|
Promoting Electrotechnology Careers and Public Policy |
September 8, 1998
The Honorable Orrin Hatch
United States Senate
Washington, DC 20510
Dear Senator Hatch:
On behalf of the Institute of Electrical and Electronics Engineers - United States of America (IEEE-USA), and its 220,000 U.S. electrical, electronics and computer engineers, we wish to comment on H.R. 2281 that has been placed on the Senate Calendar (Calendar No. 535). As you know, this bill was originally introduced to implement the World Intellectual Property Organization treaties with respect to copyright protection in an electronic era. It has now become an enormous package of extraneous and controversial legislation that has had no time for consideration in the Senate.
We believe that we can contribute a unique perspective to this bill since the IEEE-USA Intellectual Property Committee and the Committee on Communications & Information Policy are made up of practicing engineers, entrepreneurs and intellectual property attorneys who are U.S. IEEE members. These two IEEE-USA Committees have a special expertise in both intellectual property law and information technology. IEEE's membership consists of database and software developers, disseminators of valuable technical information who seek protection of their products as well as researchers and innovators who want to use the information products. Additionally, it should be noted that the IEEE is the world's largest technical publisher and has a great interest in seeking protection for its own databases, collections of information and copyrighted works in an electronic environment. We believe that it is essential for both our members and our organization to receive the best intellectual property protection possible. Intellectual property protection helps to protect our members' economic stability as well as the economic stability of the United States.
We are concerned that controversial bills, Collections of Information Antipiracy Act and the Vessel Hull Design Protection Act have been included in H.R. 2281. While the House of Representatives has held hearings on both of these bills, the Senate has not. We are especially concerned about the passage of the Collections of Information Antipiracy Act in its present form. On May 19, 1998, this bill passed under suspension of the House Rules which prohibits open debate or amendments from the House floor. Prior to May 19th many scientific and engineering associations, including IEEE-USA, urged members of Congress to take the bill off of "suspension" so that the bill could be properly debated.
Unfortunately, the scientific and engineering community was not successful and the bill passed under suspended rules despite widespread opposition. With respect to the bill, House Science Committee Ranking Member Rep. George Brown, stated on the House floor:
"Unfortunately it is a flawed and controversial attempt, which should not have come to the Floor on the Suspension Calendar. The problem is that the bill has not found a proper balance between protecting original investments in databases and the economic and social costs of unduly restricting and discouraging downstream applications of these databases--particularly in regard to uses for basic research and education" (Congressional Record, May 19, 1998, p. 3402)
We understand that the intent of the legislative language in Title V of H.R. 2281 is aimed at restoration of rights that may have been lost as a result of the Supreme Court's decision in Feist v. Rural Electric--which overruled "sweat of the brow" protection for non-creative collections of information. However, we believe that Title V of this bill does more than merely revive the "sweat of the brow" approach to prevent duplication for distribution. It provides databases with more protection than they had received prior to the Feist decision which we believe is inappropriate. We also believe that the Collections of Information Antipiracy Act would have a harmful effect upon our members--who are innovators of technology and researchers who use databases in their operations. Title V of H.R. 2281 would have the unintended effect of stifling the ability to seek knowledge, innovation, and essential research--all factors that are essential to the advancement and competitiveness of the United States.
IEEE-USA recommends a number of changes to the bill including a limit of three years on the term of the protection as well as substituting the prohibition of "use" and "extraction" with the prohibition of "unauthorized selling and distribution of data." We believe that both these changes would go a long way toward alleviating some of our members' concerns. To this point, these changes have not been properly addressed.
Specifically, IEEE-USA is concerned that the 15-year term of protection, in this bill, will renew perpetually. While we are staunch supporters of intellectual property harmonization and understand that the international community may adopt a 15-year term of protection for databases, we are troubled by the fact that Title V of H.R. 2281 will provide protection every time a database is enhanced. IEEE-USA does not believe this is sound intellectual property or economic policy. This does not encourage innovation or U.S. competitiveness.
Our second substantive concern focuses on the prohibition of "use" and "extraction" of data. Although the current bill states that the prohibition is limited to use and extraction in commerce, we believe that this could stifle database users from using data strictly for research reasons. In a March 16, 1998 letter to House Judiciary Subcommittee on Courts and Intellectual Property Chairman Coble and the entire Subcommittee, we recommended that the words "use" and "extraction" be replaced with a "prohibition of unauthorized selling or distribution." IEEE-USA believes this was the original intent of the legislation. As the world's largest publisher of technical data IEEE wants to ensure that its intellectual property is strongly protected-but not at the expense of stifling innovation, technology and research.
We urge you to consider our recommendations as a means of reaching a balance between the needs of proprietors who compile information and those who utilize the information for important research, innovation and publication.
IEEE-USA has been a long and ardent supporter of protection of useful articles. In fact, IEEE-USA testified at a June 6, 1996 House Science Subcommittee on Technology hearing on the Patent System and Modern Technology Needs: Meeting The Challenges of the 21st Century, in support of protection of useful articles. However, our recommendations were focused on assisting the many industries faced with the critical need to protect useful articles-not just the boat manufacturing industry. It concerns us that Title VI of H.R. 2281 only protects vessel hulls when countless innovators are without an inexpensive and timely form of protection for their useful articles.
IEEE-USA strongly believes that U.S. engineers and innovators are presently faced with a very serious dilemma. With the emergence of new and rapidly changing technologies (that may only have a useful life of up to 18-60 months) the patent system cannot respond quickly enough to provide the appropriate low cost and timely intellectual property protection needed to adequately protect the innovator--especially very small innovative entities. This is especially true for the U.S., which is known for the success of its small innovative entities--where entrance costs in a business are relatively low and innovation time is the premium ingredient.
Because of existing statutes and regulations, we believe that the USPTO presently has no way of unilaterally solving this dilemma with which our country is faced. On one hand, we should be proud of our nation's innovativeness, but we also must recognize the need for new intellectual property rights that fit the needs of our current technological society. The laws have not kept pace with rapidly changing technologies and will certainly not meet the needs of future technologies yet to be introduced into the market.
Therefore, IEEE-USA does emphatically believe that a new form of intellectual property protection is needed to address the needs of innovators and the rapidly changing markets-but not solely for vessel hulls. We urge you to consider a generic legislative proposal which we would be happy to supply you with. IEEE-USA's draft legislative proposal, The American Innovator's Protection Act, would provide protection to all industries-including the boat manufacturers.
Although IEEE-USA believes that the extensive compromises made between the ISP and content provider community went a long way toward improving S. 2037 and offering these groups copyright protection as well as safe harbors from copyright infringement liability, we believe the internet user community's concerns were not sufficiently addressed. IEEE-USA still has serious concerns about the lack of recourse for web developers and users who are wrongly accused of infringement and have incurred damages due to their denied access to a particular web page.
H.R. 2281 Sec 202 amending Section 512 (e) states:
"Any person who knowingly materially misrepresents under this section (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by the service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it."
IEEE-USA believes that Title II, Section 202 of H.R. 2281, as presently written, does not adequately provide recourse or protection to an accused party if they are wrongly accused of copyright infringement other than by a "knowing material misrepresentation." The accusers merely have to believe that someone is infringing their copyright in order to escape liability for all consequences to their actions under the bill. There is no duty to inquire, and the belief may be carelessly founded. The complainant still escapes liability. The copyright owner or his/her agent, under this bill, can contact the Internet Service Provider (ISP) and request that the ISP "take down" the accused material or the entire web site of an internet user. The ISP escapes all liability by "taking down" the accused person's web site immediately. Often times, a complainant may believe that someone is infringing and later they are proven to be incorrect. In this instance the accused user has incurred economic harm and has no effective recourse. It would be far more judicious and in line with the bill's intent if the falsely accused web developer has recourse. This bill in its present form would undoubtedly harm small businesses.
Therefore, IEEE-USA recommends that the complainant must:
sign an oath under penalty of perjury in accordance with 18 USC 1001 with respect to the notice. The complaining party shall supply the name and address of the complaining party's legal representative in reasonably sufficient detail to permit the user to contact the complaining party. The accusing party must have made a reasonable inquiry to find out whether the material under question is infringing.
have registered or have applied for registration of the subject copyrightable work under scrutiny at the time of notifying the ISP;
notify the Copyright Office that they have already notified or are about to notify the ISP of the alleged infringement on their ISP service; and
notify the ISP if the work has not been registered that an application has been filed.
We urge you to consider our recommended improvements to H.R. 2281 (that has been placed on the Senate Calendar No. 535) and would be happy to discuss any of these matters with you and your staff.
Sincerely,
John R. Reinert, D.M.
IEEE-USA President
The Institute of Electrical and
Electronics Engineers - United States of America
1828 L Street,
N.W., Suite 1202, Washington, DC 20036-5104
Office: (202)
785-0017 * Fax: (202) 785-0835 * E-mail: ieeeusa@ieee.org
| Top of Page | Policy Log | Public Policy Forum | IEEE-USA |
Last Update: Sept. 14, 1998
Staff Info Contact: Scott Grayson, s.grayson@ieee.org
Copyright © 1998, The Institute of Electrical and Electronics Engineers, Inc. Permission to copy IEEE-USA policy communications is granted for non-commercial uses with appropriate attribution, unless otherwise indicated.