102 is not disqualified from such protection solely
because it resides in a computer program, so long as
the database functions as a database within the
meaning of this title and not as an element nec-
essary to the operation of the computer program.
(d) NONPROTECTABLE SUBJECT MATTER.—Protec-
tion for databases under section 102 does not extend to
the sale or distribution to the public of a duplicate of any
individual idea, fact, procedure, system, method of oper-
ation, concept, principle, or discovery.
(e) SUBSCRIBER LIST INFORMATION.—Protection for
databases under section 102 does not extend to subscriber
list information within the meaning of section 222(f) of
the Communications Act of 1934 (47 U.S.C. 222(f)).
Nothing in this subsection shall affect the operation of sec-
tion 222(e) of such Act, under which a telecommunications
carrier provides, upon request, subscriber list information
for the purposes of publishing directories in any format
under nondiscriminatory and reasonable rates, terms, and
conditions.
SEC. 105. RELATIONSHIP TO OTHER LAWS.
(a) OTHER RIGHTS NOT AFFECTED.—Subject to
subsection (b), nothing in this title shall affect rights, limi-
tations, or remedies concerning copyright, or any other
rights or obligations relating to information, including
laws with respect to patent, trademark, design rights,
antitrust, trade secrets, privacy, access to public docu-
ments, misuse, and the law of contract.
(b) PREEMPTION OF STATE LAW.—On or after the
effective date of this Act, no State law that prohibits or
that otherwise regulates conduct that is subject to the pro-
hibitions specified in section 102 shall be effective to the
extent that such State law is inconsistent with section 102.
(c) LICENSING.—Subject to the provisions on misuse
in section 106(b), nothing in this title shall restrict the
rights of parties freely to enter into licenses or any other
contracts with respect to the use of information.
(d) COMMUNICATIONS ACT OF 1934.—Nothing in
this title shall affect the operation of the Communications
Act of 1934 (47 U.S.C. 151 et seq.) or the authority of
the Federal Communications Commission.
SEC. 106. LIMITATIONS ON LIABILITY.
(a) SERVICE PROVIDER LIABILITY.—A provider of
telecommunications services or information services (with-
in the meaning of section 3 of the Communications Act
of 1934 (47 U.S.C. 153)), or the operator of facilities
therefor, shall not be liable for a violation of section 102
if such provider or operator did not initially place the data-
base that is the subject of the violation on a system or
network controlled by such provider or operator.
(b) MISUSE.—A person shall not be liable for a viola-
tion of section 102 if the person benefiting from the pro-
tection afforded a database under section 102 misuses the
protection. In determining whether a person has misused
the protection afforded under this title, a court shall con-
sider, among other factors—
(1) the extent to which the ability of persons to
engage in the permitted acts under this title has
been frustrated by contractual arrangements or
technological measures;
(2) the extent to which information contained in
a database that is the sole source of the information
contained therein is made available through licensing
or sale on reasonable terms and conditions;
(3) the extent to which the license or sale of in-
formation contained in a database protected under
this title has been conditioned on the acquisition or
license of any other product or service, or on the
performance of any action, not directly related to the
license or sale;
(4) the extent to which access to information
necessary for research, competition, or innovation
purposes has been prevented;
(5) the extent to which the manner of asserting
rights granted under this title constitutes a barrier
to entry into the relevant database market; and
(6) the extent to which the judicially developed
doctrines of misuse in other areas of the law may
appropriately be extended to the case or controversy.
SEC. 107. ENFORCEMENT.
(a) USE OF FEDERAL TRADE COMMISSION ACT AU-
THORITY.—The Federal Trade Commission shall have ju-
risdiction, under section 5 of the Federal Trade Commis-
sion Act (15 U.S.C. 45), to prevent violations of section
102 of this title.
(b) RULEMAKING AUTHORITY.—The Federal Trade
Commission may, pursuant to subparagraph (A) or (B)
of section 18(a) of the Federal Trade Commission Act (15
U.S.C. 57a(a)), but without regard to the limitations con-
tained in section 18(b)(3) of such Act, prescribe rules to
implement this title.
(c) ENFORCEMENT.—Any violation of any rule pre-
scribed under subsection (b) shall be treated as a violation
of a rule respecting unfair or deceptive acts or practices
under section 5 of the Federal Trade Commission Act (15
U.S.C. 45). Notwithstanding section 5(a)(2) of such Act
(15 U.S.C. 45(a)(2)), communications common carriers
shall be subject to the jurisdiction of the Federal Trade
Commission for purposes of this title.
(d) ACTIONS
BY
THE COMMISSION.—The Federal
Trade Commission shall prevent any person from violating
section 102 or a rule of the Commission under subsection
(b) of this section in the same manner, by the same means,
and with the same jurisdiction, powers, and duties as
though all applicable terms and provisions of the Federal
Trade Commission Act (15 U.S.C. 41 et seq.) were incor-
porated into and made a part of this title. Any person
who violates section 102 or such rule shall be subject to
the penalties and entitled to the privileges and immunities
provided in the Federal Trade Commission Act in the
same manner, by the same means, and with the same ju-
risdiction, power, and duties as though all applicable terms
and provisions of the Federal Trade Commission Act were
incorporated into and made a part of this title.
SEC. 108. REPORT TO CONGRESS.
Not later than 36 months after the date of enactment
of this title, the Federal Trade Commission shall report
to the Congress on the effect this title has had on elec-
tronic commerce and on the United States database indus-
try and related parties, including—
(1) the availability of databases, search engines,
and other tools for locating information necessary
for electronic commerce;
(2) the extent of competition between database
producers, including the concentration of market
power within the database industry;
(3) the investment in the development and
maintenance of databases, including changes in the
number and size of databases;
(4) the availability of information to industries
and researchers which rely upon such availability;
(5) whether in the period after enactment of
this title database producers have faced unfair com-
petition, particularly from publishers in the Euro-
pean Union; and
(6) the extent to which extraction of informa-
tion from databases, to a degree insufficient to re-
sult in liability under section 102, is harming data-
base producers’ incentive to collect and organize
databases.
SEC. 109. EFFECTIVE DATE.
This title shall take effect on the date of the enact-
ment of this Act, and shall apply to the sale or distribution
after that date of a database that was collected and orga-
nized after that date.