HOUSE JUDICIARY LIKELY TO OFFER DIGITAL COPYRIGHT BILL
Primary House committee on intellectual property is likely this year to introduce bill addressing digital copyright issues and content protection, House Internet Caucus Chmn. Boucher (D-Va.) said Fri. He told reporters after speech at intellectual property conference that he had met Thurs. with House Judiciary Committee leaders, who had been poring over 140 public comments submitted recently on copyright and content protection with digital works. Boucher said no decision was made at meeting as to specific approach to issue, but there “was a consensus that a bill should be introduced this Congress.”
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House Judiciary Committee Chmn. Sensenbrenner (R-Wis.) first raised possibility of new copyright bill at NAB show in Las Vegas, where he predicted measure that would amend the Digital Millennium Copyright Act (DMCA) of 1998. Copyright protection has moved to forefront since Senate Commerce Committee Chmn. Hollings (D-S.C.) introduced bill earlier this year (S-2048) that could lead to installation of govt.- mandated digital rights management (DRM) in any digital device. Boucher told conference hosted by New America Foundation and Public Knowledge Fri. that bill’s introduction “created a huge backlash.” He said “people woke up to the very real possibility that government might inhibit digital technologies.”
Referring to comments received by Judiciary Committee on copyright issues, particularly protection and distribution of digital music, Boucher said “the common theme was that there was no consensus.” However, he said “we don’t have to have a broad commonality to legislate.” Last Aug., Boucher introduced Music Online Competition Act (MOCA) with Rep. Cannon (R-Utah) that sought to allow music distribution on Internet independent of studios. Bill hasn’t gained much momentum, and Boucher said he hoped some of MOCA’s provisions could be included in committee’s new bill. Unlikely to be included, he conceded, was nondiscriminatory licensing provision that would allow new Napster, for example, to have access to same license as studio gave to competing site.
Boucher said he hoped to circulate to colleagues this week draft language on his long-promised bill to amend Sec. 1201(a) of DMCA to allow circumvention of copy-protection systems if aim was to exercise fair use rights. Boucher has promised this bill since last fall, but said Fri. he hoped to introduce it within “weeks.” He acknowledged to reporters, however, that “this is not a product that is going to get enacted into law this year.” Instead, he hoped it would further dialog on DMCA and fair use rights, and perhaps could become law in next Congress.
One objection to Boucher’s proposed bill on Capitol Hill is that it does not define fair use clearly. He also said he was planning bill he called “a kind of consumer’s Bill of Rights” to affirm fair use rights and shift burden in courts to those seeking to prosecute against use of digital media. Asked whether bill might articulate specific digital fair use rights more clearly, Boucher said: “I'm not opposed to some sort of further delineation, but I'd prefer to rely on courts,” which have been defining fair use since Betamax case. He said if Congress did try to clear up “gray areas” of fair use, he feared “it won’t even be a month before something comes along that’s left out.”
Public Knowledge Pres. Gigi Sohn said Boucher had told her she could see creation in Congress of “Public Domain Caucus,” of which he would be “member of one.” Sohn said she co-founded Public Knowledge with David Bollier, dir. of New America Foundation’s Information Commons Project, to “fill a specific void” of voice for fair use and common domain of creative works. Conference’s 2 sponsors released 3 studies Fri., Why the Public Domain Maters, Trouble on the Endless Frontier (on restrictions to scientific information) and Saving the Information Commons. In final publication, Bollier and Tim Watts, pres. of Australian think tank OzProspect, argued for open standards, open access to Internet, shorter copyright terms, rollback of DMCA.
DMCA was roundly criticized by conference panelists, with Sohn confessing she didn’t “get it” in 1998 when she was working on Telecom Act implementation and issue of intellectual property protection in digital age surfaced in DMCA debate on Capitol Hill. She said at time intellectual property seemed “backwater issue,” something one had to take in law school. That’s not case anymore, she said, echoing Boucher in saying she saw rising awareness of importance of issue in Digital Age. N.Y.U. Prof. Siva Vaidhyanathan said DMCA shifted copyright realm from “protocol” system of handshake agreements to one of “controls” by copyright holders. U. of Pa. Prof. Arti Rai said software companies and others now were obtaining patents that courts formerly didn’t recognize, such as on business methods. She said one problem was that U.S. Patent & Trademark Office often wasn’t familiar with “prior art” or previous use of software innovation, so companies were being granted broad patents that limited future innovation by others for work that wasn’t even original.