10 10 10 10
Changes in receipts 0 0 0 0 0 0 0 0 0 0 0
----------------------------------------------------------------------------------------------------------------
ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS
H.R. 354 contains an intergovernmental mandate as defined
in UMRA because it would preempt state laws regarding the
protection of collections of information. However, CBO
estimates that complying with this mandate would not have a
significant impact on state budgets primarily because states do
not generally regulate in this area of law.
ESTIMATED IMPACT ON THE PRIVATE SECTOR
H.R. 354 would create a new private-sector mandate by
granting copyright-like protection to certain collections of
information that are not protected by copyright law. Firms that
commercially exploit such collections without first obtaining
the permission of their owners would be required to pay license
fees to the owners or to excise the infringing materials from
their products. CBO expects that many such firms would enter
into license agreements. Those firms unable to obtain licenses
would suffer decreased revenues.
CBO cannot estimate the mandate's costs because we do not
have enough information to determine the scope and impact of
the new protections. Court rulings identify certain affected
collections, but because collection owners are not always aware
of unauthorized use and may not wish to bring legal action
under current law, court rulings are only a limited indication
of the types of collections to which H.R. 354 would extend
protection.
ESTIMATE PREPARED BY:
Federal Costs: Mark Hadley and Mark Grabowicz (226-2860)
Impact on State, Local, and Tribal Governments: Shelley
Finlayson (225-3220)
Impact on the Private Sector: John Harris (226-6910)
ESTIMATE APPROVED BY:
Robert A. Sunshine
Deputy Assistant Director for Budget Analysis
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in Article 1, section 8, clause 3 of the
Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short Title
The short title of the act will be the ``Collections of
Information Antipiracy Act''
Section 2. Prohibition Against Misappropriation.
This Section creates a new chapter 14 of the Copyright Act
to prevent the misappropriation of another's collection of
information where material market harm results. Section 1402
sets out the central prohibition of the Act. It states that any
person who makes available to others, or extracts to make
available to others, all or a substantial part of a collection
of information of another person so as to cause material harm
to that other person's primary or related market for a product
or service is liable for the remedies established in this act.
To be eligible for protection, the collection of information
must be gathered, organized, or maintained through the
investment of substantial monetary or other resources. In order
to qualify, the investment must be substantial, whether it
consists of money, time, or effort. The protection would extend
to any successor in interest of the person that produced the
collection of information.
The use of a substantial part of a collection of
information cannot be unlawful under this act unless it is a
use made in commerce. Accordingly, the use of information for
purely private purposes, without a nexus to commerce such as
dissemination to others, would not be prohibited. The intent of
the committee is to ensure that those with lawful access to a
collection have the ability freely to use its contents for
purposes of noncommercial internal study, research or analysis.
In contrast, the act of extraction itself could fall within the
prohibition of the bill even if it is noncommercial and
private, in order to safeguard against the destruction of a
market from the members of the intended market simply
downloading a collection for their own use without
authorization or payment. Such a circumstance would arise where
the person undertaking the act of extraction is within the
market for the collection and the extraction causes material
harm to that market.
The prohibition of the Act applies only if either the
entire collection, or a substantial part of the collection, is
taken. The intent is to prohibit piratical takings that
misappropriate the value of the collection itself, rather than
particular items of information it contains. Since the taking
of a substantial part of a collection may seriously harm the
collection's market, the prohibition cannot be limited to the
taking of the entire collection. Only portions of the
collection that are substantial in amount or importance to the
value of the collection as a whole would be covered.
Qualitative harm may occur through the extraction of a
quantitatively small but valuable portion of a collection of
information. For example, the Physician's Desk Reference, a
work that compiles generally available information about every
prescription drug approved by the Food and Drug Administration,
contains some several thousand drugs and is available to both
consumers and medical professionals. If a second comer
extracted information about the thousand most commonly
prescribed medications and offered it for sale to the general
public--for example under the title ``Drugs Every Consumer
Should Know''--that extraction and use, although a fraction of
the total collection of information, would cause the kind of
market harm that the committee intends this legislation to
prevent. Similarly, the extraction or use of real-time quotes
for all technology stocks from a securities database, while
constituting a relatively small portion of actively traded or
volatile securities, may be of such ``qualitative'' importance
to the value of the database that it creates the type of
commercial harm that the committee intends section 1402 to
prevent. On the other hand, the fact that a particular item in
the collection is itself of great value does not establish its
qualitative substantiality as a part of the collection.
Additionally, the prohibition does not apply to or affect the
operations or provisions of the Federal Food, Drug and Cosmetic
Act (21 U.S.C. Sec. 331 et. seq.).
The distinction between the sheer quantity and the value or
quality of data extractions is particularly important in the
context of securities and commodities market data. Thousands of
securities are publicly traded. The stock exchanges and the
NASD are required to collect and disseminate data regarding
market activity on a real-time basis, regardless of volume or
activity in a particular stock. The sheer number of publicly-
traded securities is such that the extraction of quotes on a
certain industry sector, or based solely on contemporaneous
trading activity would be insubstantial as a percent of the
total database, but highly significant and valuable to the
producer's market for that data.
Obviously, the greater the portion of the collection taken,
the more likely (a) that the taking will be substantial and (b)
that material harm will occur. For example, assume that a
collector offers a collection of public domain photographs of
famous people born in Massachusetts, and invested substantial
resources in obtaining these photographs. A defendant could not
automatically be excused from the harmful effect of extracting
and making available the entire collection of photographs by
incorporating them wholesale into a database of famous people
born in all fifty States, in effect showing how much the
defendant did not take. The Act seeks to prevent market harm to
the investment in collections of information, and defendants
should not be able to escape liability through activity
analogous to the use of a stapler.
Under the misappropriation approach of this bill, liability
is premised on harm to the primary or related market for the
collection of information. The element of market harm is
therefore critical, and should be properly understood.
Misappropriation under the chapter occurs only if the making
available to others or extraction causes harm to the primary or
related market for a collection of information produced by the
aggrieved person or its predecessor. Clearly, extracting
information from a database and using it in a new database
which competes with the first database causes harm to the
actual market for the first database. Similarly, if a person
extracts so much of an online database that the person would,
in the future, be able to avoid paying a subscription fee for
access to the data it contains, that person has harmed the
market for the database.
As originally introduced Sec. 1402 spoke in terms of
``harm'' to the market of a collection of information protected
under the Act. The committee has decided to modify Sec. 1402 to
prohibit ``material harm'' to such markets. This amendment to
Sec. 1402 is in direct response to the Administration's
suggestion that the harm standard be stated so as to clearly
``shield de minimis activities from any possible liabilities.''
\1\ Thus, as amended, the material harm standard under
Sec. 1402 is not intended to include de minimis market injury--
injury that it is so isolated, minor, or speculative that the
defendant's conduct, even if it were to become widespread among
defendant or others--would not be considered by a reasonable
person in deciding whether to invest in gathering, organizing
or maintaining collections of information. The committee has
considered and rejected as overly burdensome to the overriding
purpose of this Act the test enunciated by the Second Circuit
Court of Appeals in NBA v. Motorola.\2\
---------------------------------------------------------------------------
\1\ Administration written statement at 9-10.
\2\ 105 F.3d 841 (2nd Cir. 1997).
---------------------------------------------------------------------------
In the committee's view, the requirement of material harm
will rule out violations of this chapter for various uses of
information from collections for bona fide entertainment
purposes that differ significantly from the function of the
product or service incorporating that collection. Thus, if such
use of information were limited to incorporation in such an
entertainment product or service not organized to provide
discrete access to such incorporated information, it would be
unlikely to harm materially the collection from which it was
drawn. For example, if substantial portions of a collection
protected under this chapter were extracted for purposes of
preparing a docudrama, the docudrama would not ordinarily
interfere with sales or licences of the collection.
The prohibition in this section is written so as to avoid
preventing consumer, scientific, or educational uses of
information which has been acquired through lawful access. It
would not, for example, prevent scientists from sharing data
sets, or publishing the results of their analysis of data,
since such acts do not ordinarily involve use in commerce that
would harm the market for the database. Nor is the Act intended
to cover indirect harm to the market for a product. For
example, a chemical company which uses the information in a
database (for which it paid) to create a new chemical which
revolutionizes a segment of the industry, and thereby
diminishes demand for the database by decreasing the number of
companies in the industry, has not misappropriated information
within the meaning of this chapter. The harm to the market was
not directly caused by the use of the information, but by the
changes to the industry that came about through the effect of
the use of the information.
Section 1401 provides several definitions. It defines
``collection of information'' to mean information that has been
collected and organized for the purpose of bringing discrete
items of information together in one place or through one
source so that users may access them. The definition further
clarifies that the term does not include an individual work
which, taken as a whole, is a work of narrative literary prose,
but may include a collection of such works. The definition is
intended to avoid sweeping too broadly, particularly in the
digital environment, where all types of material when in
digital form could be viewed as collections of information. It
makes clear that the statute protects what has been
traditionally thought of as a database, involving a collection
made by gathering together multiple discrete items with the
purpose of forming a body of material that consumers can use as
a resource in order to obtain the items themselves. This is in
contrast to elements of information combined and ordered in a
logical progression or other meaningful way in order to tell a
story, communicate a message, represent something, or achieve a
result. A work of narrative prose includes a biography,
history, novel or account of contemporary events, or similar
work of literary prose, regardless of the nature of the medium
in which it is embodied. Nothing in this chapter shall prevent
the utilization of information from such a work in other works
of authorship. Thus, a novel would not be considered a
``collection of information'' even if it appears in electronic
form, and therefore could be described as made up of elements
of information that have been put together in some logical way.
Similarly, material such as interface specifications would not
ordinarily be covered, although a collection of such
specifications created in order to provide consumers access to
the individual specifications could be covered. The term ``in
one place or through one source'' denotes the availability of
the information to consumers in a single material object or
through a specific address, location or other source. It does
not require that all of the information be present at any
particular physical site.
The section also contains a definition of ``primary
market,'' which means all markets ``in which a product or
service which incorporates a collection of information is
offered'' and ``in which a person claiming protection with
respect to that collection of information under section 1402
derives or reasonable expects to derive revenue, directly or
indirectly.'' This definition, which is drawn from judicial
interpretations of the fair use doctrine under copyright law,
is intended to clarify that ``primary market'' is not to be
interpreted in a circular way, to avoid the result that any
market that the producer of the collection could someday
exploit is deemed a potential market sufficient to lead to
liability.
The section contains a definition of ``related market,''
which means any market ``in which products or services which
incorporate collections of information similar to a product or
service offered by a person claiming protection under section
1402 are offered'' and ``in which persons offering such similar
products or services derives or reasonably expect to derive
revenue, directly or indirectly.'' The term ``related market''
may also refer to any market in which a person claiming
protection with respect to a collection of information under
section 1402 has taken demonstrable steps to offer in commerce
within a short period of time a product or service
incorporating that collection of information with the
reasonable expectation to derive revenue, directly or
indirectly.
In the past, the definitions of primary and secondary
markets require that a person who is seeking protection under
the bill ``derives or reasonably expects to derive revenue,
directly or indirectly,'' from that market. The committee does
not intend that this test be burdensome, recognizing that
substantial investment of monetary or other resources by the
owner of a collection will most likely never occur without the
expectation of gaining substantial revenues. When Henry Ford
first designed his assembly line, many people thought that his
expectation of return was not only unreasonable, but absurd. By
the same token, many Internet companies have defied current
stock valuation methodologies by having multibillion dollar
market capitalizations despite operating at a loss for
consecutive quarters or years. Thus, a lack of immediate
revenue from the offering of a collection of information in
commerce, or even within a few years, does not obviate the
existence of a primary market. Uncertainty of return, or even
evidence of no or little revenue, does not render the
expectation of revenues unreasonable. However, in making this
assessment, the court should look at the substantiality of the
investment of resources as to the particular market from which
the particular database proprietor expects to derive revenue.
Moreover, the revenue that is intended to be derived does
not have to come directly from the licensing or sale of the
collection of information. It may come, for example, from using
the collection to attract advertisers or customer attention or
interest. Similarly, a nonprofit research organization may
place a qualifying collection of information online, and never
intend to earn any revenue from it through licensing fees. The
organization may, however, use the fact of the collection's
existence as a basis for soliciting donations to help deflect
the cost of its operating expenses.
``Information'' is defined to mean facts, data, works of
authorship, or other intangible material capable of being
collected and organized in a systematic way. It is important to
ensure that databases made through substantial investments in
collecting and organizing copyrightable works of authorship,
which will be a critical source of entertainment and
educational material for consumers on the Internet, may be
protected under this chapter. This does not mean that the
copyrighted works themselves are protected under this chapter,
as made clear by section 1405(c). This provision, as with the
entirety of this Act, is not intended to alter any rights
existing as to the materials collected.
Paragraph (5) defines ``commerce'' as all commerce which
may be lawfully regulated by the Congress. A collection of
information that is utilized within a particular organization
or group of customers, but not made available to the general
public, could qualify for protection under this chapter as
``offered or intended to be offered for sale or otherwise . . .
in commerce.'' Since many collections will be disseminated
through licensing mechanisms, the relevant offer is not limited
to one made for sale.
Paragraph (6) defines ``maintain'' to include updating,
ongoing verification or supplementing of the information the
collection contains. Given the promise of the Internet and
emerging technology for distributing information in ways
hitherto unimagined, these terms should be interpreted broadly.
Thus, substantial investments made to bring a collection
forward into the information age may qualify the resulting
product for protection.
The committee intends the phrase ``makes available to
others'' to be interpreted broadly, as the applicability of
section 1402 ultimately turns on the existence of material harm
to a primary or, in certain cases, related market for a
collection. Thus, ``making available to others'' means making a
portion of a collection of information available to any other
individual irrespective of any affiliations, or lack thereof,
between the individual making the portion available and its
recipient, or of the manner in which the portion of the
collection is transferred, whether on paper or magnetic media,
through transmission or display, or in a form later developed.
For example, the term covers both a situation where someone
offers for sale, license, or at no cost, substantial portions
of a protected collection, and also in those instances in which
portions are transferred between individuals within a
particular entity, group of customers, or consortium.
Section 1403. Permitted Acts
Section 1403 sets out a list of acts that are permitted
despite the language of the prohibition in section 1402. These
permitted acts are designed for public policy purposes, to
ensure that the statute does not have the unintended effect of
providing ownership of information itself, or impeding
appropriate and beneficial types of uses.
Section (a) permits an individual act of use or extraction
of information, done for the purpose of illustration,
explanation, example, comment, criticism, teaching, research or
analysis, if the act is reasonable under the circumstances. In
order to qualify for this exception, the amount taken must be
appropriate and customary for the purpose for which it is
taken, ensuring that the exception cannot serve as a pretext
for the unnecessary taking of the entire collection.
As introduced, Section 1403 (a) set out a permitted use
provision somewhat similar to the fair use test found in
Sec. 107 of the Copyright Act. While the addition of a ``fair
use'' like provision was welcomed by the Administration and
various user groups, at the subcommittee's March 18 hearing a
number of suggested changes to this language was proposed. In
response to those suggestions, Sec. 1403 (a) was amended in a
number of respects. Most important, the provision was amended
to eliminate certain conditions that, according to the
Administration and others, prevented it from being a true
balancing test as is the case under the copyright law's fair
use test.
As currently drafted, Sec. 1403 (a) provides defendants
with an affirmative defense to liability that would otherwise
attach under Sec. 1402. Section Sec. 1403 (a) first provides
that otherwise unlawful acts of making available or extracting
information are excused from liability if they are done for
purposes ``such as illustration, explanation, example, comment,
criticism, teaching, research or analysis'' and these acts are
``reasonable under the circumstances.''
Next, the provision lists five factors, based on the fair
use criteria contained in Sec. 107 of the Copyright Act, which
a court must consider in deciding whether a particular act of
making available or extraction is reasonable and thus shielded
from liability. There are five factors that a court must
consider when determining whether an act is reasonable under
the circumstances:
i. LThe extent to which the making available or
extraction is commercial or nonprofit.
ii. LThe amount of information made available or
extracted is appropriate and for the purpose.
iii. LThe good faith of the person making available or
extracting the information.
iv. LThe extent to which and the manner in which the
portion made available or extracted is incorporated
into an independent work or collection, and the degree
of difference between the collection from which the use
or extraction is made and the independent work or
collection.
v. LThe effect of the making available or extraction
on the primary or related market for a protected
collection of information.
Overall reasonableness is to be determined by consideration
of the totality of the circumstances. Accordingly, none of the
five factors is determinative or disqualifying. Rather, all the
factors are interrelated, and must be weighed together. This
means, for example, that even though a use might be commercial,
it would be permitted if evaluation of all the factors
indicated that it was nevertheless reasonable.
While the list of purposes in Sec. 1403 (a) is non-
exhaustive, the committee intends that courts should be
extremely reluctant to apply this provision to non-enumerated
purposes. This is so, in part, because the statutory list here
is broader than that under Sec. 107 of the Copyright Act. In
addition, unlike the copyright law, the Collections of
Information Antipiracy Act is a misappropriation statute where
market harm is an element of the cause of action that must be
proved by the plaintiff. Thus, a successful invocation of the
affirmative defense here excuses acts that have caused material
market harm. Therefore, it is imperative that courts confine
the application of this affirmative defense to the purposes
expressly set forth in the statute, or to purposes that are
similar to, and closely parallel, those specifically set forth
in Sec. 1403 (a) (2).
The fact that the user was acting pursuant to one of the
enumerated purposes does not automatically mean that the act
was a reasonable one for purposes of Sec. 1403 (a). Courts must
still engage in the balancing test set forth in the provision.
Additionally, while the statutory factors take into account
whether an entity is for-profit or nonprofit, both commercial
and noncommercial entities are eligible to qualify for the
affirmative defense.
The first factor looks to where the use or extraction falls
on the continuum between commercial and nonprofit. The focus
should be on the commercial or nonprofit nature of the use or
extraction, not solely on the nature of the entity making the
use or extraction. Under this first statutory factor, the key
distinction between profit-making and nonprofit actions is
whether the user gains financially from his or her exploitation
of the hard work and investment of the collection's owner.
Moreover, the issue is not whether the user is a profit-making
or nonprofit entity inasmuch as nonprofit entities can engage
in profit-generating activities. The issue is whether the
purpose of the particular act of making available or and
extraction is commercial or nonprofit. In any event, the fact
that a nonprofit institution or user commits the act does not
itself mean that the act is excused. Courts must still engage
in the full balancing test, and consider, for example, that
nonprofit institutions are an important primary or related
market for many collections of information.
The second factor focuses on the totality of the
circumstances related to the making available or extraction,
and allows the court to look at the appropriateness of the
amount extracted. The key issue for the court to consider is
whether the one who made available or extract from the original
collection took advantage of the situation at hand and took
more than what was reasonable. The crux of factor two is
whether the amount of information made available or extracted
exceeds what is appropriate for the user's asserted purpose.
Courts are instructed to ask whether the amount of the
information made available or extracted is more than is
necessary to achieve the user's asserted purpose. For example,
if the purpose of the making available or extraction is to
review or critique a collection of information regarding all
the ethnic restaurants in New York City, more than a quite
modest sampling of the contents of the collection would likely
cause this factor to weigh against a finding of reasonableness.
In evaluating the third factor, good faith, the court
should consider whether the person making the use or extraction
is in lawful possession of the copy of the collection from
which the use or extraction is made, or has authorized access
to the collection.
The fourth factor focuses on the degree of investment or
creativity added by the person making the use or extraction,
including the way in which the portion used or extracted is
incorporated into the independent work or collection. For
example, if the portion taken is integrated throughout the
independent work or collection, the use is more likely to be
considered reasonable than if the portion were simply added as
an appendix. It is important to note, however, because no one
factor is determinative, the fact that the portion is not
incorporated into an independent work or collection would not
disqualify the user from invoking the exemption.
Courts should also consider the amount of information
extracted or made available. The greater the amount extracted
or made available, the more likely it is that the activity is
not ``reasonable'' under Sec. 1403 (a). In addition, the courts
must take into account the extent to which the information
extracted or made available remains essentially the same as
that presented in the protected collection of information. The
greater the number of changes made by the user to the extracted
information, the more likely that the extraction or making
available is reasonable.
The fifth factor is designed to ensure that courts examine
whether the person making the use or extraction has affected
the primary or related market for a protected collection of
information. This factor allows the a court to directly
consider the relationship between the amount appropriated and
the harm done to the market of the original collection. The
greater the harm, the more this factor will weigh against the
defendant's affirmative defense.
This section further sets an outside limit for what acts
may be considered reasonable. It makes clear that use or
extraction is not permitted if the used or extracted portion is
offered or intended to be offered for sale or otherwise in
commerce and is likely to serve as a market substitute for all
or part of the collection from which the use or extraction is
made. This provision acts as a safety valve, permitting a court
to find acts reasonable despite their failure to qualify for a
specific exception.
Subsection (b) seeks to alleviate the concerns expressed by
members of the research, scientific, and university communities
that any new protection for collections of information would
hinder their ability to carry on basic research. The subsection
recognizes the value and importance of nonprofit educational,
scientific and research purposes, permitting the extraction or
use of information for such purposes as long as doing so does
not directly harm the actual market for the original product or
service. Ordinarily such uses will not cause market harm; it is
typically where the user is a member of the intended market for
the collection that the bill's prohibition would be called into
play. The act also supplements this limitation by providing
special relief for nonprofit educational, scientific or
research institutions, libraries and archives, from substantial
civil and criminal liability under the Act. As described below,
such an institution is exempt from criminal liability and
entitled to a reduction or remittal of monetary relief for good
faith conduct, and may also obtain attorney's fees and costs
when sued in bad faith.
This provision also seeks to maintain the status quo in
relation to how academic institutions use market quotations.
Securities and futures markets and clearing organizations have
traditionally made available portions of their collections of
information available to academics and researchers and will
continue to do so under the belief that such activity is in the
pubic interest to do so. For example, a university professor
could not open an account with a brokerage firm which grants
access to real time quotations and subsequently disseminate
those quotations university wide to the extent that he or she
replicate a real time service. Such activity would fall outside
of the permitted acts under this subsection.
Subsection (b) clarifies that no person shall be restricted
from extracting or using information for nonprofit educational,
scientific, or research purposes, so long as such use does not
directly harm the actual market for the product or service
referred to in section 1402. This provision bars the producer
or owner of a collection of information from seeking
compensation for damage to related markets, or indirect damage
to primary markets, against nonprofit educational, scientific,
or research entities.
Subsection (c) defines ``individual act'' to mean ``an act
that is not part of a pattern, system, or repeated practice by
the same parties, or parties acting in concert with respect to
the same collection of information or a series of related
collections of information.''
Subsection (c) makes clear that the extraction or use of
individual items of information is not prohibited. This is
crucial in establishing that this legislation does not allow
the producer of a collection to ``lock up'' individual pieces
of information contained in the collection. The second sentence
ensures that a single item in a collection cannot be considered
either quantitatively or qualitatively substantial so as to
give rise to liability under section 1402, even if it is in
itself a valuable copyrighted work. On the other hand, this
subsection would not excuse the extraction or use of many
individual items in a repeated or systematic way, in order to
evade the prohibition against extraction of a substantial
portion.
Subsection (d) further clarifies that the act does not
protect the information itself, apart from inclusion within a
collection. Others remain free to independently gather and use
the same information which is contained in another's collection
of information, whether for their own use or to produce a
competing collection.
Subsection (e) exempts the use of information for purposes
of verifying the accuracy of information independently gathered
by the verifier. This concept stems from the early ``sweat of
the brow'' copyright cases, which permitted subsequent
compilers to use earlier compilations to verify the fruits of
their own independent labor.\3\ Potential abuse is avoided by
the limitations in the subsection requiring the information to
be used only internally, not for distribution to others, and
for the sole purpose of verifying accuracy rather than adding
to or supplementing the information in the verifier's own
collection. The exemption will be particularly important for
scientists and other researchers, permitting them to use
collections of information produced by others to check the
results of their research.
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\3\ 7 See Illinois Bell Tel. Co. v. Haines & Co., 683 F.Supp. 1304
(N.D. III. 1988), aff'd, 905 F.2d 1081 (7th Cir. 1990), vacated and
remanded, 499 U.S. 944 (1991); Rural Tel. Serv. Co. v. Feist
Publications, Inc., 916 F.2d 718 (10th Cir. 1990).
---------------------------------------------------------------------------
It will also be important for the securities and
commodities industries, where it is a common practice to verify
the current market as part of placing an order for a security
or commodity. For example, investors frequently decide to
purchase investments through an online securities trading
system that they have followed by means of a delayed data
service. Typically, the online trading system will allow the
investor to verify electronically the last sale price or
prevailing quote for the investment as a last step before the
investor places the buy order--called a ``market check'' or
``market verification'' service. In today's marketplace,
providers of these services distribute millions of real-time
quotations each month, aiding individuals by allow them to
attain easy and quick access to accurate information on which
to decide whether to invest or trade in without unduly
burdening them with the costs that would be associated with
accessing a continual stream of real-time data. This subsection
seeks to maintain the status quo and not to supercede any
agreements with market verification services concerning the use
of market quotation information. This provision permits the
extraction of information for verification purposes unless it
harms the market for those collections of information. Nothing
in this subsection would permit delayed data subscribers to
avoid fees when they verify delayed data by retrieving a real
time price, a practice which is widespread within the industry.
This subsection is not intended to allow pirates to extract
and use real-time quotations of securities and commodities
markets and clearing organizations without the permission of
the securities and commodities markets that gather, organize
and maintain that information. Such activities are not
undertaken for legitimate accuracy verification purposes.
Section 1403(f) is premised on the committee's cognizance
of the essential role that the press plays in our
constitutional system. This subsection reflects the committee's
intent that the act neither inhibit legitimate news gathering
activities nor permit the labeling of conduct as ``news
reporting'' as a pretext for usurping a compiler's investment
in collecting information.\4\
---------------------------------------------------------------------------
\4\ Cf. Wainwright Sec. v. Wall Street Transcript Corp., 558 F.2d
91 (2d Cir. 1977).
---------------------------------------------------------------------------
For purposes of this subsection, ``news reporting'' should
be construed to mean dissemination of news to the public,
including sports scores and statistics, without regard to the
means through which it is disseminated, whether by print media
such as newspapers, periodicals, general interest magazines, by
television programs, or online. The definition of ``news'' is
intended to encompass a broad array of content occurring in any
location, including, without limitation, dissemination of
information related to current events, including sports,
entertainment, travel, science and technology. ``Time
sensitive'' information does not include statistics generated
from and/or facts occurring within the course of publically-
performed live events, shows or athletic contests.
The committee expects that news reporting will seldom fall
within the prohibition of section 1402, and therefore this
exemption will rarely need to be invoked. News articles
typically use particular items of information from a collection
rather than the collection as a whole. Even if substantial
portions of a collection are used, the use often will not
affect the market for the collection and therefore will not
implicate section 1402.
Section 1403(f) is applicable only if the extraction or use
of all or a substantial part of another's collection of
information is ``for the sole purpose of news reporting or
comment.'' Courts should be ``chary of deciding what is and
what is not news,'' \5\ and should examine, on a case-by-case
basis, whether a claim under this provision is justified. In
some circumstances, the amount taken from the collection may be
relevant to a determination of whether the defendant's sole
purpose was in fact news reporting. For example, the
republication of an entire collection of information as an
insert to a newspaper would not usually be excused by the mere
fact that the newspaper as a whole is engaged in news
reporting, or by the inclusion of an article related to the
subject matter of only one distinct portion of the collection.
Courts should, however, avoid second-guessing how much
information is appropriate to use for a valid news reporting
purpose.
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\5\ Harper & Row, Publishers, Inc. v. Nation Enterprises, Inc., 723
F.2d 197, 215 (2d Cir. 1983) (Meskill, J., dissenting), rev'd on other
grounds, 471 U.S. 539 (1985).
---------------------------------------------------------------------------
Among other purposes, this provision seeks to maintain the
status quo in relation to how news operations use market
quotations. While securities and futures markets and clearing
organizations have traditionally allowed news organizations to
use market data in a reasonable manner that legitimately
contributes to the news functions, this section would not allow
news organizations to replicate real time quote services which
harm the market for those collections of information. For
example, an entity which establishes itself as a news service
and opens an account with a brokerage firm which grants access
to real time quotations and subsequently disseminates those
quotations to the public to such an extent that it would
replicate a real time service would not be protected from the
prohibition contained in section 1402 by this subsection.
The final clause of this subsection, excepting from its
application a consistent pattern of competitive takings of
time-sensitive information, is intended to preserve the holding
in International News Service v. Associated Press,\6\ and is
therefore tailored to the specific facts in that case. It
should not be interpreted to have any other meaning, including
any implication as to the permissibility of conduct not falling
within its narrow scope.
---------------------------------------------------------------------------
\6\ 248 U.S. 215 (1918).
---------------------------------------------------------------------------
Subsection (g) establishes the principle permitting resale
or other sharing of a physical copy of a collection of
information once that copy has been lawfully obtained. It does
so by using language similar to that of the ``first sale''
doctrine in the Copyright Act, stating that the owner of a
particular lawful copy of all or part of a collection of
information may sell or otherwise dispose of that copy.
Subsection (h) establishes that no person shall be
restricted from ``making available or extracting genealogical
information for nonprofit, religious purposes,'' or from
``making available or extracting, for private, noncommercial
purposes, genealogical information that has been gathered,
organized, or maintained for nonprofit, religious purposes.''
``Genealogical information'' refers to data indicating the
date, time, or place of an individual's birth, christening,
marriage, death, or burial, the identity of an individual's
parents, spouse, children, or siblings, and other information
useful in determining the identity of ancestors.
Subsection (i) clarifies that the provisions of this bill
should not interfere with properly conducted investigations by
law enforcement. It establishes that nothing in this chapter
shall prohibit an officer, agent, or employee of the United
States, a State, or political subdivision of a State, or a
person acting under contract for such officer, agent or
employee, from making available or extracting information as
part of lawfully authorized investigative, protective or
intelligence activities.
Section 1404. Exclusions
Subsection (a) provides that the act's protection does not
extend to collections of information gathered, organized or
maintained by or for governmental entities, or any person
substantially funded by a governmental entity, their employees,
agents, or exclusive licensees or working under contract to
such government entity to achieve a government purpose or
fulfill a government obligation established by law or
regulation. It is designed to ensure that information collected
by the government at taxpayer expense will be made available
for public knowledge and basic research. The provision responds
to concerns that the bill would thwart access to government
information currently available to the public, especially to
the scientific, research and educational communities. The
exclusion is broader than the similar provision in section 105
of the Copyright Act; it applies to State and local governments
as well as the Federal Government, and covers collections
prepared for the government by independent contractors and
exclusive licensees as well as employees.
This subsection does not apply, however, to collections of
information gathered, organized or maintained by agents or
licensees of the government created outside the scope of their
agency, license, grant or contract, or by Federal or State
educational institutions in the course of engaging in education
or scholarship. When a party retained by the government to
perform one particular task also invests in producing databases
that add value to the information it has produced or collected
for the government, it should not be precluded from protection.
Similarly, educational institutions that happen to be
government owned should not be disadvantaged relative to
private institutions when producing databases unrelated to the
provision of regulatory government functions.
Section 1404 (a) excludes from protection under the Act
government collections of information, as the government needs
no financial incentive to create databases. In its testimony
before the subcommittee, the Department of Commerce stated
several concerns regarding the breadth of the provisions in
this section of the bill as introduced. The legislation was
amended by both the subcommittee and the committee, to exempt
from protection not only collections of information gathered,
organized or maintained by governments or by their employees,
agents, or exclusive licensees, but also data collection and
dissemination activities funded substantially with government
monies, and those performed under contract with government
entities.
The committee wishes to emphasize, however, with respect to
data collection and dissemination activities funded
substantially with government monies or performed under
contract, careful attention should be paid to assuring that the
purpose of the funding or contract was to achieve a government
purpose or fulfill a government obligation. The exclusion in
Section 1404 (a) should not serve as a means of depriving non-
government suppliers of information products and services vital
to the operations of government of the incentive to create,
maintain and organize such collections of information. Rather,
the purpose of Section 1404 (a) is to provide increased
opportunities and incentives for the public--including value-
added publishers--to seek greater access to the collections of
information that government entities within the Untied States
and its Territories gather, organize or maintain either
directly or through clear and specific non-exclusive
arrangements with contractors or recipients of government
funds.
For example, the American Medical Association's (``AMA'')
``Physician's Current Procedural Terminology'' (``CPT'') is a
compilation of over 7000 numeric codes with associated
descriptions for the reporting of the wide diversity of
procedures performed by physicians and other health care
providers. The CPT medical code was first published in 1966 to
meet the needs of physicians and industry to accurately report
medical procedures, and the AMA continues to spend millions of
dollars in the organization and maintenance of the CPT medical
code. The AMA sells CPT books to the public including
physicians, insurance companies and others, and licenses
numerous types of users including hospitals and commercial
software vendors to use CPT in various electronic media
including use over the Internet. In 1983, the AMA granted the
Health Care Financing Administration a royalty free license to
use CPT in its Medicare, Medicaid and related programs. The AMA
also licenses many other types of government users including
state worker's compensation agencies, the National Library of
Medicine, the Department of Defense and the Veteran's
Administration. CPT data is gathered, organized and maintained
for purposes other than those for which government agencies
contract with AMA to fulfill a government obligation, including
international use through license. In addition, when government
agencies publish the CPT medical code, they make it clear that
extraction and redistribution of the information is subject to
the terms and conditions established by AMA with its contracts
with those agencies. Clearly, government itself would incur
enormous costs to gather, organize and maintain the same type
of database, and a general public good is served by the
arrangement between AMA and government for general
availability, with reasonable limitations, of the CPT medical
code. It is precisely this type of arrangement which the
committee intends to encourage in the future and does not
believe that simply because agencies use nongovernment
collections of information to fulfill a governmental purpose or
obligation should remove the protections for such collections
that would otherwise be afforded under Section 1402.
Similarly, many nongovernment owners of collections of
information license use of their products and services to
government agencies for limited internal use. Such was the case
with the Justice Retrieval and Inquiry System (``JURIS'')
provided under contract to the Department of Justice by West
Publishing Company from 1983 until 1997. Although the
collection of information was provided under contract to
``achieve a government purpose,'' the agreement between the
Department and West stipulated that access to and distribution
of the collection of information was limited. Although certain
potential competitors of West sought to have JURIS made
publicly available under provisions of the Freedom of
Information Act, 5 U.S.C. Sec. 552, the courts have ruled that
the terms of the contract between the government and the owner
of the collection of information allowed the agency to properly
deny a request to make JURIS generally available, because JURIS
did not qualify as agency records and therefore was exempt from
disclosure under provisions of 5 U.S.C. Sec. 552(a)(4)(B). See
Tax Analysts v. United States Dept. of Justice, 913 F. Supp.
599 (D.C. Cir. 1997), aff'd, 107 F.3d 923 (D.D.C. 1996).
Thus, despite the fact that the AMA's CPT is subject to a
contract with government agencies to ``fulfill a government
obligation as established by law or regulation,'' the exclusion
in Section 1404(a) is not meant to reach these types of
arrangements. In determining what the governmental purpose
behind a contract governing collections of information, courts
should rely heavily on the agreement between the government and
the nongovernment party. Statutes tend to give broad authority
to enforce laws to agencies, but it is in the contract where
the motivation for such agreements is most readily revealed.
It should be noted that language added by the committee at
mark-up insures patient rights in confidential medical
information (Sec. 1405(h)). With this added protection, H.R.
354 would neither prohibit patients from accessing their own
medical records, nor does the bill change current law on
privacy of medical information and would not authorize any
entity to gather and disseminate confidential medical
information or records. The language added by the committee was
done so specifically for this purpose. Furthermore, this
committee does not intend for this legislation to effect any
state laws and pending federal legislation that serve to
protect confidential medical information and records of
patients.
The Act can only lay the groundwork for increasing access
to government collections of information. Government entities
must undertake the considerable tasks of assuring that publicly
funded data and facts are made available without restriction,
and ensuring that government information is stored and
archived. The evolution of digital technologies, including
advances in software capabilities and the reach of the
Internet, should ease government costs and labor of gathering,
providing and maintaining collections of information. The same
should hold true for the functions of storage and archiving,
whether the cost efficiencies associated with technology ease
the burden of government itself or those of libraries,
universities and research institutions to continue acting as
repositories for government collections of information.
Finally, this section recognizes that non-government
providers of government information may invest substantial
monetary or other resources in gathering, organizing
collections of information to which they have added value or
which may be incidental to any such activity funded by the
government. Any product or service in which such investment
occurs outside a contractual or agency relationship with the
government remains protected under this Act, even if it
contains a government collection of information, in whole or in
part, subject to the complete defense herein. In this manner,
non-government entities will be encouraged to make government
collections of information more widely available and in a
greater number of formats than government itself may be able to
achieve with the use of limited taxpayer funds. Likewise, any
Federal of State educational institution can protect its
collections of information when it is engaging in education or
scholarship, thereby providing further incentive to these
organizations to create, maintain and organize useful
collections of information.
The exclusion does not apply to information required to be
collected and disseminated by securities, futures exchanges and
clearing organizations operating under the Securities and
Exchange Act of 1934 or the Commodity Exchange Act. Under the
authority of both Acts, the dissemination of market data and
price quotes in collections of information supplied by
securities and commodities markets is regulated by the SEC and
the CFTC, respectively. Because of the fact that the Securities
Exchange Act of 1934 requires securities exchanges, securities
associations, securities information processors and clearing
organizations to register with the SEC, and the fact that the
Commodity Exchange Act requires commodities markets to register
with the CFTC, might cause the financial markets to be deemed
agents or exclusive licensees of the SEC and CFTC, this
language clarifies that the unique relationship between
government regulatory authorities and the securities and
commodities markets does not bar protection under this chapter
for the collections of information those markets produce.
Subsection (b) rules out protection under this chapter for
computer programs. Computer programs are already closely linked
with collections of information, and in the future will be even
more so. The search engine for a large collection of
information stored on CD-ROM is a type of computer program.
Similarly, computer programs referred to as ``intelligent
agents'' can gather information from the World Wide Web and
create a collection of information. Section 1404(b)(1) is
intended to make clear that notwithstanding the often close
relationship between a program and a collection of information,
computer programs are not protected under this chapter,
including programs that are used in the manufacture,
production, operation, or maintenance of a collection of
information, or any elements of the program that are necessary
for the program's operation.
At the same time, Section 1404(b)(2) makes clear that a
collection of information does not lose protection by virtue of
its inclusion within a computer program. For example, a set of
engineering constants contained in a program which performs
mathematical calculations using those constants remains a
protected collection of information, assuming it meets the
criteria of the Act. Section 1404(b)(2) recognizes that the
information in a data-file is distinct from the instructions
that perform operations on that information.
Subsection (c) ensures that this legislation will not
affect the functioning of the Internet by inhibiting the use of
functional building blocks of network information. It
explicitly excludes from protection products or services
incorporating a collection of information used to conduct
digital object online communications, such as Internet
specifications, or the registration or use of domain names or
addresses. This subsection does not exclude from protection
provided by the prohibition under Section 1402 of the Act
copyright management information (as defined in section 1202 of
Title 17), including digital object identifiers, or exclude
from this protection Metadata (i.e., collections of information
that describe digital content for the purpose of digitally
directing users of that content to such content). Further, this
subsection does not exclude collections of information that
facilitate the use of technological measures (as defined in
section 1201 of title 17) by copyright owners to protect their
copyrighted works in online communications.
Section 1405. Relationship to Other Laws
Section 1405 deals with the relationship of the Act to
existing legal rights or obligations relating to information.
Subsection (a) clarifies that nothing in this act will affect
the rights, limitations or remedies available to a party under
current law, other than State rights preempted under subsection
(b). For example, nothing in this act would negate the ability
of a party to receive copyright protection for a collection of
information should that collection qualify for protection as a
``compilation'' under the Copyright Act. Similarly, other laws
that may provide affirmative rights of access to information
would remain unaffected. This subsection establishes the
general principle of non-interference; subsequent subsections
provide specific examples of areas of law particularly relevant
to the coverage of this chapter.
Subsection (b) provides for preemption of State law to the
extent it provides equivalent rights in the same subject
matter. This subsection makes clear that Federal law controls
in this specific area, with State common law or statutes
dealing with misappropriation of collections of information, as
defined in section 1401, preempted by this Act. On the other
hand, State law providing different rights in collections of
information are not preempted. A collection subject to the
additional limitation of Sec. 1409 (c) is not protected by this
Act and protection of such a collection under State law is
therefore not preempted. The Act specifies that State laws
regarding trademark, design rights, antitrust, trade secrets,
privacy, access to public documents and the law of contract
shall not be deemed to provide equivalent rights and are not
preempted by the Act.
Subsection (c) addresses the relationship between the
protection provided by this Act and by copyright law. The first
sentence clarifies that protection under this chapter is
independent of, but complementary to, any copyright protection
that may subsist in a work of authorship that is contained in
or consists in whole or in part of a collection of information.
In evaluating a claim under this chapter, it is not relevant
whether copyright protection exists in the collection of
information or any component thereof. Rather, a court's task is
to determine whether the defendant has misappropriated all or a
substantial portion of the plaintiff's collection of
information in violation of this chapter--irrespective of
whether or not part or all of the contents of such collection
of information consists of copyrighted material. When a
defendant's use or extraction is also alleged to constitute
copyright infringement, the court should determine that issue
exclusively under the Copyright Act.
The second sentence of subsection (c) amplifies this
principle. Because a collection of information protected under
this chapter can consist, in whole or part, of one or more
copyrighted works, this sentence affirms that an original work
of authorship that is one of the items contained in a
collection of information does not receive greater protection
under this Act than it does under the copyright law. A work
that is itself a collection of information, however, may
receive greater protection against misappropriation under this
chapter than it would receive against infringement as a
compilation protected by copyright. Because the nature of the
protection is distinct, a court evaluating a claim under this
chapter need not distinguish between copyrightable and
uncopyrightable components of collections of information. If
the dissemination or extraction of all or a substantial part of
a collection of information violates this chapter, it is
irrelevant whether copyright subsists in any part of that
collection.
Subsection (d) deals with the relationship of this Act to
antitrust law. It states that this chapter will not limit
application of antitrust laws, including those laws regarding
single suppliers of products and services. The subsection is
intended to address the so-called ``sole source'' issue,
involving situations where the information within a collection
is not available elsewhere for others to obtain, giving the
producer of the collection a de facto monopoly over the facts
contained therein. The committee believes that an appropriate
response to potential abuse, to the extent it is not dealt with
by existing regulatory authorities overseeing certain
industries, can be found in the antitrust laws, which are
specifically designed to deal with such monopoly concerns. The
essential facilities doctrine in particular may be particularly
relevant to this issue.
Subsection (e) reaffirms the basic principle of freedom of
contract. It makes clear that nothing in this Act prevents the
producer of the collection of information from entering into
any licensing agreements or contracts concerning the use of the
collection. In today's marketplace, licensing and other
contractual mechanisms are widely relied upon in disseminating
collections of information. The committee intends to preserve
the ability to structure and enforce contractual arrangements
tailored to the particular circumstances of a transaction.
Subsection (f) provides that nothing in this chapter shall
affect the operation of provisions of the Communications Act of
1934, as amended. Consequently, nothing in this bill shall
affect the operations of sections 251, 252, 271 or 272 of the
Communications Act of 1934, as amended, and this bill shall not
have any effect on any existing right contained in the
Communications Act to extract or use information from a
collection of information for the purpose of obtaining access
to a network element, as such term is defined in section
153(29) of the Communications Act of 1934, as amended, (47
U.S.C. Sec. 153(29)), or otherwise to provide a
telecommunications service as provided for under the
Communications Act of 1934, as amended. Nor shall anything in
this chapter affect the operation of section 222(e) of the
Communications Act of 1934, as amended, (47 U.S.C.
Sec. 222(e)), or shall restrict any person from extracting or
using subscriber list information, as such term is defined in
section 222(f)(3) of the Communications Act of 1934 (47 U.S.C.
Sec. 222(f)(3)). This provision addresses the concerns of
companies which presently use such information to publish
independent directories separate from those published by the
telephone service provider.
Subsection (g) specifically addresses the concerns of some
on the issue of securities and commodities market information.
This provision affirmatively gives the Securities and Exchange
Commission and the Commodity Futures Trading Commission the
authority to alter the application of this chapter if it
adversely affects those issues, including making market
information available and the rules and regulations concerning
the information dissemination. It is the goal of the committee
not to have the provisions of this chapter interfere with the
smooth assembly and dissemination of market information.
Paragraph (3) goes on to make clear that nothing in this
chapter shall be construed to permit any person to make
available or extract realtime market information in a manner
that constitutes a market substitute for a real-time market
information service, provided on a real-time basis, unless
otherwise specifically authorized to. The committee is aware of
the intricate and complicated relationships regarding the
dissemination of market information and does not wish to upset
the balance or status of those relationships.
The public has a particular need for convenient and
reliable information about the financial industry. Reliable
information in the financial industry can only result from the
same commitment of resources to collect and select relevant
data. The most convenient way of arranging such information is
in the form of a financial index which, perhaps more so than
other arrangements of collection of information, can be easily
copied or downloaded and sold at a lower price than the
database producers of indexes charge. The same incentive must
be afforded, therefore, to database producers to produce
financial indexes that are accurate and convenient reflections
of the market as other database producers receive under this
bill. Those database producers who produce indexes as a result
of substantial investment are protected, which provides
incentive for them to produce the collections of information
most beneficial to economists, financial analysis, news
services, librarians, and the public in general.
Subsection (h) makes clear that nothing in this chapter
shall limit, impair, or annul in any manner the protections
under Federal and State law or regulation relating to the
collection or use or use of personally identifying information,
including medical information. The committee would also
reemphasize its interpretation under Section 1405 indicating
other laws that may provide affirmative rights of access to
information would remain unaffected.
Section 1406. Civil Remedies
This section sets out the civil penalties which may be
imposed for a violation of the act. Subsection (a) establishes
exclusive subject matter jurisdiction in United States district
courts. Subsection (b) gives courts the power to grant
permanent and temporary injunctions to prevent violations of
section 1402. An injunction may be served on a party anywhere
in the United States and may be enforced by any district court
having jurisdiction over the party.
Subsection (c) allows the appropriate court to impound
copies of contents of a collection of information extracted or
used in violation of this act. The court may also, as part of a
final judgement or decree, order the remedial modification or
destruction of all contents of a collection of databases
extracted or used in violation of this act. Both the injunction
and order of destruction may extend to all masters, tapes,
disks, diskettes, or other articles by means of which copies
may be produced.
Subsection (d) authorizes monetary damages for a violation
of this act. The plaintiff is entitled to recover any damages
it sustained as well as the defendant's profits not taken into
account in computing damages. The plaintiff is required to
prove the defendant's gross revenue only, while the defendant
has the burden of proving all elements of cost or deduction
claimed. The court may assess treble damages up to three times
the amount of actual damages. The court may also award
reasonable costs and attorney's fees to the prevailing party,
and shall award such costs and fees if the action was brought
in bad faith against a nonprofit educational, scientific or
research institution, library or archives.
Subsection (e) requires a court to reduce or remit entirely
monetary relief in any case where a defendant believed and had
reasonable grounds for believing that his or her conduct was
permissible under this Act, if the defendant was acting within
the scope of his or her employment by a nonprofit educational,
scientific, or research institution, library or archives.
The injunction and impoundment provisions of this act do
not apply to any action against the United States Government.
The relief provided under this section is available against a
State entity only to the extent permitted by law.
Subsection (h) states that an Internet service provider
would not be subject to liability under this chapter unless the
provider violates section 1402 willfully. The provision
addresses the concerns raised by some providers who may
innocently have their systems used by an individual who
misappropriates another's collection of information.
Section 1407. Criminal Penalties
Under paragraph (1), any person who willfully violates this
Act for direct or indirect commercial advantage or financial
gain, or causes loss or damages aggregating $100,000 or more in
any 1-year period, is punishable by a fine of not more than
$250,000 or imprisonment for not more than 5 years, or both.
Additionally, under paragraph (2), any person who willfully
violates this Act for direct or indirect commercial advantage
or financial gain or causes loss or damages aggregating $50,000
or more in any 1-year calendar period is criminally liable, and
is punishable by a fine of not more than $500,000 or
imprisonment for not more than 10 years, or both. A second or
subsequent offense under paragraph (1) is punishable by a fine
of not more than $500,000 or imprisonment for not more than 6
years, or both. Additionally, any person who commits an offense
under subsection (a)(1)(C) shall be fined not more than
$100,000 and imprisoned not more than 1 year, or both. Section
1407 does not apply to an employee or agent of a nonprofit
educational, scientific, or research institution, library or
archives, acting within the scope of his or her employment.
Like the similar limitations on civil remedies, this exception
is intended to avoid the chilling effect these substantial
penalties might have on legitimate public interest uses of
collections of information.
Paragraph (c) permits victims to submit an impact statement
that identifies the victims of the offense and the scope of the
injury and the loss suffered by the victim. Those persons
permitted to submit a victim impact statement are persons who
gathered, organized, or maintained the information affected by
the conduct involved in the offense and their legal
representatives.
Section 1408. Defenses to claims.
Section 1408 establishes a number of defenses which may be
raised in response to claims of violations of the protections
in section 1402. Paragraph (a) provides for an affirmative
defense where the person who made available or extracted all or
a substantial part of the disputed collection of information
could not reasonably determine when that collection was first
offered in commerce. This provision seeks to encourage the
producer of a collection of information to clearly identify
when a given portion of a collection is first placed in
commerce. The goal is to assist the user in knowing precisely
whether a given portion of a collection is within the fifteen
year term of protection from the time it was first placed in
commerce.
Subsection (b) states that in the case of a collection of
information into which all or substantial part of a government
collection of information is incorporated, no monetary relief
is available unless the collection contains some reasonable
notice identifying the government collection and the government
entity from which it was obtained. Subsection (b) provides a
partial defense to an action for a violation of section 1402 in
that no monetary relief shall be available to an owner of a
protected collection of information if: (1) that collection
incorporates government information after the effective date of
the Act and the owner fails to provide reasonable notice; and
(2) the owner identifies both the government collection of
information and the government entity from which such
information was obtained. The notice must be reasonable but not
exhaustive. In most cases, indicating the government entity--
e.g., ``National Oceanic and Atmospheric Administration''--
which produced the collection, or other such information which
would generally guide the user to its source will suffice. The
committee intends this provision to act as an additional
incentive to government to make information widely available by
assuring that all can know where government collections of
information may be obtained from the original government
source, once they appear anywhere in the market.
Paragraph (c) seeks to address the problem of government
information which available from only one source. The
provisions states that nonprofit educational, scientific, or
research institutions, library, or archives, or an employee or
agent of each, shall have a complete defense to violation of
this chapter is the following apply:
(A) The government information was not publically
available from the government or reasonably available
from any other source.
(B) The information was extracted for the purpose of
engaging in nonprofit educational, scientific, or
research activities and not for the purpose of offering
the information obtained for sale or otherwise in the
market.
(C) Prior to extracting the government information, the
person extracting it:
i. Made reasonable, good faith efforts to
obtain the information from other sources; and
ii. Made a written request to the person
asserting protection under this chapter, which
clearly identified the information to be
extracted and described the reasonable, good
faith efforts made under clause (i).
(D) The person claiming protection under this chapter
did not make the requested government information
available within a reasonable time, in the person's
chosen form, at the cost of the information's
identification, extraction and delivery.
Section (c) addresses concerns raised in testimony before
the subcommittee about access to government information
contained entirely, or as a substantial part of, another
collection of information protected under this Act. It provides
a complete defense to an action for a violation of section
1402, but only on a limited basis. The stipulations detailed in
this section reflect the committee's intent to balance a
limited need on the part of certain nonprofit entities to
extract and use government information contained in non-
government collections of information against the ability of
owners of protected collections of information to gain market
returns on their investment of substantial monetary or other
resources. Testimony has demonstrated that there may indeed be
narrow instances in which there is a clear need on the part of
nonprofit entities to gain access to such government
information. At the same time, however, the committee does not
believe it fair to overburden owners of protect collections of
information created before the date of enactment. Therefore,
Section 1408 (c) assures that owners are not required to
provide access to collections of government information, so
that such information may be used in a manner that might
diminish their ability to gain a return on their investments in
such collections of information will receive a shortened term
of protection against violations of section 1402.
The defense is available generally only to nonprofit
educational, scientific and research institutions and to their
legitimate agents and employees and only where the information
sought is not available from the government or any other
source. Educational, scientific and research institutions
comprise a large primary and related market for many
collections of information, and in order to avoid harming the
owners of such products and services, the committee believes
that requests for extraction must be granted only under extreme
circumstances.
Further, when any such institution or person wishes to
extract government information from a protected collection of
information, it must first make reasonable, good faith efforts
to obtain the information from other sources. Similarly, when
requesting extraction, it must describe such efforts to the
owner and identify clearly in writing the information to be
extracted.
Once these conditions are met, the owner of the protected
collection of information must make the information available
within a reasonable time after receiving a bona fide request.
The owner of the protected collection of information from which
the government information is extracted is entitled to recover
the cost of identifying, extracting and delivering the
requested item or items.
The form in which the government information is delivered
may, at the request of the nonprofit institution, employee or
agent, include the form in which the government information was
first obtained from the government entity. However, owners of
protected collections of information may need not fill requests
for extraction, if they cannot reasonably identify and extract
the requested information in the form it was first obtained
from the government entity, employee, agent or exclusive
licensee. This condition recognizes that in the last fifteen
years, private sector, value-added publishers have not always
segregated government information from larger, protected
collections of information in a manner that facilitates easy
identification or extraction of such information in whole or in
part. Nor have these owners ever been obligated to archive and
store government information and may not be able to retrieve or
deliver it as would be the case if disseminated by the
government itself.
Section 1404(c)(2) limits applicability of this defense to
those collections of information existing before the date of
enactment of the Act. This provision is intended to complement
the exclusion from protection contained in section 1404 (a).
Neither government nor the public at large is likely to create
new opportunities and incentives for greater access to the
collections of information that government gathers, organizes
or maintains or to the storage or archiving of such
information, if value-added publishers can be the point of
access of last resort. Neither will owners of protected
collections of information containing government information be
likely to risk investing in such products and services, if they
know that they will become de facto or de jure low-cost
providers of portions of their protected collections.
This subsection only applies to collections of information
existing before the effective date of this chapter and only if
the person claiming protection can reasonably identify and
extract the requested information in the form first obtained
from the government.
Section 1409. Limitations on actions.
This section provides that no criminal or civil proceedings
may be maintained unless it is commenced within 3 years after
the cause of action arises. An additional 15-year limit on
actions is established in paragraph (b). The fifteen years is
measured from the date of the first offer for sale in commerce,
subsequent to the investment of resources that qualified the
relevant portion of the collection for protection. The
investment in producing a collection is generally ongoing in
nature, and the point at which it becomes substantial may be
difficult to ascertain. Moreover, the facts as to what
investment was completed at what time may not be available to
the public. The visible act of an offer for sale is therefore
used in order to provide a definite starting point for the
fifteen years.
The fifteen year limitation on actions means that
protection will not be perpetual; the substantial investment
that is protected under the Act cannot be protected for more
than fifteen years. At the same time, however, the language of
this section allows new investments in an existing collection,
if they are substantial enough to be worthy of protection, to
themselves be protected, ensuring that producers have the
incentive to make such investments in expanding and refreshing
the collection.
By focusing on the investment that made the particular
portion of the collection that has been disseminated or
extracted or used eligible for protection, the provision avoids
providing ongoing protection to the entire collection every
time there is an additional substantial investment made in its
scope or maintenance. The last sentence of the provision makes
clear that a user remains free to take material directly from a
copy of a preexisting collection after its fifteen years of
protection has expired, regardless of any additional protection
extended due to subsequent investments in that collection.
Paragraph (d) places the burden of proof for an action
under this chapter on the plaintiff. The one asserting
protection has the burden of demonstrating that the portion of
the collection of information in dispute was first offered in
commerce no more than fifteen years prior to the violation.
The provisions of paragraphs (b) and (d), taken together,
respond to concerns that information older than 15 years would
not be distinguishable from information in which a substantial
investment was made within the preceding 15 years, thereby
resulting in de facto perpetual protection. However, it is
critical for the user of information collections to be able to
identify whether information they wish to make available or
extract falls within the 15 year protection of this chapter.
Together, paragraphs (b) and (d) are intended to assure that
users of collections of information are able to determine that
the information that they wish to make available or extract is
either protected under this chapter or no longer protected
under the 15 year term of protection provided by this chapter.
Section 3 of the Act makes several changes to Title 28 of
the United States Code which enable actions created by this
legislation to be maintained in Federal court. Additionally,
the section provides that the Register of Copyrights and the
Assistant Attorney General for Antitrust should conduct a joint
study and submit a joint report to Congress concerning the
issue of sole source information. The study and report should
be completed no more than 3 years from the date of enactment of
the legislation.
Section 4. Effective Date
The provisions of this Act take effect upon enactment and
are applicable to acts committed on or after that date, with
respect to collections of information existing on that date or
produced after that date. However, no person can be liable for
the use of information from a collection of information where
the information was lawfully extracted prior to the date of
enactment of this Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 17, UNITED STATES CODE
Chap. Sec.
Subject Matter and Scope of Copyright.............................
* * * * * * *
Collections of Information....................................1401
CHAPTER 14--COLLECTIONS OF INFORMATION
Sec.
1401. Definitions.
1402. Prohibition.
1403. Permitted acts.
1404. Exclusions.
1405. Relationship to other laws.
1406. Civil remedies.
1407. Criminal offenses and penalties.
1408. Defenses to claims.
1409. Limitations on actions.
1410. Study and report.
Sec. 1401. Definitions
As used in this chapter:
(1) Collection of information.--The term
``collection of information'' means information that
has been collected and has been organized for the
purpose of bringing discrete items of information
together in one place or through one source so that
persons may access them. The term does not include an
individual work which, taken as a whole, is a work of
narrative literary prose, but may include a collection
of such works.
(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) Primary market.--The term ``primary market''
means all markets--
(A) in which a product or service which
incorporates a collection of information is
offered; and
(B) in which a person claiming protection
with respect to that collection of information
under section 1402 derives or reasonably
expects to derive revenue, directly or
indirectly.
(4) Related market.--The term ``related market''
means any market--
(A)(i) in which products or services which
incorporate collections of information similar
to a product or service offered by a person
claiming protection under section 1402 are
offered; and
(ii) in which persons offering such similar
products or services derive or reasonably
expect to derive revenue, directly or
indirectly; or
(B) any market in which a person claiming
protection with respect to a collection of
information under section 1402 has taken
demonstrable steps to offer in commerce within
a short period of time a product or service
incorporating that collection of information
with the reasonable expectation to derive
revenue, directly or indirectly.
(5) Commerce.--The term ``commerce'' means all
commerce which may be lawfully regulated by the
Congress.
(6) Maintain.--To ``maintain'' a collection of
information means to update, verify, or supplement the
information the collection contains.
Sec. 1402. Prohibition
(a) Making Available or Extracting to Make Available.--Any
person who makes available to others, or extracts to make
available to others, all or a substantial part of a collection
of information gathered, organized, or maintained by another
person through the investment of substantial monetary or other
resources, so as to cause material harm to the primary market
or a related market of that other person, or a successor in
interest of that other person, for a product or service that
incorporates that collection of information and is offered or
intended to be offered in commerce by that other person, or a
successor in interest of that person, shall be liable to that
person or successor in interest for the remedies set forth in
section 1406.
(b) Other Acts of Extraction.--Any person who extracts all
or a substantial part of a collection of information gathered,
organized, or maintained by another person through the
investment of substantial monetary or other resources, so as to
cause material harm to the primary market of that other person,
or a successor in interest of that other person, for a product
or service that incorporates that collection of information and
is offered or intended to be offered in commerce by that other
person, or a successor in interest of that person, shall be
liable to that person or successor in interest for the remedies
set forth in section 1406.
Sec. 1403. Permitted acts
(a) Reasonable uses.--Notwithstanding section 1402, the
making available or extraction of information for purposes such
as illustration, explanation, example, comment, criticism,
teaching, research, or analysis is not a violation of this
chapter, if it is reasonable under the circumstances. In
determining whether such an act is reasonable under the
circumstances, all of the following factors shall be
considered:
(1) The extent to which the making available or
extraction is commercial or nonprofit.
(2) Whether the amount of information made
available or extracted is appropriate and for the
purpose.
(3) The good faith of the person making available
or extracting the information.
(4) The extent to which and the manner in which the
portion made available or extracted is incorporated
into an independent work or collection, and the degree
of difference between the collection from which the
information is made available or extracted and the
independent work or collection.
(5) The effect of the making available or
extraction on the primary or related market for a
protected collection of information.
(b) Certain Nonprofit Educational, Scientific, or Research
Uses.-- Notwithstanding section 1402, no person shall be
restricted from making available or extracting information for
nonprofit educational, scientific, or research purposes in a
manner that does not materially harm the primary market for the
product or service referred to in section 1402.
(c) Individual Items of Information and Other Insubstantial
Parts.--Nothing in this chapter shall prevent the making
available or extraction of an individual item of information,
or other insubstantial part of a collection of information, in
itself. An individual item of information, including a work of
authorship, shall not itself be considered a substantial part
of a collection of information under section 1402. Nothing in
this subsection shall permit the repeated or systematic making
available or extracting of individual items or insubstantial
parts of a collection of information so as to circumvent the
prohibition contained in section 1402.
(d) Gathering or Use of Information Obtained Through Other
Means.--Nothing in this chapter shall restrict any person from
independently gathering information or making available
information obtained by means other than extracting it from a
collection of information gathered, organized, or maintained by
another person through the investment of substantial monetary
or other resources.
(e) Making Available or Extraction of Information for
Verification.--Nothing in this chapter shall restrict any
person from making available or extracting information from a
collection of information within any entity or organization,
for the sole purpose of verifying the accuracy of information
independently gathered, organized, or maintained by that
person. Under no circumstances shall the information so used be
made available to others or extracted from the original
collection in a manner that harms the primary market or a
related market for the collection of information from which it
is made available or extracted.
(f) News Reporting.--Nothing in this chapter shall restrict
any person from making available or extracting information for
the sole purpose of news reporting on any subject (including
news gathering, dissemination, comment, and feature or general
interest reporting) unless the information so made available or
extracted is time sensitive and has been gathered by a news
reporting entity, and making available or extracting the
information is part of a consistent pattern engaged in for the
purpose of direct competition.
(g) Transfer of Copy.--Nothing in this chapter shall
restrict the owner of a particular lawfully made copy of all or
part of a collection of information from selling or otherwise
disposing of the possession of that copy.
(h) Genealogical Information.--
(1) In general.--Notwithstanding section 1402, no
person shall be restricted from--
(A) making available or extracting
genealogical information for nonprofit,
religious purposes; or
(B) making available or extracting, for
private, noncommercial purposes, genealogical
information that has been gathered, organized,
or maintained for nonprofit, religious
purposes.
(2) Definition.--For purposes of this subsection,
``genealogical information'' includes, but is not
limited to, data indicating the date, time, or place of
an individual's birth, christening, marriage, death, or
burial, the identity of an individual's parents,
spouse, children, or siblings, and other information
useful in determining the identity of ancestors.
(i) Investigative, Protective, or Intelligence
Activities.--Nothing in this chapter shall prohibit--
(1) an officer, agent, or employee of the United
States, a State, or a political subdivision of a State;
or
(2) a person acting under contract with an officer,
agent, or employee described in paragraph (1),
from making available or extracting information as part of
lawfully authorized investigative, protective, or intelligence
activities.
Sec. 1404. Exclusions
(a) Government Collections of Information.--
(1) Exclusion.--Protection under this chapter shall
not extend to collections of information gathered,
organized, or maintained by or for a government entity,
whether Federal, State, or local, including by any
employee or agent of such government entity, or any
person substantially funded by, exclusively licensed
by, or working under contract to such government to
achieve a government purpose or fulfill a government
obligation as established by law or regulation, if such
collections of information are gathered, organized, or
maintained within the scope of the employment, agency,
license, grant, contract, or funding. Nothing in this
subsection shall preclude protection under this chapter
for information gathered, organized, or maintained by
such a person that is not within the scope of such
employment, agency, license, grant, contract, or
funding, or by a Federal or State educational
institution in the course of engaging in education or
scholarship.
(2) Exception.--The exclusion under paragraph (1)
does not apply to any information required to be
collected and made available--
(A) under the Securities Exchange Act of
1934 by a national securities exchange, a
registered securities association, or a
registered securities information processor,
subject to section 1405(g) of this title; or
(B) under the Commodity Exchange Act by a
contract market, subject to section 1405(g) of
this title.
(b) Computer Programs.--
(1) Protection not extended.--Subject to paragraph
(2), protection under this chapter shall not extend to
computer programs, including, but not limited to, any
computer program used in the manufacture, production,
operation, or maintenance of a collection of
information, or any element of a computer program
necessary to its operation.
(2) Incorporated collections of information.--A
collection of information that is otherwise subject to
protection under this chapter is not disqualified from
such protection solely because it is incorporated into
a computer program.
(c) Digital Online Communications.--Protection under this
chapter shall not extend to a product or service incorporating
a collection of information gathered, organized, or maintained
to address, route, forward, transmit, or store digital online
communications, register addresses to be used in digital online
communications, or provide or receive access to connections for
digital online communications.
Sec. 1405. Relationship to other laws
(a) Other Rights Not Affected.--Subject to subsection (b),
nothing in this chapter shall affect rights, limitations, or
remedies concerning copyright, or any other rights or
obligations relating to information, including laws with
respect to patent, trademark, design rights, antitrust, trade
secrets, privacy, access to public documents, and the law of
contract.
(b) Preemption of State Law.--On or after the effective
date of this chapter, all rights that are equivalent to the
rights specified in section 1402 with respect to the subject
matter of this chapter and protected by this chapter shall be
governed exclusively by Federal law, and no person is entitled
to any equivalent right in such subject matter under the common
law or statutes of any State. State laws with respect to
trademark, design rights, antitrust, trade secrets, privacy,
access to public documents, and the law of contract shall not
be deemed to provide equivalent rights for purposes of this
subsection.
(c) Relationship to Copyright.--Protection under this
chapter is independent of, and does not affect or enlarge the
scope, duration, ownership, or subsistence of, any copyright
protection or limitation, including, but not limited to, fair
use, in any work of authorship that is contained in or consists
in whole or part of a collection of information. This chapter
does not provide any greater protection to a work of authorship
contained in a collection of information, other than a work
that is itself a collection of information, than is available
to that work under any other chapter of this title.
(d) Antitrust.--Nothing in this chapter shall limit in any
way the constraints on the manner in which products and
services may be provided to the public that are imposed by
Federal and State antitrust laws, including those regarding
single suppliers of products and services.
(e) Licensing.--Nothing in this chapter shall restrict the
rights of parties freely to enter into licenses or any other
contracts with respect to making available or extracting
collections of information.
(f) Communications Act of 1934.--Nothing in this chapter
shall affect the operation of the provisions of the
Communications Act of 1934 (47 U.S.C. Sec. 151 et seq.), or
shall restrict any person from making available or extracting
subscriber list information, as such term is defined in section
222(f)(3) of the Communications Act of 1934 (47 U.S.C.
Sec. 222(f)(3)).
(g) Securities and Commodities Market Information.--
(1) Authority of sec and cftc.--The Securities and
Exchange Commission shall have the authority to modify
the application of this chapter as it affects
securities issues over which it has jurisdiction, and
the Commodity Futures Trading Commission shall have the
authority to modify the application of this chapter as
it affects commodities issues over which it has
jurisdiction.
(2) Federal agencies and acts.--Notwithstanding
paragraph (1), nothing in this chapter shall affect--
(A) the operation of the provisions of the
Securities Exchange Act of 1934 (15 U.S.C.
Sec. 78a et seq.) or the Commodity Exchange Act
(7 U.S.C. Sec. 1 et seq.);
(B) the jurisdiction or authority of the
Securities and Exchange Commission or the
Commodity Futures Trading Commission; or
(C) the functions and operations of self-
regulatory organizations and securities
information processors under the provisions of
the Securities Exchange Act of 1934 and the
rules and regulations thereunder, including
making market information available pursuant to
the provisions of that Act and the rules and
regulations thereunder.
(3) Prohibition.--Notwithstanding any provision of
subsection (a), (b), (c), (d), (e), (g), (h), or (i) of
section 1403, nothing in this chapter shall permit the
making available, extraction, resale, or other
disposition of real-time market information except as
the Securities Exchange Act of 1934, the Commodity
Exchange Act, and the rules and regulations thereunder
may otherwise provide. Nothing in subsection (f) of
section 1403 shall be construed to permit any person to
make available or extract real-time market information
in a manner that constitutes a market substitute for a
real-time market information service (including the
real-time systematic updating of or display of a
substantial part of market information) provided on a
real-time basis.
(4) Definition.--As used in this subsection, the
term ``market information'' means information relating
to quotations and transactions that is collected,
processed, distributed, or published pursuant to the
provisions of the Securities Exchange Act of 1934 or by
a contract market that is designated by the Commodity
Futures Trading Commission pursuant to the Commodity
Exchange Act and the rules and regulations thereunder.
(h) Protection of Privacy.--Nothing in this chapter shall
limit, impair, or annul in any manner the protections under
Federal or State law or regulation relating to the collection
or use of personally identifying information, including medical
information.
Sec. 1406. Civil remedies
(a) Civil Actions.--Any person who is injured by a
violation of section 1402 may bring a civil action for such a
violation in an appropriate United States district court
without regard to the amount in controversy, except that any
action against a State governmental entity may be brought in
any court that has jurisdiction over claims against such
entity.
(b) Temporary and Permanent Injunctions.--Any court having
jurisdiction of a civil action under this section shall have
the power to grant temporary and permanent injunctions,
according to the principles of equity and upon such terms as
the court may deem reasonable, to prevent a violation of
section 1402. Any such injunction may be served anywhere in the
United States on the person enjoined, and may be enforced by
proceedings in contempt or otherwise by any United States
district court having jurisdiction over that person.
(c) Impoundment.--At any time while an action under this
section is pending, the court may order the impounding, on such
terms as it deems reasonable, of all copies of contents of a
collection of information made available or extracted in
violation of section 1402, and of all masters, tapes, disks,
diskettes, or other articles by means of which such copies may
be reproduced. The court may, as part of a final judgment or
decree finding a violation of section 1402, order the remedial
modification or destruction of all copies of contents of a
collection of information made available or extracted in
violation of section 1402, and of all masters, tapes, disks,
diskettes, or other articles by means of which such copies may
be reproduced.
(d) Monetary Relief.--When a violation of section 1402 has
been established in any civil action arising under this
section, the plaintiff shall be entitled to recover the actual
damages sustained by the plaintiff as a result of the violation
and any profits of the defendant that are attributable to the
violation and are not taken into account in computing the
actual damages sustained by the plaintiff. The court shall
assess such profits or damages or cause the same to be assessed
under its direction. In assessing profits the plaintiff shall
be required to prove defendant's gross revenue only and the
defendant shall be required to prove all elements of cost or
deduction claims. In assessing damages the court may enter
judgment, according to the circumstances of the case, for any
sum above the amount found as actual damages, not exceeding
three times that amount. The court in its discretion may award
reasonable costs and attorney's fees to the prevailing party
and shall award such costs and fees if it determines that an
action was brought under this chapter in bad faith against a
nonprofit educational, scientific, or research institution,
library, or archives, or an employee or agent of such an
entity, acting within the scope of his or her employment.
(e) Reduction or Remission of Monetary Relief for Nonprofit
Educational, Scientific, or Research Institutions and Employees
Thereof.--The court shall reduce or remit entirely monetary
relief under subsection (d) in any case in which a defendant
believed and had reasonable grounds for believing that his or
her conduct was permissible under this chapter, if the
defendant was a nonprofit educational, scientific, or research
institution, library, or archives, or an employee or agent of
such an institution, library, or archives acting within the
scope of his or her employment.
(f) Actions Against United States Government.--Subsections
(b) and (c) shall not apply to any action brought against the
United States Government.
(g) Relief Against State Entities.--The relief provided
under this section shall be available against a State
governmental entity to the extent permitted by applicable law.
(h) Relief Against Internet Service Providers.--(1) The
relief provided under this section shall not be available
against any Internet service provider unless such provider
violates section 1402 willfully.
(2) For purposes of this subsection, the term ``Internet
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.
Sec. 1407. Criminal offenses and penalties
(a) Violation.--
(1) In general.--Any person who violates section
1402 willfully either--
(A) for purposes of direct or indirect
commercial advantage or financial gain;
(B) causes loss or damage aggregating
$100,000 or more during any 1-year period to
the person who gathered, organized, or
maintained the information concerned; or
(C) causes loss or damage aggregating
$50,000 or more in any 1-year period to the
person who gathered, organized, or maintained
the information concerned,
shall be punished as provided in subsection (b).
(2) Inapplicability.--This section shall not apply
to any employee or agent of a nonprofit educational,
scientific, or research institution, library, archives,
or law enforcement agency, or to any employee or agent
of such an institution, library, archives, or agency
acting within the scope of his or her employment.
(b) Penalties.--(1) Any person who commits an offense under
subsection (a)(1)(A) shall be fined not more than $250,000,
imprisoned not more than 5 years, or both.
(2) Any person who commits a second or subsequent offense
under subsection (a)(1)(A) shall be fined not more than
$500,000, imprisoned not more than 10 years, or both.
(3) Any person who commits an offense under subsection
(a)(1)(B) shall be fined not more than $250,000, imprisoned not
more than 3 years, or both.
(4) Any person who commits a second or subsequent offense
under subsection (a)(1)(B) shall be fined not more than
$500,000, imprisoned not more than 6 years, or both.
(5) Any person who commits an offense under subsection
(a)(1)(C) shall be fined not more than $100,000, imprisoned not
more than 1 year, or both.
(c) Victim Impact Statement.--(1) During preparation of the
presentence report pursuant to Rule 32(c) of the Federal Rules
of Criminal Procedure, victims of the offense shall be
permitted to submit, and the probation officer shall receive, a
victim impact statement that identifies the victim of the
offense and the extent and scope of the injury and loss
suffered by the victim, including the estimated economic impact
of the offense on that victim.
(2) Persons permitted to submit victim impact statements
shall include--
(A) persons who gathered, organized, or maintained
the information affected by conduct involved in the
offense; and
(B) the legal representatives of such persons.
Sec. 1408. Defenses to claims
(a) Affirmative Defense When User Cannot Determine When
Collection First Offered In Commerce.--No monetary relief shall
be available for a violation of section 1402 if the person who
made available or extracted all or a substantial part of the
collection of information that is the source of the violation
could not reasonably determine whether the date on which the
portion of the collection that was made available or extracted
was first offered in commerce following the investment of
resources that qualified that portion of the collection for
protection under this chapter by the person claiming protection
under this chapter or that person's predecessor in interest was
a date more than 15 years prior to making available or
extracting the information.
(b) Notice.--In the case of a collection of information
into which all or a substantial part of a government collection
of information is incorporated after the effective date of this
chapter, no monetary relief shall be available for a violation
of section 1402 unless a statement appeared in connection with
the version of the collection of information from which the
information was made available or extracted, in a manner and
location so as to give reasonable notice, identifying the
government collection and the government entity from which it
was obtained.
(c) Access to Government Information.--
(1) In general.--In the case of a collection of
information that incorporates all or a substantial part
of a government collection of information, a nonprofit
educational, scientific, or research institution,
library, or archives, or an employee or agent of such
an institution, library, or archives, acting within the
scope of his or her employment, shall have a complete
defense to an action for a violation of section 1402
for extracting the government information, if all of
the following circumstances apply:
(A) The government information was not
publicly available from the government or
reasonably available from any other source.
(B) The information was extracted for the
purpose of engaging in nonprofit educational,
scientific, or research activities and not for
the purpose of offering the information
obtained for sale or otherwise in the market.
(C) Prior to extracting the government
information, the person who extracted it--
(i) made reasonable, good faith
efforts to obtain the information from
other sources; and
(ii) made a written request to the
person asserting protection under this
chapter, which clearly identified the
information to be extracted and
described the reasonable, good faith
efforts made under clause (i).
(D) The person claiming protection under
this chapter did not make the government
information available within a reasonable time
after receipt of the request, in any form of
that person's choosing, including the form in
which the government information was first
obtained from the government entity or its
employee, agent, or exclusive licensee, at the
cost of the information's identification,
extraction, and delivery.
(2) Applicability.--This subsection applies only to
collections of information existing before the
effective date of this chapter and only if the person
claiming protection under this chapter can reasonably
identify and extract the requested information in the
form first obtained from the government entity,
employee, agent, or exclusive licensee.
Sec. 1409. Limitations on actions
(a) Criminal Proceedings.--No criminal proceeding shall be
maintained under this chapter unless it is commenced within
three years after the cause of action arises.
(b) Civil Actions.--No civil action shall be maintained
under this chapter unless it is commenced within three years
after the cause of action arises or claim accrues.
(c) Additional Limitation.--No criminal or civil action
shall be maintained under this chapter for making available or
extracting all or a substantial part of a collection of
information that occurs more than 15 years after the portion of
the collection that is made available or extracted was first
offered in commerce following the investment of resources that
qualified that portion of the collection for protection under
this chapter. In no case shall any protection under this
chapter resulting from a substantial investment of resources in
maintaining a preexisting collection prevent any information
from being made available or extracted from a copy of the
preexisting collection after the 15 years have expired with
respect to the portion of that preexisting collection that is
so made available or extracted, and no liability under this
chapter shall thereafter attach to the making available or
extraction of such information.
(d) Burden of Proof on Plaintiff To Show Portion First
Offered In Commerce No More Than 15 Years Old.--No action for a
violation of section 1402 may be maintained unless the person
claiming protection under this chapter proves that the date on
which the portion of the collection that was made available or
extracted was first offered by that person or that person's
predecessor in interest in commerce following the investment of
resources that qualified that portion of the collection for
protection under this chapter was no more than 15 years prior
to the time when it was made available or extracted by the
defendant.
Sec. 1410. Study and report
No later than 3 years after the date of enactment of this
Act, the Register of Copyrights and the Assistance Attorney
General, Antitrust Division of the Department of Justice, shall
conduct a joint study and submit a joint report to Congress on
whether the defense provided for in section 1408(c) should be
expanded to include collections of information that do not
incorporate all or a substantial part of a government
collection of information where the extracted information is
not publicly available from any other source.
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TITLE 28, UNITED STATES CODE
* * * * * * *
PART IV--JURISDICTION AND VENUE
* * * * * * *
CHAPTER 85--DISTRICT COURTS; JURISDICTION
Sec.
1330. Actions against foreign states.
* * * * * * *
1338. Patents, plant variety protection, copyrights, mask works,
designs, [trade-marks,] trademarks, collections of
information, and unfair competition.
* * * * * * *
Sec. 1338. Patents, plant variety protection, copyrights, mask works,
designs, [trade-marks,] trademarks, collections of
information, and unfair competition
(a) The district courts shall have original jurisdiction of
any civil action arising under any Act of Congress relating to
patents, plant variety protection, copyrights and [trade-marks]
trademarks. Such jurisdiction shall be exclusive of the courts
of the states in patent, plant variety protection and copyright
cases.
(b) The district courts shall have original jurisdiction of
any civil action asserting a claim of unfair competition when
joined with a substantial and related claim under the
copyright, patent, plant variety protection or [trade-mark]
trademark laws.
* * * * * * *
(d) The district courts shall have original jurisdiction of
any civil action arising under chapter 14 of title 17, relating
to 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.
* * * * * * *
CHAPTER 87--DISTRICT COURTS; VENUE
Sec.
1391. Venue generally.
* * * * * * *
[1400. Patents and copyrights, mask works, and designs.]
1400. Patents and copyrights, mask works, designs, and collections of
information.
* * * * * * *
Sec. 1400. Patents and copyrights, mask works, and designs
Sec. 1400. Patents and copyrights, mask works, designs, and collections
of information.
(a) * * *
* * * * * * *
(c) Civil actions arising under chapter 14 of title 17,
relating to collections of information, may be brought in the
district in which the defendant or the defendant's agent
resides or may be found.
* * * * * * *
CHAPTER 91--UNITED STATES COURT OF FEDERAL CLAIMS
* * * * * * *
Sec. Patent and copyright cases
(a) * * *
* * * * * * *
(e) Subsections (b) and (c) of this section apply to
exclusive rights and mask works under chapter 9 of title 17 and
to protections afforded collections of information under
chapter 14 of title 17, and to exclusive rights and designs
under chapter 13 of title 17, to the same extent as such
subsections apply to copyrights.
* * * * * * *
