House Passes Protections Against Digital and On-Line Theft
By Juliana Gruenwald, CQ Staff Writer
With limited debate, the House passed a major update of the nation's copyright laws Aug. 4 to include works produced for the digital age, sending the measure to a conference with the Senate.
By voice vote, the House passed the measure (HR2281), which would implement two international treaties aimed at improving copyright protection for digital works such as compact discs and computer software.
The bill would provide some protection from legal liability to Internet service providers for infringement that takes place on their networks without their knowledge.
HR2281's easy passage does not reflect the months of negotiations on the bill among copyright holders, librarians, educators, equipment manufacturers and Internet and on-line service providers or potential hurdles that may lie ahead in a conference with the Senate, which passed its own version (S2037) in May.
Among the issues that will have to be sorted out by House and Senate conferees is whether to keep legislation, included in a substitute version of HR2281 passed by the House, that would prohibit the use of most or part of information collections, such as databases, in a way that harms those collections' commercial marketability. The legislation (HR2652) was passed as a separate bill in May by the House, but the Senate has not acted on it.
House lawmakers cleared the way for HR2281's passage when the Commerce Committee approved a new version of the bill July 17, addressing librarians' concerns about the bill's effect on "fair use," a copyright principle that allows the limited use of products without permission for such purposes as education or research.
Concerns centered on a provision that would ban devices designed primarily to bypass technology aimed at preventing infringement. Librarians and some lawmakers said they feared the provision would create a "pay for use" system in which, for example, a student would be required to pay each time he copied a small portion of a work on the Internet for research.
The compromise worked out by the Commerce Committee calls for delaying the ban on circumvention devices for two years. During that time, the secretary of Commerce would be required to craft rules determining the effect the ban would have on fair use. The secretary could waive the ban in cases where fair use would be harmed. The rules and any waivers would be reviewed every three years after the initial two-year study.
One minor change that concerns copyright holders requires the secretary to determine the provision's impact on those who "gained initial lawful access" to a copyrighted work, such as by buying a subscription.
Copyright holders fear that the language would allow those who once held a subscription to an on-line magazine to continue to have access to that magazine long after their subscription expired.
Though many of the same groups that have been pushing for the digital copyright legislation also back the information collections legislation, they say they want to ensure that it not be an impediment to HR2281's passage.
The information collections bill was opposed by librarians, researchers and some educators when it passed the House. These groups said the bill would limit or place new burdens on their ability to use such collections.
"The express linkage of the very sweeping database legislation to [HR2281] cannot help the overall package's passage," said Adam M. Eisgrau, legislative counsel for the American Library Association.
House Judiciary Committee leaders also added a handful of other provisions to the substitute version of HR2281 passed by the House that are not as controversial, including one to create an undersecretary of Commerce for intellectual property. They also included a bill (HR2696) passed by the House in March to prevent some designs of shipbuilders from being copied by competitors for 10 years.
A spokeswoman for the Senate Judiciary Committee said the panel is still reviewing what was added to HR2281 and may hold a hearing on the information collections legislation.
Piracy on the Rise
The bill has been a priority for copyright owners ranging from movie producers to software manufacturers.
Digital technology has made it possible for thieves to make perfect copies of works. And the Internet has made it easy for copies to be sent all over the world. For example, there are numerous Web sites that provide access to pirated music.
More than 40 percent of software used worldwide is illegally copied, according to the Business Software Alliance. The group said this kind of theft costs software companies $11.2 billion a year in lost revenues.
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