I
106TH CONGRESS
1ST SESSION
H. R. 354
To amend title 17, United States Code, to provide protection for certain
collections of information.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 19, 1999
Mr. COBLE introduced the following bill; which was referred to the Committee
on the Judiciary
A BILL
To amend title 17, United States Code, to provide protection
for certain collections of information.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Collections of Informa-
tion Antipiracy Act’’.
SEC. 2. MISAPPROPRIATION OF COLLECTIONS OF INFOR-
MATION.
Title 17, United States Code, is amended by adding
at the end the following new chapter:
‘‘CHAPTER 14—MISAPPROPRIATION OF
COLLECTIONS OF INFORMATION
‘‘Sec.
‘‘1401. Definitions.
‘‘1402. Prohibition against misappropriation.
‘‘1403. Permitted acts.
‘‘1404. Exclusions.
‘‘1405. Relationship to other laws.
‘‘1406. Civil remedies.
‘‘1407. Criminal offenses and penalties.
‘‘1408. Limitations on actions.
‘‘§ 1401. Definitions
‘‘As used in this chapter:
‘‘(1) COLLECTION OF INFORMATION.—The term
‘collection of information’ means information that
has been collected and has been organized for the
purpose of bringing discrete items of information to-
gether in one place or through one source so that
users may access them.
‘‘(2) INFORMATION.—The term ‘information’
means facts, data, works of authorship, or any other
intangible material capable of being collected and or-
ganized in a systematic way.
‘‘(3) POTENTIAL MARKET.—The term ‘potential
market’ means any market that a person claiming
protection under section 1402 has current and de-
monstrable plans to exploit or that is commonly ex-
ploited by persons offering similar products or serv-
ices incorporating collections of information.
‘‘(4) COMMERCE.—The term ‘commerce’ means
all commerce which may be lawfully regulated by the
Congress.
‘‘§ 1402. Prohibition against misappropriation
‘‘Any person who extracts, or uses in commerce, all
or a substantial part, measured either quantitatively or
qualitatively, of a collection of information gathered, orga-
nized, or maintained by another person through the invest-
ment of substantial monetary or other resources, so as to
cause harm to the actual or potential market of that other
person, or a successor in interest of that other person, for
a product or service that incorporates that collection of
information and is offered or intended to be offered for
sale or otherwise in commerce by that other person, or
a successor in interest of that person, shall be liable to
that person or successor in interest for the remedies set
forth in section 1406.
‘‘§ 1403. Permitted acts
‘‘(a) EDUCATIONAL, SCIENTIFIC, RESEARCH, AND
ADDITIONAL REASONABLE USES.—
‘‘(1) CERTAIN NONPROFIT EDUCATIONAL, SCI-
ENTIFIC, OR
RESEARCH
USES.— Notwithstanding
section 1402, no person shall be restricted from ex-
tracting or using information for nonprofit edu-
cational, scientific, or research purposes in a manner
that does not harm directly the actual market for
the product or service referred to in section 1402.
‘‘(2) ADDITIONAL REASONABLE USES.—
‘‘(A) IN GENERAL.—Notwithstanding sec-
tion 1402, an individual act of use or extraction
of information done for the purpose of illustra-
tion, explanation, example, comment, criticism,
teaching, research, or analysis, in an amount
appropriate and customary for that purpose, is
not a violation of this chapter, if it is reason-
able under the circumstances. In determining
whether such an act is reasonable under the cir-
cumstances, the following factors shall be con-
sidered:
‘‘(i) The extent to which the use or
extraction is commercial or nonprofit.
‘‘(ii) The good faith of the person
making the use or extraction.
‘‘(iii) The extent to which and the
manner in which the portion used or ex-
tracted is incorporated into an independent
work or collection, and the degree of dif-
ference between the collection from which
the use or extraction is made and the inde-
pendent work or collection.
‘‘(iv) Whether the collection from
which the use or extraction is made is pri-
marily developed for or marketed to per-
sons engaged in the same field or business
as the person making the use or extrac-
tion.
In no case shall a use or extraction be per-
mitted under this paragraph if the used or ex-
tracted portion is offered or intended to be of-
fered for sale or otherwise in commerce and is
likely to serve as a market substitute for all or
part of the collection from which the use or ex-
traction is made.
‘‘(B) DEFINITION.—For purposes of this
paragraph, the term ‘individual act’ means an
act that is not part of a pattern, system, or re-
peated practice by the same party, related par-
ties, or parties acting in concert with respect to
the same collection of information or a series of
related collections of information.
‘‘(b) INDIVIDUAL
ITEMS
OF
INFORMATION
AND
OTHER INSUBSTANTIAL PARTS.—Nothing in this chap-
tershall prevent the extraction or use of an individual item
of information, or other insubstantial part of a collection
of information, in itself. An individual item of information,
for the collection of information from which it is extracted
or used.
‘‘(e) NEWS REPORTING.—Nothing in this chapter
shall restrict any person from extracting or using informa-
tion for the sole purpose of news reporting, including news
gathering, dissemination, and comment, unless the infor-
mation so extracted or used is time sensitive and has been
gathered by a news reporting entity, and the extraction
or use is part of a consistent pattern engaged in for the
purpose of direct competition.
‘‘(f) TRANSFER OF COPY.—Nothing in this chapter
shall restrict the owner of a particular lawfully made copy
of all or part of a collection of information from selling
or otherwise disposing of the possession of that copy.
‘‘§ 1404. Exclusions
‘‘(a) GOVERNMENT
COLLECTIONS
OF
INFORMA-
TION.—
‘‘(1) EXCLUSION.—Protection under this chap-
ter shall not extend to collections of information
gathered, organized, or maintained by or for a gov-
ernment entity, whether Federal, State, or local, in-
cluding any employee or agent of such entity, or any
person exclusively licensed by such entity, within the
scope of the employment, agency, or license. Nothing
in this subsection shall preclude protection under
this chapter for information gathered, organized, or
maintained by such an agent or licensee that is not
within the scope of such agency or license, or by a
Federal or State educational institution in the
course of engaging in education or scholarship.
‘‘(2) EXCEPTION.—The exclusion under para-
graph (1) does not apply to any information re-
quired to be collected and disseminated—
‘‘(A) under the Securities Exchange Act of
1934 by a national securities exchange, a reg-
istered securities association, or a registered se-
curities information processor, subject to sec-
tion 1405(g) of this title; or
‘‘(B) under the Commodity Exchange Act
by a contract market, subject to section
1405(g) of this title.
‘‘(b) COMPUTER PROGRAMS.—
‘‘(1) PROTECTION NOT EXTENDED.—Subject to
paragraph (2), protection under this chapter shall
not extend to computer programs, including, but not
limited to, any computer program used in the manu-
facture, production, operation, or maintenance of a
collection of information, or any element of a com-
puter program necessary to its operation.
‘‘(2) INCORPORATED COLLECTIONS OF INFOR-
MATION.—A collection of information that is other-
wise subject to protection under this chapter is not
disqualified from such protection solely because it is
incorporated into a computer program.
‘‘(c) DIGITAL ONLINE COMMUNICATIONS.—Protec-
tion under this chapter shall not extend to a product or
service incorporating a collection of information gathered,
organized, or maintained to address, route, forward, trans-
mit, or store digital online communications or provide or
receive access to connections for digital online communica-
tions.
‘‘§ 1405. Relationship to other laws
‘‘(a) OTHER RIGHTS NOT AFFECTED.—Subject to
subsection (b), nothing in this chapter shall affect rights,
limitations, 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, and the law of contract.
‘‘(b) PREEMPTION OF STATE LAW.—On or after the
effective date of this chapter, all rights that are equivalent
to the rights specified in section 1402 with respect to the
subject matter of this chapter shall be governed exclusively
by Federal law, and no person is entitled to any equivalent
right in such subject matter under the common law or
statutes of any State. State laws with respect to trade-
mark, design rights, antitrust, trade secrets, privacy, ac-
cess to public documents, and the law of contract shall
not be deemed to provide equivalent rights for purposes
of this subsection.
‘‘(c) RELATIONSHIP
TO
COPYRIGHT.—Protection
under this chapter is independent of, and does not affect
or enlarge the scope, duration, ownership, or subsistence
of, any copyright protection or limitation, including, but
not limited to, fair use, in any work of authorship that
is contained in or consists in whole or part of a collection
of information. This chapter does not provide any greater
protection to a work of authorship contained in a collec-
tion of information, other than a work that is itself a col-
lection of information, than is available to that work under
any other chapter of this title.
‘‘(d) ANTITRUST.—Nothing in this chapter shall limit
in any way the constraints on the manner in which prod-
ucts and services may be provided to the public that are
imposed by Federal and State antitrust laws, including
those regarding single suppliers of products and services.
‘‘(e) LICENSING.—Nothing in this chapter shall re-
strict the rights of parties freely to enter into licenses or
any other contracts with respect to the use of collections
of information.
‘‘(f) COMMUNICATIONS ACT OF 1934.—Nothing in
this chapter shall affect the operation of the provisions
of the Communications Act of 1934 (47 U.S.C. 151 et
seq.), or shall restrict any person from extracting or using
subscriber list information, as such term is defined in sec-
tion 222(f)(3) of the Communications Act of 1934 (47
U.S.C. 222(f)(3)), for the purpose of publishing telephone
directories in any format.
‘‘(g) SECURITIES AND COMMODITIES MARKET IN-
FORMATION.—
‘‘(1) FEDERAL AGENCIES AND ACTS.—Nothing
in this chapter shall affect—
‘‘(A) the operation of the provisions of the
Securities Exchange Act of 1934 (15 U.S.C.
78a et seq.) or the Commodity Exchange Act (7
U.S.C. 1 et seq.);
‘‘(B) the jurisdiction or authority of the
Securities and Exchange Commission and the
Commodity Futures Trading Commission; or
‘‘(C) the functions and operations of self-
regulatory organizations and securities informa-
tion processors under the provisions of the Se-
curities Exchange Act of 1934 and the rules
and regulations thereunder, including making
market information available pursuant to the
provisions of that Act and the rules and regula-
tions promulgated thereunder.
‘‘(2) PROHIBITION.—Notwithstanding any pro-
vision in subsection (a), (b), (c), (d), or (f) of section
1403, nothing in this chapter shall permit the ex-
traction, use, resale, or other disposition of real-time
market information except as the Securities Ex-
change Act of 1934, the Commodity Exchange Act,
and the rules and regulations thereunder may other-
wise provide. In addition, nothing in subsection (e)
of section 1403 shall be construed to permit any
person to extract or use real-time market informa-
tion in a manner that constitutes a market sub-
stitute for a real-time market information service
(including the real-time systematic updating of or
display of a substantial part of market information)
provided on a real-time basis.
‘‘(3) DEFINITION.—As used in this subsection,
the term ‘market information’ means information re-
lating to quotations and transactions that is col-
lected, processed, distributed, or published pursuant
to the provisions of the Securities Exchange Act of
1934 or by a contract market that is designated by
the Commodity Futures Trading Commission pursu-
ant to the Commodity Exchange Act and the rules
and regulations thereunder.
‘‘§ 1406. Civil remedies
‘‘(a) CIVIL ACTIONS.—Any person who is injured by
a violation of section 1402 may bring a civil action for
such a violation in an appropriate United States district
court without regard to the amount in controversy, except
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 under this
section shall have the power to grant temporary and per-
manent injunctions, according to the principles of equity
and upon such terms as the court may deem reasonable,
to prevent a violation of section 1402. Any such injunction
may be served anywhere in the United States on the per-
son enjoined, and may be enforced by proceedings in con-
tempt or otherwise by any United States district court
having jurisdiction over that person.
‘‘(c) IMPOUNDMENT.—At any time while an action
under this section is pending, the court may order the im-
pounding, on such terms as it deems reasonable, of all cop-
ies of contents of a collection of information extracted or
used in violation of section 1402, 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
1402, order the remedial modification or destruction of
all copies of contents of a collection of information ex-
tracted or used in violation of section 1402, 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 sec-
tion 1402 has been established in any civil action arising
under this section, the plaintiff shall be entitled to recover
any damages sustained by the plaintiff and defendant’s
profits not taken into account in computing the damages
sustained by the plaintiff. 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 re-
quired to prove defendant’s gross revenue only and the
defendant shall be required to prove all elements of cost
or deduction claims. In assessing damages the court may
enter judgment, according to the circumstances of the
case, for any sum above the amount found as actual dam-
ages, not exceeding three times such amount. The court
in its discretion may award reasonable costs and attor-
ney’s fees to the prevailing party and shall award such
costs and fees where it determines that an action was
brought under this chapter in bad faith against a non-
profit educational, scientific, or research institution, li-
brary, or archives, or an employee or agent of such an
entity, acting within the scope of his or her employment.
‘‘(e) REDUCTION OR REMISSION OF MONETARY RE-
LIEF
FOR NONPROFIT EDUCATIONAL, SCIENTIFIC, OR
RESEARCH INSTITUTIONS.—The court shall reduce or
remit entirely monetary relief under subsection (d) in any
case in which a defendant believed and had reasonable
grounds for believing that his or her conduct was permis-
sible under this chapter, if the defendant was an employee
or agent of a nonprofit educational, scientific, or research
institution, library, or archives acting within the scope of
his or her employment.
‘‘(f) ACTIONS AGAINST UNITED STATES GOVERN-
MENT.—Subsections (b) and (c) shall not apply to any ac-
tion against the United States Government.
‘‘(g) RELIEF AGAINST STATE ENTITIES.—The relief
provided under this section shall be available against a
State governmental entity to the extent permitted by ap-
plicable law.
‘‘§ 1407. Criminal offenses and penalties
‘‘(a) VIOLATION.—
‘‘(1) IN
GENERAL.—Any person who violates
section 1402 willfully, and—
‘‘(A) does so for direct or indirect commer-
cial advantage or financial gain, or
‘‘(B) causes loss or damage aggregating
$10,000 or more in any 1-year period to the
person who gathered, organized, or maintained
the information concerned,
shall be punished as provided in subsection (b).
‘‘(2) INAPPLICABILITY.—This section shall not
apply to an employee or agent of a nonprofit edu-
cational, scientific, or research institution, library, or
archives acting within the scope of his or her em-
ployment.
‘‘(b) PENALTIES.—An offense under subsection (a)
shall be punishable by a fine of not more than $250,000
or imprisonment for not more than 5 years, or both. A
second or subsequent offense under subsection (a) shall
be punishable by a fine of not more than $500,000 or im-
prisonment for not more than 10 years, or both.
‘‘§ 1408. Limitations on actions
‘‘(a) CRIMINAL PROCEEDINGS.—No criminal pro-
ceeding shall be maintained under this chapter unless it
is commenced within three years after the cause of action
arises.
‘‘(b) CIVIL ACTIONS.—No civil action shall be main-
tained under this chapter unless it is commenced within
three years after the cause of action arises or claim ac-
crues.
‘‘(c) ADDITIONAL LIMITATION.—No criminal or civil
action shall be maintained under this chapter for the ex-
traction or use of all or a substantial part of a collection
of information that occurs more than 15 years after the
portion of the collection that is extracted or used was first
offered for sale or otherwise in commerce, following the
investment of resources that qualified that portion of the
collection for protection under this chapter. In no case
shall any protection under this chapter resulting from a
substantial investment of resources in maintaining a pre-
existing collection prevent any use or extraction of infor-
mation from a copy of the preexisting collection after the
15 years have expired with respect to the portion of that
preexisting collection that is so used or extracted, and no
liability under this chapter shall thereafter attach to such
acts of use or extraction.’’.
SEC. 3. CONFORMING AMENDMENTS.
(a) TABLE OF CHAPTERS.—The table of chapters for
title 17, United States Code, is amended by adding at the
end the following:
‘‘14. Misappropriation of Collections of Information .......... 1401’’.
(b) DISTRICT COURT JURISDICTION.—(1) Section
1338 of title 28, United States Code, is amended—
(A) in the section heading by inserting ‘‘mis-
appropriations of collections of informa-
tion,’’ after ‘‘trade-marks,’’; and
(B) by adding at the end the following:
‘‘(d) The district courts shall have original jurisdic-
tion of any civil action arising under chapter 14 of title
17, relating to misappropriation of collections of informa-
tion. Such jurisdiction shall be exclusive of the courts of
the States, except that any action against a State govern-
mental entity may be brought in any court that has juris-
diction over claims against such entity.’’.
(2) The item relating to section 1338 in the table of
sections for chapter 85 of title 28, United States Code,
is amended by inserting ‘‘misappropriations of collections
of information,’’ after ‘‘trade-marks,’’.
(c) PLACE
FOR BRINGING ACTIONS.—(1) Section
1400 of title 28, United States Code, is amended by add-
ing at the end the following:
‘‘(c) Civil actions arising under chapter 14 of title
17, relating to misappropriation of collections of informa-
tion, may be brought in the district in which the defendant
or the defendant’s agent resides or may be found.’’.
(2) The section heading for section 1400 of title 28,
United States Code, is amended to read as follows:
‘‘§ 1400. Patents and copyrights, mask works, designs,
and collections of information’’.
(3) The item relating to section 1400 in the table of
sections at the beginning of chapter 87 of title 28, United
States Code, is amended to read as follows:
‘‘1400. Patents and copyrights, mask works, designs, and collections of informa-
tion.’’.
(d) COURT OF FEDERAL CLAIMS JURISDICTION.—
Section 1498(e) of title 28, United States Code, is amend-
ed by inserting ‘‘and to protections afforded collections of
information under chapter 14 of title 17’’ after ‘‘chapter
9 of title 17’’.
SEC. 4. EFFECTIVE DATE.
(a) IN GENERAL.—This title and the amendments
made by this title shall take effect on the date of the en-
actment of this Act, and shall apply to acts committed
on or after that date.
(b) PRIOR ACTS NOT AFFECTED.—No person shall
be liable under chapter 14 of title 17, United States Code,
as added by section 2 of this Act, for the use of informa-
tion lawfully extracted from a collection of information
prior to the effective date of this Act, by that person or
by that person’s predecessor in interest.
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