"Digital Era Copyright Enhancement Act": Analysis of H.R. 3048

The "Digital Era Copyright Enhancement Act" (H.R. 3048), as described by its
co-sponsors Mr. Boucher and Mr. Campbell, would amend the Copyright Act, title
17 of the U.S. Code, to "update and preserve balance in the Copyright Act for the
21st Century; to advance educational opportunities through distance learning; [and]
to implement the World Intellectual Property Organization Copyright Treaty and
Performances and Phonograms Treaty."1

H.R. 3048 contains proposed amendments to the Copyright Act relating to fair
use, library reproduction, the first sale doctrine, distance learning, ephemeral
recordings, operational copying by computers, and "shrink-wrap" licenses. A new
chapter 12 would be added to title 17 U.S. Code enacting new legal protection
against circumvention of anti-copying technologies and against fraudulent removal
or alteration of copyright management information, to satisfy the obligations of two
articles in each of the two new WIPO treaties.

Background
The Internet, other computer networks, and advances in digital technologies
provide unparalleled opportunities for worldwide communications and economic
growth, in the judgment of most experts. It is also generally agreed that, in order
to tap this potential fully, many difficult technical and policy issues must be
confronted and resolved. One of these policy issues concerns the scope of protection
for copyrighted works against unauthorized copying or other unlawful use.

The general issues relating to Internet uses of copyrighted material are
implicated both by national legislative proposals and by two new international
treaties in the field of intellectual property.

At the national level, bills were introduced in the 104th Congress (S. 1284 and
H.R. 2441) to make changes in the copyright law related to Internet uses of
copyrighted works.2 Hearings were held on the bills, and private sector groups held
negotiating sessions under the auspices of the congressional oversight committees.
No legislation was passed.

At the international level, two new intellectual property treaties were created
by a diplomatic conference in Geneva, Switzerland, on December 20, 1996. The
World Intellectual Property Organization ("WIPO") Copyright Treaty covers
copyright protection for computer programs and databases (to the extent the latter are
"intellectual" works), and clarifies or creates rights relating to use of copyrighted
works over the Internet and in digital, electronic contexts.3 The second treaty, the
WIPO Performances and Phonograms Treaty, covers protection for performers and
producers of sound recordings (called "phonograms" internationally),4 and tracks
many of the rights extended to copyright subject matter by the WIPO Copyright
Treaty.

The WIPO treaties have been sent to the Senate for its advice and consent, and
the President has recommended implementing legislation that adopts a "minimalist"
approach to treaty implementation. S. 1121 and H.R. 2281, as originally introduced
in the First Session of the 105th Congress, embodied the Administration's proposals
for WIPO treaties implementation.

The original Administration bills were premised on the assumption that existing
United States law is largely consistent with the obligations of the treaties.
Consequently, S. 1121 and H.R. 2281 as introduced proposed amendment of U.S.
copyright law concerning only two new substantive issues, as well as certain
technical amendments. The Copyright Act would have been amended to provide new
legal protection i) against circumvention of anti-copying technologies, and ii) against
performance of certain acts relating to fraudulent removal or alteration of copyright
management information ("CMI").

The only other amendments originally proposed by S. 1121 and H.R. 2281 are
technical in nature and relate primarily to consequential adjustments to those
definitions and sections of the Copyright Act that affect treaty relationships and the
eligibility of foreign authors to claim U.S. copyright.

Subsequent to the introduction of the Administration's implementation bills,
two other WIPO implementation bills were introduced. S. 1146 and H.R. 3048
contain many common provisions, but they are not companion bills.5 They differ
from the original Administration bills substantially, both with respect to the issues
addressed and in the legislative solutions for the common issues covered by all four
bills. Unlike the original Administration bills (S. 1121 and H.R. 2281), S. 1146 and
H.R. 3048 propose amendments of the Copyright Act concerning many of the
Internet or National Information Infrastructure ("NII") copyright issues such as fair
use, library reproduction, ephemeral copying, distance learning, and operational
copying by computers. A separate bill, H.R. 3209, addresses only the online service
provider copyright liability issue.

In the most recent developments, the House Judiciary Committee, on April 1,
1998, approved H.R. 2281 as amended,6 and the Senate Judiciary Committee, on
May 6, 1998, approved a new bill, S. 2037, which is the successor to S. 1121.7 The
Senate passed S. 2037, with a few essentially technical amendments, on May 14,
1998, by a vote of 99-0.

On March 31, 1998, representatives of copyright owners and online service
providers had reached an agreement concerning the issue of OSP copyright liability.
Based on this agreement, the House Judiciary Committee essentially combined H.R.
2281 with a revised version of H.R. 3209 and reported the bill as H.R. 2281. As
revised, H.R. 2281 only partly reflects the private sector agreement on OSP liability.
Additional elements of the agreement will reportedly be added to H.R. 2281 by
means of a House Floor amendment.8 At the same mark-up session, the House
Judiciary Committee rejected a series of amendments to H.R. 2281 along the lines
of the proposals in H.R. 3048.

The new Senate bill, S. 2037, contains the amendments made to H.R. 2281 plus
the full private sector agreement on OSP copyright liability and other amendments
addressing additional copyright policy issues, including changes in the circumvention
of anti-copying measures provisions, new provisions on library reproduction of
copyrighted works, new provisions on ephemeral recordings, and other matters.


Endnotes

1
Legislative purposes clause of the bill as introduced on November 13, 1997.
2
The bills in the 104th Congress tracked the recommendations of a Working Group on
Intellectual Property, which was part of the White House Information Infrastructure Task
Force. The Report of the Working Group was published in September 1995. Department
of Commerce, Intellectual Property and the National Information Infrastructure, Report of
the Working Group on Intellectual Property Rights of the Information Infrastructure Task
Force.
3
For an analysis of this Treaty, see, D. Schrader, World Intellectual Property Organization
Copyright Treaty: An Overview, CRS Report No. 97-444A.
4
For an analysis of this treaty, see D. Schrader, World Intellectual Property Organization
Performances and Phonograms Treaty: An Overview, CRS Report No. 97-523 A.
5
H.R. 3048 and S. 1146 contain the same proposals relating to fair use, library
reproduction, distance learning, ephemeral recordings, operational reproduction by
computers, and protection against removal or alteration of CMI. The provisions of these
bills on protection against circumvention of anti-copying technologies are also virtually
identical, except that the definition of "effective technological measure" differs slightly.
H.R. 3048 contains amendments relating to the first sale doctrine and "shrink-wrap" licenses
not found in S. 1146. H.R. 3048 does not contain any provisions on online service provider
liability whereas Title I of S. 1146 addresses this issue. Finally, H.R. 3209 deals only with
the online service provider liability issue. A revised version of H.R. 3209 was added to H.R.
2281 at a House Judiciary Committee mark-up on April 1, 1998.

6
The written report of the Committee on the Judiciary to accompany H.R. 2281 has not
been filed by May 18, 1998, the date of this CRS Report.
7
S. REP. NO. 105-190, 105th Cong., 2d Sess. (Filed May 11, 1998).
8
"Industry Groups Reach Accord on Online Copyright Liability Legislation," 55 BNA
Patent, Trademark & Copyright Jour. 557-558 (April 9, 1998).