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Address by Rep. Rick Boucher (D-VA).
Re: proposals for changes to the fair use doctrine in the context of digital and Internet media.
Date: March 6, 2001.
Source: Tech Law Journal transcribed from its audio recording. Copyright Tech Law Journal. All rights reserved.

Thank you very much for your invitation to take part in this conference. I want to begin my remarks by commending the CEA, and also commending Gary for highly effective efforts to protect the rights of the consumers of information. The CEA, under Gary's leadership, is highlighting through this conference, and through the work that it carries out from day to day, the importance of the preservation of traditional fair use rights.

And, I want to spend a few minutes this afternoon talking about the importance of fair use rights -- not just to equipment manufacturers -- but to all consumers of information of in our society. Those rights are the foundation of the receipt and use of information by the American public, from the college student who photocopies a page from a library book, in writing a report, to the typical television viewer, who records broadcasts for viewing at a later time, to the prudent home computer user, who makes back up copies of the data that he has lawfully downloaded from the Internet. We all depend on the ability to make convenience and incidental copies of copyrighted materials, without having to pay a fee, and without having to get the prior consent of the copyright owners.

 In fact, fair use rights to obtain and use a wide array of information, are essential to the exercise of our cherished First Amendment rights. The very vibrancy of our democracy is dependent on the information, availability and use, that is facilitated by the fair use doctrine.

And so, I congratulate Gary Shapiro, and the CEA, for the defense of fair use, which has been a hallmark of this associations work in recent years.

The time, in my opinion, has come, for the Congress to reaffirm the fair use doctrine, and to bolster specific fair use rights, which are now at risk. In 1998, responding to the concerns of copyright owners, Congress passed the Digital Millennium Copyright Act. The announced purpose was to protect from piracy copyrighted material in an environment which poses special concerns for copyright owners. They made the point that with digital technology, a copy of a copy of a copy has the same clarity and perfection as the original of the work. They also made the point that in the networked environment, with the single click of a mouse, thousands of those perfect copies can be sent people throughout the nation and the world.

The DMCA is the result of the effort by Congress to respond to those realities. There are some today who believe that the legislation went too far. For example, it creates, in Section 1201(a), a new crime of circumventing a technological protection measure, that guards access to a copyrighted work. Under Section 1201, the purpose of the circumvention is immaterial. It is a crime to circumvent the password or other gateway, even for the purpose of exercising fair use rights. There is no requirement that the circumvention be for the purpose of infringing the copyrights. Any act of circumvention, without the consent of the copyright owner, is made criminal under Section 1201.

Some now foresee a time when virtually all new material will be sent to libraries on CD ROMs, with the material encrypted or guarded by passwords. In exchange for a fee for each viewing, the password may then be used. And so it is predicted that under Section 1201, what is available today on the library shelves for free will be available on a pay per use basis only. The student who wants even the most basic access to material to write his term paper will have to pay for each item that he uses.

Several of us made an effort in 1998 to limit the new crime under Section 1201 to circumvention for the purpose of infringement. But in the momentum to enact the measure, essentially unamended, we were not able to have that change adopted. With the growing realization on the part of the education community, and supporters of libraries, of the threat to fair use rights which Section 1201 poses, perhaps the time will soon come for a Congressional reexamination of this provision.

Perhaps the only conduct that should be declared criminal is circumvention for the purpose of infringement. Perhaps a more limited amendment could be crafted to ensure the continued exercise of fair use rights of libraries, and in scholastic settings, notwithstanding the provisions of Section 1201.

And I think there are other challenges. I am concerned by the apparent attempt of some in the content community to seek to protect their copyright interests in material contained in television programs by insisting that the TV signal quality be degraded, or by insisting on the use of settop box technology which prohibits all copying. The reasonable expectations of television viewers to be able to make copies of programs for time shifting, and other historically accepted purposes, must be honored, and must be fulfilled.

There is a way to protect copyrights in digitally broadcast TV programs, and to permit TV viewers to make copies TV programs for home use. The model is contained in the current law. It is Section 1201(k) of the Digital Millennium Copyright Act. And that provision was adopted with respect to recording of analog television broadcasts. The section requires VCRs to respond to macrovision, copy protection technology, and to block copying of rental movies that are encoded with the macrovision marking. In exchange for this statutory mandate, TV viewers are granted the right to make unlimited copies of broadcasts that are made over the air, and one copy for time shifting purposes, of premium television programming, which may only be aired one specific time.

When there is no reasonable expectation of being able to make a copy, such as in the case of a movie rented from a store, the VCRs will block all copying in response to the macrovision encoding. This arrangement for the world of analog broadcasts offers a model for resolution of the current debate over how to protect copyrights associated with digital television broadcasts.

In exchange for a reasonable set of guaranteed home recording rights, somewhat along the lines, perhaps, of Section 1201(k), I am sure that the Congress would readily pass a statutory requirement that digital recorders respond to watermarks which would prevent copying that is inconsistent with those recording guarantees.

The time has come for the motion picture studios to present a proposal along these lines to the manufacturers of recording equipment. There is an urgent need an agreement that will simultaneously protect copyrights and the home recording rights of TV viewers. In the mean time, I very much hope that the content community will not attempt unilateral approaches to protecting content, which would either defeat home recording rights, or degrade the quality of digital television broadcasts.

Congress, in my view, should also reaffirm the fair use doctrine in some other specific areas.

First, traditional distance learning applications in broadcast and closed circuit television, and a special copyright exemption accommodates those traditional broadcasters. Today a new era of distance learning has arrived in which personal computers and the Internet are replacing the television set and closed circuit systems as the delivery medium. Copyright exemption, in my view, should be broadened to include the new technologies, and to expand to the home the setting in which distance learning can occur.

As a second matter, the first sale doctrine should be made applicable for online sales of copyrighted material. If you go to a bookstore today, and purchase a book, under the first sale doctrine, you are entitled to give that book to someone else. You are entitled to sell that book to another person if that be your desire. It is a time honored doctrine which implies in the physical world. But it does not apply with any certainty in the online world. And there is an online analog to the physical world in this regard. If a person purchases over the Internet copyrighted material, whether it is music or a video clip or text of some kind, and if there is the absolute assurance that upon transfer of that material to another party, that the original version of it which was purchased is destroyed. If that condition is met, then the first sale doctrine, in my view, should apply as certainly in the online world as it does in the physical world today. And an amendment to achieve that result would be appropriate.

As a third matter, given the architecture of the Internet and personal computers, the simple act of viewing a downloaded image, listening to webcasting, or sending an email message, creates an incidental or temporary reproduction. And many consumer electronic products temporarily store bits representing audio clips or audio visual works in a buffer as part of the normal operation of that device or appliance. These temporary copies, which are essential to the operation of digital products and networks, should be made unequivocally lawful under the copyright law, and an amendment to that effect should be adopted.

As a fourth matter, current law permits a computer user to make backup copies of software, so that the program can be restored in the event of a hard disk crash. But current law does not prevent an archival copy to be made with data that is associated with that program. A change in the law would be required to allow the back up copy of data associated with the program to made. Often times the data is the most valuable component, and a complete back up by a prudent person would encompass the data as well as the software. In fact, it might encompass the data in lieu of the software. That is the more typical example.

There is a fifth case. at the present time you can go into a record store, and you can listen to samples of music, and that sampling of music in the record stores for the purpose of determining whether or not you want to purchase that music is permitted by a special exemption in the copyright laws. It is called the in store exemption. Today, there are instances in which people would like to listen to samples of music before they decide to order a CD from or CDNow. And I say that in no particular order, in case those companies are represented here. In fact, I do that. It really is a great convenience to be able to listen maybe fifteen seconds of a song with regard to several tracks on an album before you decide whether or not that is a CD that you would like to purchase. But the in store exemption that permits that for the physical world does not apply to permit that kind of music sampling solely for the purpose of promotion, solely for the purpose of determining if you would like to buy that CD in the online world. In my opinion, it should.

And there is a sixth case. Last year I introduced a bill which drew some amount of attention that is in the category of unfinished business that we need to address this year, that would make it possible for people who music, to have that music archived on the Internet, and then listen to that music at a time and a place of that person's choosing. Now, it happens today with regard to physical CDs. A person who owns a CD takes that CD with him when he goes to his car. He takes it with him when he goes to a friend's house, or perhaps to his place of business. And so he listens to his own music by the physical transportation of a CD to these other locations. Legislation that I have introduced and I believe the Congress should pass, very much in the nature of a fair use right, would enable that same kind of mechanism to apply with regard to the Internet. The person could have his music archived on _____, and made accessible to him over the Internet at a time and place his choosing. And it would simply add a great deal of convenience to the Internet user, who has already purchased the CD, but not having to physically take the CD with him every place that he wants to hear music. And I think the time has come to allow that convenience for Internet users.

There are other issues. There are a large number of concerns that people have addressed with regards to the need to preserve fair use rights. I have touched this afternoon on some that I think are the most important and the most compelling. And I believe that the time has come for Congress to examine these matters, to give confidence to the consumers of information, that their right to access information and use it in appropriate ways is met. And as all of this is done, to assure to protection to the owners of intellectual property. These are not inconsistent goals. With hard work, and determination, and a will on both sides, these mutual goals can be achieved. And I very much look forward to working with the CEA, and with other interested organizations that are in the business, as we address these needs, and hopefully achieve success in passage, of fair use reaffirmation legislation, during the course of the 107th Congress.

I want to commend this organization. I think the CEA, perhaps more than any other association, is signaling the importance of this mission. And it is doing so in a way that is balanced. And its presentations on the various panels this morning indicate, it is doing so under the excellent guidance and leadership of the very capable individual, Gary Shapiro, who I also commend for his determination to assure that these consumer rights are protected. Thank you very much.


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