H.R. 2652- THE "COLLECTIONS OF INFORMATION ANTIPIRACY ACT"
H.R. 3163 - THE "TRADE DRESS PROTECTION ACT"
AND CONTINUED OVERSIGHT ON INTERNET DOMAIN NAME PROTECTION

FEBRUARY 12, 1998

THE SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTY WILL COME TO ORDER.

TODAY THE SUBCOMMITTEE IS CONDUCTING A CONTINUED LEGISLATIVE HEARING ON H.R. 2652, THE "COLLECTIONS OF INFORMATION ANTIPIRACY ACT"; A LEGISLATIVE HEARING ON H.R. 3163, THE "TRADE DRESS PROTECTION ACT"; AND A CONTINUED OVERSIGHT HEARING ON INTERNET DOMAIN NAME TRADEMARK PROTECTION.

FIRST, WE WILL TURN OUR ATTENTION TO H.R. 2652, THE "COLLECTIONS OF INFORMATION ANTIPIRACY ACT." AS YOU WILL RECALL FROM OUR INITIAL HEARING ON OCTOBER 28TH OF LAST YEAR, THIS BILL FILLS A VOID RECOGNIZED BY THE SUPREME COURT IN OUR INTELLECTUAL PROPERTY SYSTEM AND STRIKES A BALANCE AS THE INFORMATION AGE ARRIVES. THE BALANCE PROVIDES ADEQUATE PROTECTION TO ENSURE THERE IS AN INCENTIVE FOR COMPANIES TO INVEST IN THE DEVELOPMENT OF COLLECTIONS OF INFORMATION, WITHOUT INHIBITING MEMBERS OF THE SCIENTIFIC, LIBRARY, AND RESEARCH COMMUNITIES FROM CARRYING ON THEIR WORK. THIS BILL, AS A COMPLEMENT TO COPYRIGHT LAW, RELIES ON UNFAIR COMPETITION PRINCIPLES TO PREVENT A PARTY FROM MISAPPROPRIATING ANOTHER'S COLLECTION OF INFORMATION. IN THE EVENT A PERSON STEALS A SUBSTANTIAL PORTION OF ANOTHER'S COLLECTION OF INFORMATION WHERE THAT PERSON INVESTED SUBSTANTIAL TIME AND RESOURCES TO COLLECT IT, AND WHERE IT WILL HARM THE ORIGINAL COLLECTOR'S ABILITY TO COMPETE, THE MISAPPROPRIATOR WOULD BE SUBJECT TO INJUNCTIVE RELIEF AND POSSIBLE MONEY DAMAGES.

I WANT TO TAKE A MOMENT TO LOOK BACK AT THE ROAD WHICH HAS LED TO THIS SECOND HEARING ON THIS ISSUE. ALMOST TWO YEARS AGO, THE EUROPEAN UNION SET THE TABLE BY ADOPTING A DIRECTIVE IN MARCH 1996 BY WHICH MEMBER STATES WHERE TO ADOPT PROTECTIONS FOR DATABASES IN THEIR NATIONAL LEGISLATIONS BY JANUARY OF THIS YEAR. IN RESPONSE, THEN-CONGRESSMAN CARLOS MOORHEAD INTRODUCED H.R. 3531, THE "DATABASE INVESTMENT AND INTELLECTUAL PROPERTY ANTIPIRACY ACT OF 1996" IN MAY OF 1996. IN DECEMBER OF THAT YEAR, THE WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO) TABLED A DISCUSSION OF A DRAFT TREATY REGARDING DATABASE PROTECTION. THEN FROM MARCH THROUGH JUNE OF LAST YEAR, THE UNITED STATES COPYRIGHT OFFICE HELD A SERIES OF MEETINGS WITH GROUPS AND INDIVIDUALS WITH AN INTEREST IN DATABASE PROTECTION. THESE MEETINGS RESULTED IN THE PUBLICATION OF A REPORT TO CONGRESS ON THIS ISSUE IN AUGUST. THROUGHOUT THAT SAME TIME PERIOD, STAFF OF THIS SUBCOMMITTEE HELD A SIMILAR SERIES OF MEETINGS WITH INTERESTED PARTIES. THE FOLLOWING MONTH, IN SEPTEMBER 1997, WIPO AGAIN DISCUSSED THE GENERAL SUBJECT OF DATABASE PROTECTION AT ITS INFORMATIONAL MEETING. ON OCTOBER 9TH OF LAST YEAR, I INTRODUCED H.R. 2652, ON WHICH WE CONDUCTED A HEARING THREE WEEKS LATER.

AT THAT HEARING, WHILE WE HEARD A NUMBER OF CONCERNS RELATED TO THIS LEGISLATION, WE ALSO LEARNED THE FOLLOWING:

• THE VIABILITY OF SMALL PUBLISHERS LIKE PAUL WARREN, WHO TESTIFIED BEFORE US, IS BEING THREATENED BY THE WHOLESALE COPYING AND REPUBLICATION OF THEIR WORK BY COMPETITORS WHO DON'T HAVE TO INVEST ANY TIME, MONEY OR EFFORT;
• THAT AUTHORITIES SUCH AS THE REGISTER OF COPYRIGHTS CONCLUDE BASED ON A SUPREME COURT RULING THAT THERE IS A GAP IN THE PROTECTION AFFORDED BY CURRENT LAW; AND
• THAT ECONOMISTS BELIEVE IT IS IMPERATIVE THAT THIS COUNTRY PROVIDE ADDITIONAL PROTECTION WHICH PROVIDES THE NECESSARY ECONOMIC INCENTIVETO ENCOURAGE THE COLLECTION OF INFORMATION.

I POINT OUT THIS CHRONOLOGY BECAUSE SOME HAVE CONTACTED ME COMPLAINING THAT THIS BILL IS ON THE "FAST TRACK." NOW WE ALL KNOW THAT NOTHING IN CONGRESS, EVEN LEGISLATION CALLED FAST TRACK, IS EVER REALLY PASSED THAT WAY. THE FRAMERS MADE IT SO DELIBERATELY. THIS BILL TOOK TWO YEARS TO CREATE AND INTRODUCE AND I CAN SAFELY ASSUME THE OTHER MEMBERS OF THIS SUBCOMMITTEE ARE KEEPING A VERY OPEN MIND ON AMENDMENTS. AS A RESULT OF THE TWO DAYS OF HEARINGS ON THIS BILL I WILL OFFER SEVERAL AMENDMENTS TO DEAL WITH THE ISSUES SUCH AS SOLE SOURCE GOVERNMENT INFORMATION, A STATUTE OF LIMITATIONS, PERMISSIBLE USES BY SCIENTIFIC, EDUCATIONAL AND RESEARCH INSTITUTIONS AND DEFINING A POTENTIAL MARKET. I LOOK FORWARD TO WORKING WITH THE MEMBERS OF THE SUBCOMMITTEE AND ALL INTERESTED PARTIES ON THOSE AMENDMENTS. I PLAN TO SCHEDULE THIS BILL FOR MARKUP IN ABOUT THREE WEEKS. MY DOOR IS OPEN AS IT HAS ALWAYS BEEN, AND I LOOK FORWARD TO CONSTRUCTIVE DISCUSSION TODAY. I ANTICIPATE A SIMILARLY LIVELY DISCUSSION FROM OUR VARIOUS PANELISTS.

NEXT, WE WILL HEAR TESTIMONY ON H.R. 3163, THE "TRADE DRESS PROTECTION ACT." TRADE DRESS HAS HISTORICALLY CONSISTED OF A SERVICE OR PRODUCT'S CONFIGURATION, PACKAGE OR DISTINCT IMAGE, DESIGN OR APPEARANCE. IF YOU WILL, THE "CLOTHES" IN WHICH A PRODUCT OR SERVICE IS DRESSED. OVER THE YEARS, TRADE DRESS HAS BEEN EXPANDED TO INCLUDE PROTECTION FOR UNIQUE SHAPES OR DESIGNS THAT SERVE TO ADVISE CONSUMERS THAT CERTAIN GOODS OR SERVICES IDENTIFY CERTAIN COMPANIES. THIS BILL SEEKS TO CLARIFY VARIOUS CASES COMING OUT OF SEVERAL FEDERAL COURTS INTERPRETING THE STANDARDS WHICH COURTS MAY USE TO APPLY TO TRADE DRESS. I LOOK FORWARD TO OUR THIRD PANEL'S VIEWS ON THIS IMPORTANT ISSUE.

OUR FIRST WITNESS AND OUR THIRD PANEL WILL COMMENT ON INTERNET DOMAIN NAME TRADEMARK PROTECTION. THE THIRD PANEL WILL GIVE US THE VIEWS OF PROFESSIONALS WHO PRACTICE IN THE TRADEMARK AREA ON THE RELATIONSHIP BETWEEN TRADEMARKS AND DOMAIN NAMES. THIS WILL BE A CONTINUATION OF THE HEARING CONDUCTED ON NOVEMBER 4TH OF LAST YEAR.

I KNOW THIS IS A LOT OF GROUND TO COVER IN ONE HEARING, BUT THIS SUBCOMMITTEE HAS MUCH TO DO IN A VERY SHORT SESSION, AND I THANK THE MEMBERS AND THE WITNESSES FOR THEIR COOPERATION AND UNDERSTANDING IN THAT REGARD.

LET ME NOW INTRODUCE THE RANKING MEMBER, MR. FRANK, FOR AN OPENING STATEMENT.

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