Senate Approves Copyright Bill

February 1, 2005. On January 25, Sen. Orrin Hatch (R-UT), Sen. Patrick Leahy (D-VT), Sen. John Cornyn (R-TX), and Sen. Dianne Feintstein (D-CA) introduced S 167, the "Family Entertainment and Copyright Act of 2005", which is also known as the FECA. On February 1, the Senate approved the bill by unanimous consent.

The Senate Judiciary Committee held no hearing or markup on this bill in this Congress. The Senate, by unanimous consent, discharged the Committee from further consideration. The Senate then approved the bill, with one minor technical amendment, by unanimous consent, with little discussion.

This bill is a made up of four unrelated titles, all of which pertain mostly to copyright law. It is a carryover from the 108th Congress. It is essentially a subset of S 3021 (108th), which was titled the "Family Entertainment and Copyright Act of 2004". The Senate approved S 3021 very late in the last Congress, on Saturday, November 20, 2004. The House did not approve it. However, three of the provisions of S 3021 were enacted into law through other bills, and hence, are not in S 167.

See, story titled "Senate Approves Copyright Bill" in TLJ Daily E-Mail Alert No. 1,024, November 23, 2004.

Summary of the FECA. S 167, contains four titles. The key parts of the bill are the ART Act, which includes a provision criminalizing certain uses of camcorders in movie theaters, and the Family Movie Act, which pertains to ClearPlay type technology. It also contains the Film Preservation Act and the Orphan Works Act.

Sen. Leahy (at right), who is the ranking Democrat on the Senate Judiciary Committee, summarized his bill in the Senate on February 1. "The FECA bill is made up of four important provisions. Title I of the bill contains the ART Act, which will criminalize the use of camcorders to steal movies surreptitiously from the big screen. The second title of the bill is the Family Movie Act, which was designed to allow consumers to view only those portions of movies, in their own homes, that they want to. Title III of the bill contains the Film Preservation Act, legislation that I sponsored in the last Congress. The Film Preservation Act will allow the Library of Congress to continue its important work in preserving America's fading film treasures. What is more, the bill will assist libraries, museums, and archives in preserving films, and in making those works available to researchers and the public. Finally, the bill contains the Preservation of Orphan Works Act, which will correct a drafting error in the Sonny Bono Copyright Term Extension Act and will allow libraries to create copies of orphan works -- copyrighted materials that are in the last 20 years of their copyright term, are no longer commercially exploited, and are not available at a reasonable price." See, Congressional Record, February 1, 2005, at Page S827.

The ART Act and Family Movie Act provisions of S 167 are nearly identical to the parallel provisions of S 3021.

ART Act. The ART Act includes, among other provisions, criminalization of certain unauthorized recording of motion pictures in a motion picture exhibition facility. That is, it criminalizes using camcorders to copy movies in motion picture exhibition facilities, such as movie theaters. It also gives movie theater owners limited immunity for detaining violators.

Another provision of the ART Act requires the Register of Copyrights to "establish procedures for preregistration of a work that is being prepared for commercial distribution and has not been published ... for any work that is in a class of works that the Register determines has had a history of infringement prior to authorized commercial distribution". It also provides that infringement actions may be based upon these preregistrations.

Family Movie Act. The Family Movie Act is more controversial. There are opponents of the provision, and opponents of the provision in its current form.

This provision addresses technology, such as that of ClearPlay, to skip content in copyrighted works. It adds a new ¶ 11 to 17 U.S.C. § 110 (which provides exceptions to the exclusive rights of copyright).

It contains a content skipping exception: "the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology".

The bill also contains related language amending trademark law.

However, it does not include language regarding ad skipping. That is, ClearPlay and other companies can market products that skip violent or obscene content, and ads, in movies.

More on S 3021. S 3021 (108th) also contained four other provisions that are not in S 167 (109th). Three of these provisions were included in other bills, and enacted into law late last year. These include the "Anticounterfeiting Act of 2004", and the "Fraudulent Online Identity Sanctions Act". They were enacted via HR 3632, the "Intellectual Property Protection and Courts Amendments Act of 2004". This bill is now Public Law No. 108-482.

S 3021 (108th) also included the CREATE Act, the full title of which is the "Cooperative Research and Technology Enhancement (CREATE) Act of 2004". This is a patent bill which ultimately was enacted as a stand alone bill, S 2192 (108th). It is now Public Law No. 108-453.

S 3021 (108th) also included the "Professional Boxing Amendments Act of 2004''. This lengthy bill has nothing to do with intellectual property. It is not in S 167 (109th).