Amendment to HR 1858 Offered by Rep. Billy Tauzin (R-LA).
Hearing of the House Telecom Subcommittee.
Re: HR 1858, a bill pertaining to protection for database developers.
Date: July 29, 1999.
Source: House Commerce Committee. Tech Law Journal created this document by scanning a paper copy, and converting into HTML.

Editor's Note: This amendment was approved by a unanimous voice vote.

AMENDMENT TO H.R. 1858
OFFERED BY MR. TAUZIN OR MR. MARKEY

Page 2, beginning on line 1, strike title I and insert the following:

TITLE I -- COMMERCE IN DUPLICATED DATABASES PROHIBITED

SEC. 101. DEFINITIONS.

As used in this title:

(1) DATABASE.---(A) The term "database" means a collection of a large number of discrete items of information that have been collected and organized in a single place, or in such a way as to be accessible through a single source, through the investment of substantial monetary or other resources, for the purpose of providing access to those discrete items of information by users of the database. Such term does not include works that are combined and ordered in a logical progression or other meaningful way in order to tell a story, communicate a message, represent an idea, or achieve a result.

(B) If a database is organized into discrete sections containing a large number of discrete items of information, each section may be treated as a database [begin page 2] if each such section meets the requirements of subparagraph (A).

(2) DUPLICATE OF A DATABASE.---A database is "a duplicate" of any other database if the database is substantially the same as such other database, as a result of the extraction of information from such other database.

(3) INFORMATION.---The term "information" means facts, data, or any other intangible material capable of being collected and organized in a systematic way, with the exception of works of authorship within the meaning of section 102 of title 17, United States Code.

(4) COMMERCE.---The term "commerce" means all commerce which may be lawfully regulated by the Congress.

(5) IN COMPETITION.---The term "in competition with" when used with respect to the sale or distribution of a database to the public means that the database---

(A) displaces substantial sales or licenses of the database of which it is a duplicate; and

(B) significantly threatens the opportunity to recover a reasonable return on the investment [begin page 3] in the collecting or organizing of the duplicated database.

(6) GOVERNMENT DATABASE.---The term "government database" means a database that---

(A) has been collected or maintained by the United States of America, any foreign government, or any agency or instrumentality thereof; or

(B) is required by Federal statute or regulation to be collected or maintained, to the extent so required.

SEC. 102. PROHIBITION AGAINST DISTRIBUTION OF DUPLICATES.

It is unlawful for any person, by any means or instrumentality of interstate or foreign commerce or communications, to sell or distribute to the public a database that---

(1) is a duplicate of another database that was collected and organized by another person; and

(2) is sold or distributed in commerce in competition with that other database.

SEC. 103. PERMITTED ACTS.

(a) COLLECTING OR USE OF INFORMATION OBTAINED THROUGH OTHER MEANS.---Nothing in this title shall restrict any person from selling or distributing to the [begin page 4] public a database consisting of information obtained by means other than by extracting it from a database collected and organized by another person.

(b) NEWS REPORTING.---Nothing in this title shall restrict any person from selling or distributing to the public a duplicate of a services provider database for the sole purpose of news reporting, including news gathering and dissemination, or comment, unless, the information duplicated is time sensitive and has been collected by a news reporting entity, and the sale or distribution is part of a consistent pattern engaged in for the purpose of direct, competition. The term

(c) LAW ENFORCEMENT AND INTELLIGENCE ACTIVITIES.---Nothing in this title shall prohibit an officer, agent, or employee of the United States, a State, or a political subdivision of a State, or a person acting under contract of such officers, agents or employees, from selling or distributing to the public a duplicate of a database as part of lawfully authorized law enforcement or intelligence activities.

(d) SCIENTIFIC, EDUCATIONAL, OR RESEARCH USES.---No person or entity who for scientific, educational, or research purposes sells or distributes to the public a duplicate of a database that has been collected or organized by another person or entity shall incur liability [begin page 5] under this title so long as such conduct is not part of a consistent pattern engaged in for the purpose of competition with that other person.

SEC. 104. EXCLUSIONS.

(a) GOVERNMENT INFORMATION.---

(1) EXCLUSION OF GOVERNMENT DATABASES.---Protection under section 102 shall not extend to government databases.

(2) INCORPORATED NONGOVERNMENT PORTIONS PROTECTED.---The incorporation of all or part of a government database into a non-government database does not preclude protection for the portions of services provider the non-government, database which came from a source other than the government database.

(3) AUTHORITY TO EXCLUDE ADDITIONAL GOVERNMENT-SUPPORTED DATABASES.---Nothing in this title shall prevent the Federal Government or a State or local government from establishing by law or contract that a database, the creation or maintenance of which is substantially funded by such Federal, State, or local government, shall not be subject to the protection afforded under this title.

(b) DATABASES RELATED TO INTERNET COMMUNICATIONS.---Protection under section 102 does not extend [begin page 6] to a database incorporating information collected or organized---

(1) to perform the function of addressing, routing, forwarding, transmitting, or storing Internet communications; or

(2) to perform the function of providing or receiving connections for Internet communications.

(c) COMPUTER PROGRAMS.

(1) PROTECTION NOT EXTENDED.---Subject to paragraph (2), protection under section 102 shall not, extend to computer programs, including any computer program used in the manufacture, production, operation, or maintenance of a database, or any element of a computer program necessary to its operation.

(2) INCORPORATED DATABASES.---A database that is otherwise subject to protection under section 102 is not disqualified from such protection solely because it resides in a computer program, so long as the database functions as a database within the meaning of this title.

(d) NONPROTECTABLE SUBJECT MATTER.---Protection for databases under section 102 does not extend to the sale or distribution to the public of a duplicate of any [begin page 7] individual idea, fact, procedure, system, method of operation, concept, principle, or discovery.

(e) SUBSCRIBER LIST IN INFORMATION.---Protection for databases under section 102 does not extend to subscriber list information within the meaning of section 222(f) of the Communications Act of 1934 (47 U.S.C. 222(f)). Nothing in this subsection shall affect the operation of section 222(e) of such Act, under which a telecommunications carrier provides, upon request, subscriber list information for the purposes of publishing directories in any format under nondiscriminatory and reasonable rates, terms, and conditions.

(f) LEGAL MATERIALS.---Protection under section 102 shall not extend to primary legal material, including court opinions, statutes, codes, regulations, or administrative agency decisions, from any Federal, State, or local jurisdiction, unless such materials were permanently available on an interactive computer network without restriction in an official publicly accessible electronic form without charge, at the time the extraction occurred.

SEC. 105. RELATIONSHIP TO OTHER LAWS.

(a) OTHER RIGHTS NOT AFFECTED.---Subject to subsection (b), nothing in this title shall affect rights, limitations, or remedies concerning copyright, or any other rights or obligations relating to information, including [begin page 8] laws, with respect to patent, trademark, design rights, antitrust, trade secrets, privacy, access to public documents, misuse, and the law of contract.

(b) PREEMPTION OF STATE LAW.---On or after the effective date of this Act, no State law that prohibits or that otherwise regulates conduct that is subject to the prohibitions specified in section 102 shall be effective to the extent that such State law is inconsistent with section 102.

(c) LICENSING.---Subject to the provisions on misuse in section 106(b), nothing in this title shall restrict the rights of parties freely to enter into licenses or any other contracts with respect to the use of information.

(d) COMMUNICATIONS ACT OF 1934.---Nothing in this title shall affect the operation of the Communications Act of 1934 (47 U.S.C. 151 et seq.) or the authority of the Federal Communications Commission.

SEC. 106. LIMITATIONS ON LIABILITY.

(a) SERVICE PROVIDER LIABILITY.---A provider of telecommunications services or information services (within the meaning of section 3 of the Communications Act of 1934 (47 U.S.C. 153)), or the operator of facilities therefor, shall not be liable for a violation of section 102 if such provider or operator did not initially place the database that is the subject of the violation on a system or network controlled by such provider or operator.

[begin page 9]

(b) MISUSE.---A person shall not be liable for a violation of section 102 if the person benefiting from the protection afforded a database under section 102 misuses the protection. In determining whether a person has misused the protection afforded under this title, the following factors, among others, shall be considered:

(1) the extent to which the ability of persons to engage in the permitted acts under this title has been frustrated by contractual arrangements or technological measures;

(2) the extent to which information contained in a database that is the sole source of the information contained therein is made available through licensing or sale on reasonable terms and conditions,

(3) the extent to which the license or sale of information contained in a database protected under this title has been conditioned on the acquisition or license of any other product or service, or on the performance of any action, not directly related to the license or sale;

(4) the extent to which access to information necessary for research, competition, or innovation purposes has been prevented;

[begin page 10]

(5) the extent to which the manner of asserting rights granted under this title constitutes a barrier to entry into the relevant database market; and

(6) the extent to which the judicially developed doctrines of misuse in other areas of the law may appropriately be extended to the case or controversy.

SEC. 107. ENFORCEMENT.

(a) USE OF FEDERAL TRADE COMMISSION ACT AUTHORITY.---The Federal Trade Commission shall have jurisdiction under section 5 of the Federal Trade Commission Act. (15 U.S.C, 45), to prevent violations of section 102 of this title.

(b) RULEMAKING AUTHORITY.---The Federal Trade Commission may, pursuant to subparagraph (A) or (B) of section 18 (a) of the Federal Trade Commission Act. (15 U.S.C. 57a(a)), but without regard to the limitations contained in section 18(b)(3) of such Act, prescribe rules to implement this title.

(e) ENFORCEMENT.---Any violation of any rule prescribed under subsection (b) shall be treated as a violation of a rule respecting unfair or deceptive acts or practices under section 5 of the Federal Trade Commission Act (15 U.S.C. 45). Notwithstanding section 5(a)(2) of such Act (15 U.S.C. 45(a)(2)), communications common carriers [begin page 11] shall be subject to the jurisdiction of the Federal Trade Commission for purposes of this title.

(d) ACTIONS BY THE COMMISSION.---The Federal Trade Commission shall prevent any person from violating section 102 or a rule of the Commission under subsection (b) of this section in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this title. Any person who violates section 102 or such rule shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms, and provisions of the Federal Trade Commission Act were incorporated into and made a part of this title.

SEC. 108. REPORT TO CONGRESS.

Not later than 36 months after the date of enactment of this title, the Federal Trade Commission shall report to the Congress on the effect this title has had on electronic commerce and on the United States database industry and related parties, including---

[begin page 12]

(1) the availability of databases, search engines, and other tools for locating information necessary for electronic commerce;

(2) the extent of competition between database producers, including the concentration of market power within the database industry;

(3) the investment in the development and maintenance of databases, including changes in the number and size of databases;

(4) the availability of information to industries and researchers which rely upon such availability;

(5) whether in the period after enactment of this title database producers have faced unfair competition, particularly from publishers in the European Union; and

(6) the extent to which extraction of information from databases, to a degree insufficient to result in liability under section 102, is harming database producers' incentive to collect and organize databases.

SEC. 109. EFFECTIVE DATE.

This title shall take effect on the date of the enactment of this Act, and shall apply to the sale or distribution after that date of a, database that was collected and organized after that date.