House Judiciary Committee Puts Off Consideration of Copyright Legislation Until Next Year

September 27, 2006. The House Judiciary Committee (HJC) met to mark up several bills, including HR 6052 [100 pages in PDF], the "Copyright Modernization Act of 2006". Rep. James Sensenbrenner (R-WI), the Chairman of the HJC called up the bill. Rep. Lamar Smith (R-TX), the sponsor of the bill, then moved that it be withdrawn. There was no objection. This effectively delays further consideration of this legislation until next year when the 110th Congress meets.

Rep. Smith stated that he thought that the bill could have been approved by the HJC and by the full House, but that he did not wish to force members to make tough votes when enactment this year appeared unlikely.

He added that he will continue to work for approval of legislation in the next Congress.

The House schedule calls for recessing on September 29 for the November elections. However, there may be a lame duck session after the elections. There are other copyright bills that are now likely to lapse, such as HR 5361, known as the Perform Act. See, stories titled "Summary of the RIAA Lawsuit Against XM Satellite Radio", "Summary of the Sen. Feinstein's Perform Act", and "Music Licensing, Satellite Radio, and Perform Act Debated" in TLJ Daily E-Mail Alert No. 1,384, June 5, 2006.

Background. HR 6052 includes revised versions of the "Section 115 Reform Act of 2006", or SIRA, and the "Orphan Works Act of 2006".

For background information on the SIRA, see stories titled "CIIP May Mark Up SIRA" in TLJ Daily E-Mail Alert No. 1,386, June 7, 2006, and "CIIP Subcommittee Approves Section 115 Reform Act" in TLJ Daily E-Mail Alert No. 1,388, June 9, 2006. Although, the version of the SIRA in HR 6052 contains many changes from the version approved by the CIIP Subcommittee on June 8, 2006.

For more information on the orphan works bill, see stories titled "Copyright Office Recommends Orphan Works Legislation" in TLJ Daily E-Mail Alert No. 1,302, February 2, 2006, "House CIIP Subcommittee Holds Hearing on Orphan Works" in TLJ Daily E-Mail Alert No. 1,326, March 9, 2006, "Rep. Smith Introduces Orphan Works Act of 2006" in TLJ Daily E-Mail Alert No. 1,377, May 24, 2006, and "House CIIP Subcommittee Approves Orphan Works Act of 2006" in TLJ Daily E-Mail Alert No. 1,378, May 25, 2006. See also, Copyright Office's (CO) report [133 pages in PDF] titled "Report on Orphan Works".

September 27 Meeting. Rep. Smith (at right) spoke during the HJC meeting about the "music licensing" portion of the bill. He said, "After checking with most of the members of the Judiciary Committee, I am absolutely convinced that we could have resisted unfriendly amendments, and this bill could have passed easily. However, at this point I also do not see a realistic way could actually enact this legislation, and get it to the President's desk for his signature. So, I think that it is best not to force a few of my colleagues to cast hard votes that they would rather not cast on this particular bill."

He added that "My colleagues can be assured that I intend to move forward with this legislation into next year, and I am confident that we will pass it then. I also want to say, Mr. Chairman, that I think the public deserves a music licensing system designed to the digital age, and I am to get it to them. I hope that my colleagues and the groups will continue to work on this legislation, and join me in reaching that goal in the coming months."

Members have been prepared to offer numerous amendments to both the music licensing and orphan works sections of the bill.

Rep. John Conyers (D-MI), the ranking Democrat on the HJC praised the "wisdom" of Rep. Smith "to pull the bill today".

Rep. Darrell Issa (R-CA) argued for enactment of music licensing legislation. He said that "it is clear that you cannot have both the certainty, and the viable business solutions, without the act of Congress. We are not getting the full compromise to the business world, and clearly, the judiciary has a limited capability. Courts can give you interpretations of analog to digital law. They cannot give the certainty of business models necessary for the next generation of products. So, Mr. Chairman, I look forward to working with you to try to achieve that certainty for the business, and the content holders, in the next Congress."

Rep. Jeff Flake (R-AZ) attended the meeting, but did not speak regarding HR 6052. TLJ spoke with him before the markup. He said that almost all of the discussion of HR 6052 leading up to this markup focused on the music licensing portion of the bill, and that there had been little discussion of the orphan works section. He also said the the HJC would not take up HR 6052 because of the lack of support for the bill.

Rep. Howard Berman (D-CA), the ranking Democrat on the HJC's Subcommittee on Courts the Internet and Intellectual Property (CIIP), spoke at the meeting. He commended Rep. Smith. He said that "I want to echo his comments about the importance of this issue, and the need to undertake serious reform of the music license, in the digital age, when we want to maximize the changes for legal online services, produce a living for the creators of this music, and which is under threat by virtue of some of the changes in technology."

TLJ spoke with Rep. Berman after the hearing. He said then that "It wasn't my decision to take it off".

Rep. Berman (at left) also said "I will take him at his word that it wasn't likely that a bill would pass this year. Rather than go through a process where sort through the number of the amendments that were going to be offered, in what would have been a protracted markup, for a bill that wasn't going to pass this year, he decided to wait until next year."

TLJ also asked whether any of the discussions were over the orphan works portion of the bill. Rep. Berman responded, "not too much. In fact, the irony is, one could argue that had his amended orphan works bill, which delayed the effective date for visual works, I had, I was going to offer an amendment, but he did a pretty decent job of a manager's amendment that satisfied my basic concern on creating a database for visual works, photographs, and things like that. But with that amendment, the orphan works bill would have probably, separated out, might have moved smoothly through this house. Whether it would have been taken up on the Senate, I'm not sure."

This markup was likely Rep. Sensenbrenner's last. Rep. Smith praised his service. Rep. Sensenbrenner received a long ovation from members and audience. In particular, Rep. Smith said of Rep. Sensenbrenner, and Rep. Conyers, "you have fought for our jurisdiction".

Rep. Smith did not elaborate, but Rep. Sensenbrenner has worked to maintain a role for antitrust law, and the HJC, in telecommunications. Also, he has worked to maintain HJC jurisdiction over copyright issues. The House Commerce Committee (HCC) has increasingly fought for jurisdiction over copyright related matters. For example, on Tuesday, September 26, the HCC's Subcommittee on Commerce, Trade and Consumer Protection held a hearing titled "Editing Hollywood's Editors: Cleaning Flicks for Families". The HCC has also successfully obtained jurisdiction over legislation that would create a fair use exemption to the DMCA's ban on circumvention.

Elections and the CIIP Subcommittee. At the September 27 meeting, Rep. Berman also thanked Rep. Smith for his willingness to continue to work with him on this bill "in what will become his minority position in the next Congress".

Rep. Sensenbrenner interjected, "without objection the gentleman may have permission to revise and extend his remarks".

TLJ asked Rep. Berman after the meeting whether he would become the Chairman of the HJC's CIIP Subcommittee if the Democrats take control of the House following the November elections. He said, "well, unless something happened that keeps the Committee from making me the Chairman, or something like that." He said that there is not another position that he would take.

He added that "the logical assumption would be that I would become Chair. Whether that actually happens, will play out. But I don't get into speculating about what will happen".