AAP on the Hill / Issues: Copyright

March 26, 2003

Representatives Boucher and Lofgren reintroduce bills in the 108th Congress to amend the Copyright Act

As expected, at the beginning of the 108th Congress in January, Representatives Rick Boucher (D-VA) and Zoe Lofgren (D-CA) each reintroduced their respective proposed legislation from last year to amend the Copyright Act. In fact, Rep. Boucher’s bill, the “Digital Media Consumers’ Rights Act” (H.R.107), was the first technology-related legislation introduced in the new Congress. Both bills are identical to legislation Representatives Boucher and Lofgren introduced in the final weeks of the 107th Congress. Reps. Lofgren and Boucher are probably the most vocal and best-known Congressional critics of the Digital Millennium Copyright Act, which was enacted in 1998 without the limiting amendments that each of them unsuccessfully offered during consideration of the legislation in the House Judiciary Committee. Both style themselves as defenders of consumers’ rights with respect to “fair use” and “first sale” limitations on the rights of copyright holders, and both are outspoken critics of the DMCA’s prohibitions regarding the circumvention of access and copy controls used by copyright holders to protect their rights with respect to copyrighted works in digital formats. The respective bills propose different means of achieving essentially the same key results, to amend the DMCA to permit the circumvention of technological access and use controls for non-infringing purposes and to legalize tools that would facilitate such circumvention. Beyond addressing these matters, Lofgren’s bill, the proposed “Benefit Authors without Limiting Advancement or Net Consumer Expectations (“BALANCE”) Act” (H.R.1066), proposes to establish a “digital first sale” doctrine for online transmissions of copyrighted works; permit the making and use of copies of digital works for “archival purposes;” permit private performances or displays of digital works on any digital media device; and, make unenforceable any “nonnegotiable license terms” that apply to a digital work that is distributed to the public to the extent that such terms restrict or limit any limitation on the rights of copyright owners under copyright law. Lofgren, who has several major software companies among her constituents, excludes “computer programs” from the latter provision despite the fact that it is the software industry that most commonly imposes the kind of license terms that were otherwise targeted by her bill. Beyond the circumvention provisions, Boucher’s bill, cosponsored by Rep. John Doolittle (R-CA), proposes to address his criticism of copy-protected music CDs by empowering the Federal Trade Commission to make the advertising or sale of a “mislabeled” prerecorded music CD an “unfair and deceptive act or practice” if the CD is identified as an audio compact disc or fails to prominently disclose on its packaging that it is not an audio compact disc or might not be recordable or play properly on a personal computer or device capable of play or recording content from an audio compact disc. Although the bill was referred to the House Judiciary Committee with respect to its proposed amendments to the Copyright Act, the latter provision regarding the FTC has put that part of H.R.107 within the jurisdiction of the House Commerce Committee. Given the intense “turf” battles that have arisen between the two committees since their initial scrap over the DMCA nearly five years ago, it is likely that the split jurisdiction will only add to the obstacles that the bill will face from the copyright community if there is any effort to advance the legislation toward enactment. Thus far, no action has been taken on H.R. 107 or H.R. 1066 in the 108th Congress. AAP intends to work with the other copyright industries to block both bills and any other proposed legislation that would weaken effective copyright protection under the Copyright Act in general and the DMCA in particular.

For more information contact:

Gloria Romanelli
Ph: 202-220-4542
Email: gromanelli@publishers.org