H. R. 3531
1996 H.R. 3531; 104 H.R. 3531
SYNOPSIS:
A BILL To amend title 15, United States
Code, to promote investment and prevent intellectual property piracy with
respect to databases.
DATE OF INTRODUCTION: MAY 23, 1996
DATE OF VERSION: MAY 31, 1996 -- VERSION: 3
TEXT:
* Be it enacted by the Senate and House
of Representatives of the United*
*States of America in Congress assembled,
*
SECTION 1. SHORT TITLE.
This Act may be cited as the "Database
Investment and Intellectual
Property Antipiracy Act of 1996".
SEC. 2. DEFINITIONS.
"Change of commercial significance" means
a change that a reasonable
user of a database would regard as affecting
the quality, quantity or
value of contents of that database as a whole.
"Commerce" means all commerce that may
lawfully be regulated by
Congress.
"Database" means a collection, assembly
or compilation, in any form or
medium now or later known or developed, of works,
data or other
materials, arranged in a systematic or methodical
way.
"Database maker" means the natural or
juristic person making a
substantial investment, qualitatively or quantitatively,
in the
collection, assembly, verification, organization
and/or presentation of
the contents of the database. Unless provided
otherwise by contract-
(1) where two
or more persons qualify as the makers of a database,
they are jointly the database
maker;
(2) where a database
is made by employees within the scope of their
employment, the employer is
the database maker; and
(3) where a database
is made pursuant to special order or
commission, the person who
ordered or commissioned the database is
the database maker.
"Database management information" means
the name and other identifying
information of the database maker, the name and
other identifying
information of the database owner, and terms
and conditions for
extraction and use or reuse of the contents of
the database.
"Database owner" means the database maker
or the natural or juristic
person who is the database maker's successor
in interest.
"Extraction" means the permanent or temporary
transfer of all or a
substantial part of the contents of a database
or of a copy or copies
thereof. Such transfer may be to an identical
or different medium, and by
any means or in any form, now or later known
or developed.
"Governmental entity" means the United
States Government, any State,
any agency or instrumentality of either, and
any officer or employee of
any of the foregoing acting in his or her official
capacity.
"Insubstantial part" of a database means
any portion of the contents of
a database whose extraction, use or reuse does
not diminish the value of
the database, conflict with a normal exploitation
of the database or
adversely affect the actual or potential market
for the database.
"Juristic person" means any firm, corporation,
union, association,
non-profit institution, or other organization
capable of suing and being
sued in a court of law, but does not include
a governmental entity.
"Place in commercial use" means to use
or reuse, or to authorize use or
reuse, for direct or indirect commercial advantage
or for financial gain.
"Person" means any natural person, any
juristic person, and any
governmental entity.
"Use" and "reuse" means making available
all or a substantial part,
qualitatively or quantitatively, of the contents
of a database, or access
to all or such substantial part, whether or not
for direct or indirect
commercial advantage or financial gain, by any
means now known or later
developed, including any of the following: (i)
marketing, selling, or
renting; (ii) in the form of permanent or temporary
copies; or (iii) by
distribution, any online or other form of transmission.
SEC. 3. DATABASES SUBJECT TO THE ACT.
(a) A database is subject to the Act if
it is the result of a
qualitatively or quantitatively substantial investment
of human,
technical, financial or other resources in the
collection, assembly,
verification, organization or presentation of
the database contents, and
(i) the database is used or reused in commerce;
or (ii) the database
owner intends to use or reuse the database in
commerce.
(b) A database otherwise subject to this
Act shall remain subject,
regardless of whether it is made available to
the public or in commercial
use; the form or medium in which it is embodied;
or whether the database
or any contents of the database are intellectual
creations.
(c) Except for a database made by a governmental
entity, any database
otherwise subject to this Act, is not excluded
herefrom because its
contents have been obtained from a governmental
entity.
(d) Computer programs are not subject
to this Act, including without
limitation any computer programs used in the
manufacture, production,
operation or maintenance of a database. However,
the contents of a
database otherwise subject to this Act remain
subject, notwithstanding
their direct or indirect incorporation in a computer
program or other
work.
SEC. 4. PROHIBITED ACTS.
(a) No person shall, without the authorization
of the database owner-
(1) extract, use
or reuse all or a substantial part, qualitatively
or quantitatively, of the
contents of a database subject to this Act
in a manner that conflicts
with the database owner's normal
exploitation of the database
or adversely affects the actual or
potential market for the database;
(2) engage, notwithstanding
section 5(a), in the repeated or
systematic extraction, use
or reuse of insubstantial parts,
qualitatively or quantitatively,
of the contents of a database
subject to this Act in a manner
that cumulatively conflicts with the
database owner's normal exploitation
of the database or adversely
affects the actual or potential
market for the database; or
(3) procure, direct
or commission any act prohibited by subsections
(i) or (ii).
(b) Acts that conflict with a normal exploitation
of the database or
adversely affect the actual or potential market
for the database include
but are not limited to the extraction, use or
reuse of all or a
substantial part of the contents of a database-
(1) in a product
or service that directly or indirectly competes in
any market with the database
from which it was extracted; or
(2) in a product
or service that directly or indirectly competes in
any market in which the database
owner has a demonstrable interest or
expectation in licensing or
otherwise using or reusing the database;
or
(3) in a product
or service for customers who might otherwise
reasonably be expected to
be customers for the database; or
(4) by or for
multiple persons within an organization or entity in
lieu of the authorized additional
use or reuse (by license, purchase
or otherwise) of copies of
the database by or for such persons.
SEC. 5. EXCEPTIONS TO PROHIBITED ACTS.
(a) Subject to section 4(a)(ii), a lawful
user of a database made
available to the public or placed in commercial
use is not prohibited
from extracting, using or reusing insubstantial
parts of its contents,
qualitatively or quantitatively, for any purposes
whatsoever.
(b) Nothing in this Act shall in any way
restrict any person from
independently collecting, assembling or compiling
works, data or
materials from sources other than a database
subject to this Act.
SEC. 6. DURATION OF PROHIBITIONS.
(a) A database becomes subject to this
Act when the necessary
investment has been made to qualify its maker
as such under section 2.
The database shall remain subject to this Act
for a period of twenty-five
years from the first of January following the
date when it was first made
available to the public or the date when it was
first placed in
commercial use, whichever is earlier.
(b) Any change of commercial significance,
qualitatively or
quantitatively, to a database, including any
such change through the
accumulation of successive additions, deletions,
reverifications,
alterations, modifications in organization or
presentation, or other
modifications, shall make the resulting database
subject to this Act for
its own term, as calculated under subsection
(a).
SEC. 7. CIVIL REMEDIES FOR VIOLATION OF SECTION
4.
(a) CIVIL ACTIONS.-A database owner injured
by a violation of section 4
may bring a civil action for such a violation
in an appropriate United
States district court without regard to the amount
in controversy: *
**Provided however, *That any action against
a State governmental entity
may be brought in any court that has jurisdiction
over claims against
such entity.
(b) TEMPORARY AND PERMANENT INJUNCTIONS.-Any
court having jurisdiction
of a civil action arising hereunder shall have
the power to grant
temporary and permanent injunctions, according
to the principles of
equity and upon such terms as the court may deem
reasonable, to prevent
the violation of section 4. Any such injunction
granted upon hearing,
after notice to the party sought to be enjoined,
by any district court of
the United States, may be served on the party
against whom such
injunction is granted anywhere in the United
States where such person may
be found, and shall be operative and may be enforced
by proceedings in
contempt or otherwise by any United States district
court having
jurisdiction over such party.
(c) IMPOUNDMENT.-At any time while an
action hereunder is pending, the
court may order the impounding, on such terms
as it deems reasonable, of
all copies of contents of databases extracted
and or used or reused in
violation of section 4, and of all masters, tapes,
disks, diskettes, or
other articles by means of which such copies
may be reproduced. The court
may, as part of a final judgment or decree finding
a violation of section
4, order the remedial modification or destruction
of all copies of
contents of databases extracted, used or reused
in violation of section
4, and of all masters, tapes, disks, diskettes,
or other articles by
means of which such copies may be reproduced.
(d) MONETARY RELIEF.-When a violation
of section 4 has been established
in any civil action arising hereunder, the plaintiff
shall be entitled,
subject to principles of equity, to recover (i)
defendant's profit, (ii)
any damages sustained by the plaintiff, and (iii)
the costs of the
action. The court shall assess such profits or
damages or cause the same
to be assessed under its direction. In assessing
profits the plaintiff
shall be required to prove defendant's sales
only; defendant must prove
all elements of cost or deduction claimed. In
assessing damages the court
may enter judgment, according to the circumstances
of the case, for any
sum above the amount found as actual damages,
not exceeding three times
such amount. If the court shall find that the
amount of the recovery
based on profits is either inadequate or excessive,
the court may in its
discretion enter judgment for such sum as it
finds just. The court in its
discretion may award reasonable attorney fees
to the prevailing party.
(e) Subsections (b) and (c) shall not
apply to any action against the
United States Government.
(f) The relief provided under this section
shall be available against a
State governmental entity to the extent allowed
by applicable law.
SEC. 8. CRIMINAL OFFENSES AND PENALTIES FOR VIOLATION
OF SECTION 4.
(a) Any person who violates section 4
willfully, and-
(1) does so for
direct or indirect commercial advantage or
financial gain; or
(2) thereby causes
loss or damage to a database owner aggregating
$10,000 or more in any one-year
calendar period, shall be punished as
provided in subsection (b).
(b) An offense under subsection (a) shall
be punishable by a fine of
not more than $250,000 or imprisonment for not
more than five years, or
both. A second or subsequent offense under subsection
(a) shall be
punishable by a fine of not more than $500,000,
imprisonment for not more
than ten years, or both.
SEC. 9. RELATIONSHIP TO OTHER LAWS.
(a) The remedies against violations hereunder
shall be without
prejudice to any remedies under any copyright
that may subsist in the
database, any contents of the database, or the
selection, coordination or
arrangement of such contents. Such remedies shall
not limit,
impair, or otherwise affect the existence, scope
or duration of
protection under any such copyright.
(b) Nothing in this Act shall restrict
the rights of parties freely to
enter into licenses or any other contracts with
respect to databases or
their contents.
(c) Nothing in this Act shall prejudice
provisions concerning
copyright, rights related to copyright or any
other rights or obligations
in the database or its contents, including laws
in respect of patent,
trademark, design rights, antitrust or competition,
trade secrets, data
protection and privacy, access to public documents,
and the law of
contract.
SEC. 10. CIRCUMVENTION OF DATABASE PROTECTION
SYSTEMS.
No person shall import, manufacture or
distribute any device, product,
or component incorporated into a device or product,
or offer or perform
any service, the primary purpose or effect of
which is to avoid, bypass,
remove, deactivate, or otherwise circumvent,
without the authority of the
database owner or the law, any process, treatment,
mechanism or system
which prevents or inhibits the extraction, use
or reuse of the contents
of the database in violation of section 4 hereof.
SEC. 11. INTEGRITY OF DATABASE MANAGEMENT INFORMATION.
(a) FALSE DATABASE MANAGEMENT INFORMATION.-No
person shall knowingly
provide database management information that
is false, or knowingly
publicly distribute or import for public distribution
database management
information that is false.
(b) REMOVAL OR ALTERATION OF DATABASE
MANAGEMENT INFORMATION.-No person
shall, without authority of the database owner
or the law, (i) knowingly
remove or alter any database management information,
(ii) knowingly
distribute or import for distribution database
management information
that has been altered without authority of the
database owner or the law;
or (iii) knowingly distribute or import for distribution
copies of a
database from which database management information
has been removed
without the authority of the database owner or
the law.
SEC. 12. CIVIL REMEDIES FOR VIOLATION OF SECTIONS
10 OR 11.
(a) CIVIL ACTIONS.-Any person injured
by a violation of section 10 or
section 11 may bring a civil action for such
violation in an appropriate
United States district court, without regard
to the amount in
controversy: *Provided, however, *That any action
against a State
governmental entity may be brought in any court
that has jurisdiction
over claims against such entity.
(b) POWERS OF THE COURT.-In an action
brought under subsection (a), the
court-
(1) may grant
temporary and permanent injunctions on such terms as
it deems reasonable to prevent
or restrain a violation;
(2) at any time
while an action is pending, may order the
impounding, on such terms
as it deems reasonable, of any device or
product that is in the custody
or the control of the alleged violator
and that the court has reasonable
cause to believe was involved in a
violation;
(3) may award
damages under subsection (c);
(4) in its discretion
may allow the recovery of costs by or against
any party other than the United
States or an officer thereof;
(5) in its discretion
may award reasonable attorney's fees to the
prevailing party; and
(6) may, as part
of a final judgment or decree finding a violation,
order the remedial modification
or the destruction of any device or
product involved in the violation
that is in the custody or control
of the violator or has been
impounded under subsection (ii).
(c) AWARDS OF DAMAGES.-
(1) IN GENERAL.-Except
as otherwise provided in this Act, a
violator is liable for either
(A) the actual damages and any
additional profits of the
violator, as provided by subsection (ii),
or (B) statutory damages,
as provided by subsection (iii).
(2) ACTUAL DAMAGES.-The
court shall award to the complaining party
the actual damages suffered
by him or her as a result of the
violation, and any profits
of the violator that are attributable to
the violation and are not
taken into account in computing the actual
damages, if the complaining
party elects such damages at any time
before final judgment is entered.
(3) STATUTORY
DAMAGES.-
(A) At any time before final judgment is entered, a complaining
party
may elect to recover an award of statutory damages for each
violation
of section 10 in the sum of not less than $200 or more
than
$2,500 per device, product, offer or performance of service,
as
the court considers just.
(B) At any time before final judgment is entered, a complaining
party
may elect to recover an award of statutory damages for each
violation
of section 11 in the sum of not less than $2,500 or
more
than $25,000.
(4) REPEATED VIOLATIONS.-In
any case in which the injured party
sustains the burden of proving,
and the court finds, that a person
has violated section 10 or
11 within three years after a final
judgment was entered against
that person for another such violation,
the court may increase the
award of damages up to triple the amount
that would otherwise be awarded,
as the court considers just.
(5) INNOCENT VIOLATIONS.-The
court in its discretion may reduce or
remit altogether the total
award of damages in any case in which the
violator sustains the burden
of proving, and the court finds, that
the violator was not aware
and had no reason to believe that its acts
constituted a violation.
(d) Subsections (b) (i) and (ii) shall
not apply to any action against
the United States Government.
(e) The relief provided under subsection
(b) shall be available against
a State governmental entity to the extent allowed
by applicable law.
SEC. 13. CRIMINAL OFFENSES AND PENALTIES FOR
VIOLATION OF SECTION 11.
Any person who violates section 11 with
intent to defraud shall be
fined not more than $500,000 or imprisoned for
not more than five years,
or both.
SEC. 14. LIMITATIONS ON ACTIONS.
No action shall be maintained under this
Act unless it is commenced
within three years after the database owner knew
or should have known of
the claim.
SEC. 15. EFFECTIVE DATE.
(a) This Act shall take effect immediately
upon enactment, and shall be
applicable to acts committed on or after that
date.
(b) No person shall be liable under this
Act for use or reuse of
database contents lawfully extracted from a database,
prior to the
effective date of this Act, by that person or
by that person's
predecessor in interest.