ART Act

Mr. President, I commend my esteemed colleagues in the Senate for passing S. 3021, the Family Entertainment and Copyright Act of 2004, which I introduced today with the senior Senator from Vermont. This important legislation is actually a package of several smaller intellectual property bills that the House and Senate have been working to enact over the past 2 years. This bill strengthens the intellectual property laws that are vital to the ongoing growth of our economy. In addition to important clarifications to U.S. intellectual property laws, this bill also contains the Family Movie Act, introduced by Representative Lamar Smith, the Chairman of the House subcommittee with jurisdiction over intellectual property legislation.

Title I of this Act, the Artists' Rights and Theft Prevention Act of 2003, the ART Act, contains a slightly modified version of S. 1932, authored by my colleagues Senators Cornyn and Feinstein, that passed the Senate by unanimous consent earlier this Congress. This bill will close two significant gaps in our copyright laws that are feeding some of the piracy now rampant on the Internet. First, it criminalizes attempts to camcord movies off of theater screens. These camcorded copies of new movies now appear on filesharing networks almost contemporaneously with the theatrical release

of a film. Several states have already taken steps to criminalize this activity, but providing a uniform Federal law, instead of a patchwork of State criminal statutes, will assist law enforcement officials in combating the theft and redistribution of valuable intellectual property embodied in newly-released motion pictures. Second, the bill will create a pre-registration system that will permit criminal penalties and statutory damage awards. This will also provide a tool for law enforcement officials combating the growing problem of music and movies being distributed on filesharing networks and circulating on the Internet before they are even released. Obviously, the increasingly frequent situation of copyrighted works being distributed illegally via the Internet before they are even made available for sale to the public severely undercuts the ability of copyright holders to receive fair and adequate compensation for their works.

Title II of this Act, the Family Movie Act of 2004, resolves some ongoing disputes about e legality of so-called ``jump-and-skip'' technologies that companies like Clearplay in my home state of Utah have developed to permit family-friendly viewing of films that may contain objectionable content. The Family Movie Act creates a narrowly- defined safe-harbor clarifying that distributors of such technologies will not face liability for copyright or trademark infringement, provided that they comply with the requirements of the Act. Throughout the 108th Congress, I have been working to resolve this issue with my colleagues in the Senate and several leaders in the House, including, most importantly Chairman Smith and Chairman Sensenbrenner. The Family Movie Act will help to end aggressive litigation threatening the viability of small companies like Clearplay who are busy creating innovative technologies for consumers that allow them to tailor their home viewing experience to their own individual or family preferences.

I thank my friend, the senior Senator from Arizona, for his and his staff's assistance in drafting this version of the legislation to resolve concerns that the House version might affect entirely unrelated disputes about commercial-skipping technology. Apparently, some were concerned that language in the House bill stating that this particular safe-harbor provision was not intended to resolve disputes about the legality of commercial-skipping technologies might be construed by courts as evidence that Congress believes that such technologies violate the Copyright Act. -

Courts do not, cannot, and should not construe the Copyright Act's safe harbors in this way. For example, when Congress created safe- harbor provisions for certain types of internet service providers, it did not imply that all others were violating the Copyright Act. Nevertheless, I am pleased that we were able to find language that satisfies all so that it is clear the Act's safe-harbor for family- friendly viewing technologies encode absolutely no judgment whatsoever about the proper resolution of entirely unrelated disputes about the legality of commercial-skipping technologies. It would have been tragic if we had allowed a special-interest dispute about advertising to deny parents access to technologies that give them and their children the opportunity to watch movies without being exposed to profanity or images of rape, sex or murder.

Title III of this Act, the National Film Preservation Act of 2004, will reauthorize the National Film Preservation Board and the National Film Preservation Foundation. These entities have worked successfully to recognize and preserve historically or culturally significant films, often by providing the grants and expertise that enable local historical societies to protect and preserve historically significant films for the local communities for which they are most important. This fine work will ensure that the history of the 20th century will be preserved and available to future generations. As a conservative Senator from a socially-conservative-state, I occasionally take a few swings at the movie industry for the quality and content of the motion pictures they are currently creating, but I will note for the record that I commend efforts to ensure that important artistic, cultural, and historically-significant films are preserved for future generations, and I commend the Senator from Vermont for his perseverance in reauthorizing federal funds to continue this important effort.

Title IV of this Act, the Preservation of Orphan Works Act, also ensures the preservation of valuable historic records by correcting a technical error that unnecessarily narrows a limitation on the copyright law applicable to librarians and archivists. This will strengthen the ability of librarians and archivists to better meet the needs of both researchers and ordinary individuals and will result in greater accessibility of important works. I applaud my colleague in the House, Representative Howard Berman of California, for his efforts on this bill and am pleased to see it included in this Senate package.

Title V of this Act, the Anticounterfeiting Act of 2004, amends our criminal and civil anticounterfeiting laws to ensure that these laws keep pace with the counterfeiters. Traffic in counterfeit copies of goods protected by American copyrights, patents or trademarks has become a multi-billion dollar drain on our economy. The proceeds of this illegal traffic are stolen from legitimate American companies and then used to fund other criminal enterprises. Unlike several of the other bills in this package that provide tools for combating music and movie piracy, the Anticounterfeiting Act is directed primarily toward combating counterfeiting practices that enable software piracy around the world.

To combat this counterfeiting, companies are using increasingly sophisticated authentication features to distinguish genuine, authorized copies of their products and to protect their customers and distributors. Now, the counterfeiters are fighting back by counterfeiting authentication features or by stealing legally produced authentication features and selling them to counterfeiters. The Anticounterfeiting Act of 2004 will impose criminal and civil penalties upon those who traffic in counterfeit or stolen authentication features. This will ensure that law-enforcement agencies and private rights-holders can halt criminal traffic in counterfeit or stolen authentication features before it even creates an illusion of authenticity that allows counterfeit goods to penetrate legitimate markets and endanger both the growth of our economy and the personal safety of our citizens.

Title VI of this Act, the Cooperative Research and Technology Enhancement Act of 2004, the CREATE Act, will create new opportunities to innovate when public institutions and private entrepreneurs combine their respective forms of expertise in collaborative, joint research efforts. This type of joint private-public research effort is well- suited to, in the words of President Lincoln, add ``the fuel of interest to the fire of genius in the production of new and useful things.'' As a result, we have long realized the enormous value of these joint research efforts, and we have long realized that their potential cannot be realized unless their participants can benefit from the intellectual property rights generated by such research.

Unfortunately, the literal language of Section 102(g) of the Patent Act suggests that nonpublic information known to some members of a private-public research team can constitute ``prior art'' that may make the final results of the team research obvious, and thus not patentable. Because non-public information does not usually constitute ``prior art'' under the Patent Act, the potentially disparate treatment of such information creates a disincentive for entrepreneurs and public institutions to collaborate in joint research efforts.

I believe that we must encourage, not discourage, public institutions and private entrepreneurs to combine their respective talents in joint research efforts. Indeed, Congress committed itself to this principle when it passed the Bayh-Dole amendments to the Patent Act. The CREATE Act will simply conform the present language of the Patent Act to the intent that has always animated it. I commend Chairman Smith and his staff for their efforts on this legislation and am pleased that it has been made part of this package of bills.

Before I close, I thank all my colleagues and their staff who made passage of this bill today possible. In particular, I commend staff of both Judiciary Committees, including my own staff, Tom Sydnor and Dave Jones, and also Susan Davies, Chip Roy, Rich Phillips, Dan Fine, Jeff Miller, Jonathan Schwantes, Jonathan Meyer, Brooke Roberts, Bill Bailey, Lee Carosi, Jim Hippe, Joseph Gibson, Bill Bailey, Blaine Merrit, David Whitney, Joe Keeley, Alec French, and Sampak Garg.

Finally, I must note that the bicameral, bipartisan approach to these bills in particular and to intellectual property issues in general is a model we should strive to achieve in the 109th Congress.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on Thursday, April 29, 2004, at 10 a.m., to conduct a hearing on ``Counter-Terror Initiatives and Concerns in the Terror Finance Program.''

Concurrent with the hearing, the Committee intends to vote on the nominations of the Hon. Romolo A. (Roy) Bernardi, of New York, to be Deputy Secretary of Housing and Urban Development; Mr. Dennis C. Shea, of Virginia, to be Assistant Secretary for Policy Development and Research, Department of Housing and Urban Development; and Ms. Cathy M. MacFarlane, of Virginia, to be Assistant Secretary for Public Affairs, Department of Housing and Urban Development.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, April 29, 2004, to hold a business meeting.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, April 29, 2004, at 2:30 p.m., to hold a hearing on Middle East Broadcasting.

Mr. President, I ask unanimous consent that the Committee on Governmental Affairs be authorized to meet on Thursday, April 29, 2004, at 10 a.m. to consider the nomination of Dawn Tisdale to be Commissioner, U.S. Postal Rate Commission.

Mr. President, I ask unanimous consent that the Committee on Government Affairs be authorized to meet on Thursday, April 29, 2004, immediately following a 10 a.m. nominations hearing, to consider the nominations of David Safavian to be Administrator for Federal Procurement Policy, Office of Management and Budget.

Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Thursday, April 29, 2004, at 10 am., in room 485 of the Russell Senate Office Building to conduct a hearing on S. 2301, a discussion draft bill to improve the management of Native American fish and wildlife and gathering, and for other purposes.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a markup on Thursday, April 29, 2004, at 9:30 a.m. in Dirksen Senate Building Room 226.

Agenda

I. Nominations: Henry W. Saad to be U.S. Circuit Judge for the Sixth Circuit; William Duane Benton to be United States Circuit Judge for the Eighth Circuit; Robert Bryan Harwell to be United States District Judge for the District of South Carolina; George P. Schiavelli to be United States District Judge for the Central District of California; and Curtis V. Gomez to be Judge for the District Court of the Virgin Islands.

II. Legislation:

S. 1735. Gang Prevention and Effective Deterrence Act of 2003 [Hatch, Chambliss, Cornyn, Feinstein, Graham, Grassley, Schumer].

S. 2107. A bill to authorize an annual appropriations of $10,000,000 for mental health courts through fiscal year 2009 [DeWine, Leahy].

S. 2192. Cooperative Research and Technology Enhancement (CREATE) Act of 2004 [Hatch, Feingold, Kohl, Leahy].

S. 1933. Enhancing Federal Obscenity Reporting and Copyright Enforcement (ENFORCE) Act of 2003 [Hatch, Cornyn, Feinstein].

S. 2237. Protecting Intellectual Rights Against Theft and Expropriation (PIRATE) Act of 2004 [Leahy, Hatch].

S. 1932. Artists' Rights and Theft Prevention (ART) Act of 2003 [Cornyn, DeWine, Durbin, Feinstein, Graham, Hatch, Kennedy].

H.R. 1561. United States Patent and Trademark Fee Modernization Act of 2004.

S. 1635. A bill to amend the Immigration and Nationality Act to ensure the integrity of the L-1 visa for intracompany transferees [Chambliss].

S. 1609. Parental Responsibility Obligations Met through Immigration System Enforcement (PROMISE) Act [Hatch, Cornyn].

S. 1129. Unaccompanied Alien Child Protection Act of 2003 [Feinstein, DeWine, Durbin, Edwards, Feingold, Kennedy, Kohl, Leahy, Schumer, Specter].

S. Res. 334. A resolution designating May 2004 as National Electrical Safety Month.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on April 29, 2004, at 2:30 p.m. to hold a closed mark-up on the fiscal year 2005 Intelligence Authorization Bill.

Mr. President, I ask unanimous consent that the Subcommittee on Oceans, Fisheries, and Coast Guard be authorized to meet on Thursday, April 29, 2004, at 10 a.m. on NOAA Oversight, in SR- 253.

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Thursday, April 22, 2004, at 9:30 a.m. on the U.S. Commission on Ocean Policy.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, April 22, 2004, at 9:30 a.m. to hold a hearing on Iraq Transition: Obstacles and Opportunities.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, April 22, 2004, at 1:30 p.m. to hold a hearing on Nominations.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, April 22, 2004, at 2:30 p.m. to hold a Subcommittee on East Asian and Pacific Affairs hearing on U.S.-China Relations: Status of Reforms in China.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, April 22, 2004, at 4 p.m. to hold a hearing on Nominations.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a markup on Thursday, April 22, 2004, at 11 a.m. in Senate Dirksen Building Room 226.

Agenda

I. Nominations: Henry W. Saad to be U.S. Circuit Judge for the Sixth Circuit; William Duane Benton to be United States Circuit Judge for the Eighth Circuit; Robert Bryan Harwell to be United States District of South Carolina; George P. Schiavelli to be United States District Judge for the Central District of California; and Curtis V. Gomez to be Judge for the District Court of the Virgin Islands.

II. Legislation: S. 1735. Gang Prevention and Effective Deterrence Act of

2003 [Hatch, Chambliss, Cornyn, Feinstein, Graham, Grassley, Schumer]; S. Res. 310. A resolution commemorating and acknowledging the dedication and sacrifice made by the men and women who have lost their lives while serving as law enforcement officers [Campbell, Hatch, Leahy]; H. Con. Res. 328. Recognizing and honoring the United States Armed Forces and supporting the goals and objectives of a National Military Appreciation Month; S. 2270. No Oil Producing and Exporting Cartels (NOPEC) Act of 2004 [DeWine, Durbin, Feingold, Grassley, Kohl, Leahy, Schumer, Specter]; S. 2107. A bill to authorize an annual appropriations of $10,000,000 for mental health courts through fiscal year 2009 [DeWine, Leahy]; S. 2192. Cooperative Research and Technology Enhancement (CREATE) Act of 2004 [Hatch, Feingold, Leahy]; H.R. 1561. United States Patent and Trademark Fee Modernization Act of 2004; S. 1933. Enhancing Federal Obscenity Reporting and Copyright Enforcement (ENFORCE) Act of 2003 [Hatch, Cornyn, Feinstein]; S. 2237. Protecting Intellectual Rights Against Theft and Expropriation (PIRATE) Act of 2004 [Leahy, Hatch]; and S. 1932. Artists' Rights and Theft Prevention (ART) Act of 2003 [Cornyn, Feinstein, Graham, Hatch].

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on April 22, 2004, at 2:30 p.m. to hold a closed business meeting.

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions, Subcommittee on Children and Families, be authorized to meet for a hearing on Parents Raising Children: The Workplace during the session of the Senate on April 22, 2004, at 10 a.m.

Mr. President, I ask unanimous consent that the Committee on the Judiciary Subcommittee on Immigration and Border Security be authorized to meet conduct a hearing on ``State and Local Authority To Enforce Immigration Law: Evaluating a unified approach for stopping terrorists'' on Thursday, April 22, 2004, at 2:30 p.m. in SD226

Witness List:

Panel I: Professor Kris W. Kobach, Former Counsel to the Attorney General, Professor of Law, University of Missouri-Kansas City School of Law, Kansas City, MO; E.J. Picolo, Regional Director, Florida Department of Law Enforcement, Ft. Myers, FL; Michelle Malkin, Journalist and Author of Invasion, Bethesda, MD; and David A. Harris, Balk Professor of Law and Values, University of Toledo College of Law, Toledo, OH.

Absolutely, on all points.

No, it is not. The definition of a motion picture exhibition facility includes the concept that the exhibition has to be ``open to the public or is made to an assembled group of viewers outside of a normal circle of a family and its social acquaintances.'' This definition makes clear that someone recording from a television in his home does not meet that definition. It is important to emphasize that the clause ``open to the public'' applies specifically to the exhibition, not to the facility. An exhibition in a place open to the public that is itself not made to the public is not the subject of this bill. Thus, for example, a university film lab may be ``open to the public.'' However, a student who is watching a film in that lab for his or her own study or research would not be engaging in an exhibition that is ``open to the public.'' Thus, if that student copied an excerpt from such an exhibition, he or she would not be subject to liability under the bill.

Of course not. The statute covers only a person who ``knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of a motion picture or other audiovisual work protected under Title 17, or any part thereof. . . .'' In other words, the defendant would have to be making, or attempting to make, a copy that is itself an audiovisual work, or make, or attempt to make, a transmission embodying an audiovisual work, as that term is defined in Section 101 of Title 17. As such, the Act would not reach the conduct of a person who uses a hearing aid, a still camera, or a picture phone to capture an image or mere sound from the movie.

This is a criminal provision under Title 18, not a copyright provision under Title 17. Accordingly, there is no fair use exception included. However, Federal prosecutors should use their discretion not to bring criminal prosecutions against activities within movie theaters that would constitute fair use under the copyright laws. The object of this legislation is to prevent the copying and distribution of motion pictures in a manner that causes serious commercial harm. This legislation is not intended to chill legitimate free speech.

Mr. President, I note that Senator Leahy today made a floor statement referencing important Intellectual Property legislation that unfortunately will not pass in the 108th Congress.

I agree completely with the Senior Senator from Vermont's view of the importance of these matters and I share his frustration that the bills are not moving forward because of matters not related to the substance of the legislation.

I joined with Senator Feinstein to introduce the ART Act, S. 1932, just over a year ago to help curtail the problem of piracy of films in movie theaters and to help stop the illegal distribution of pre- released copyrighted works. It is a good bill, but it will not become law despite having passed the Senate twice this year and enjoying overwhelming bipartisan support in the House.

Along with the ART Act, other valuable legislation such as the Family Movie Act, a bill that will help parents control the content of films and other entertainment their children see is

being held up. Good legislation, such as anti-counterfeiting and film preservation, is also not moving forward again, for reasons completely unrelated to the substance of the bills.

As disappointed as I am about this, I am encouraged by the good faith bipartisan work that has occurred among my staff and the staffs of my colleagues. I want to thank Senators Feinstein, Leahy, Hatch and Biden for their assistance and support, and mostly, I want to thank their staffs for their dedication, hard work and long hours devoted to this effort.

I especially would like to note Senator Leahy's diligence and dedication to this cause, and willingness to pass over legislation he introduced and believes to be important in deference to the greater cause of passing a larger bipartisan package that would have protected copyrighted works, but for the senseless and unneeded obstacles placed before it.

I am confident that when we take this legislation up in the 109th Congress, we will pass it and I look forward to working with these Senators and others to accomplish that goal.