Attorney Steve® Copyright Legislation Updates - HR 9541 [SMART Copyright Act]
Introduction
The SMART Copyright Act (HR 9541) is a proposed bill in the United States House of Representatives that seeks to modernize copyright law by providing new tools for copyright holders to protect their work from infringement and providing new rights for users to access and use copyrighted materials. The bill would provide copyright holders with new tools, such as requiring websites to implement a “notice and takedown” system for copyright infringement, allowing copyright holders to seek injunctive relief for infringement in court, and providing for a “making available right” which would allow copyright holders to collect royalties for the distribution of their works. The bill would also provide new rights for users, such as the right to quote copyrighted material and the right to create user-generated content. The bill would also create a centralized copyright registry to make it easier for copyright holders to register their works and for users to locate works in the public domain.
Text: H.R.9541 — 117th Congress (2021-2022)
117th CONGRESS
2d Session
H. R. 9541
To amend title 17, United States Code, to define and provide for
accommodation and designation of technical measures to identify,
protect, or manage copyrighted works, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 14, 2022
Ms. Chu (for herself and Mr. Armstrong) introduced the following bill;
which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 17, United States Code, to define and provide for
accommodation and designation of technical measures to identify,
protect, or manage copyrighted works, and for other purposes.
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 ``Strengthening Measures to Advance
Rights Technologies Copyright Act of 2023'' or the ``SMART Copyright
Act of 2023''.
SEC. 2. DESIGNATION OF USE IN THE MARKETPLACE OF CERTAIN TECHNICAL
MEASURES TO IDENTIFY OR PROTECT COPYRIGHTED WORKS.
(a) In General.--Chapter 5 of title 17, United States Code, is
amended by adding at the end the following:
``Sec. 514. Designation of use in the marketplace of certain technical
measures to identify or protect copyrighted works
``(a) Definitions.--In this section:
``(1) Covered service provider.--The term `covered service
provider' means a service provider to which a designated
technical measure applies.
``(2) Designated technical measure.--The term `designated
technical measure' means a technical measure that has been
designated by the Librarian in accordance with subsections (c),
(d), and (e).
``(3) Librarian.--The term `Librarian' means the Librarian
of Congress.
``(4) Proposed technical measure.--The term `proposed
technical measure' means a technical measure that is proposed
by a person under subsection (d).
``(5) Register.--The term `Register' means the Register of
Copyrights.
``(6) Service provider.--The term `service provider'
means--
``(A) a provider of online services or network
access, or the operator of facilities therefor, that--
``(i) provides storage at the direction of
a user of material that resides on a system or
network controlled or operated by or for the
service provider;
``(ii) refers or links users to an online
location by using information location tools,
including a directory, index, reference,
pointer, or hypertext link; and/or
``(iii) provides the intermediate and
temporary storage of material on a system or
network controlled or operated by or for the
service provider in a case in which--
``(I) the material is made
available online by a person other than
the service provider;
``(II) the material is transmitted
from the person described in clause (i)
through the system or network to a
person other than the person described
in clause (i) at the direction of that
other person; and
``(III) the storage is carried out
through an automatic technical process
for the purpose of making the material
available to users of the system or
network who, after the material is
transmitted as described in clause
(ii), request access to the material
from the person described in clause
(i); and
``(B) the term does not include--
``(i) a library or archives--
``(I) whose collections are open to
the public, or are available not only
to researchers affiliated with the
library or archives or with the
institution of which it is a part, but
also to other persons doing research in
a specialized field;
``(II) that has a public service
mission;
``(III) whose trained staff or
volunteers provide professional
services normally associated with
libraries or archives; and
``(IV) whose collections are
composed of lawfully acquired and/or
licensed materials;
``(ii) a nonprofit educational institution;
or
``(iii) any other person solely with regard
to providing the services described in section
512(k) to an institution described in
subparagraph (i) or (ii) in the course of
providing such services to such institution.
``(7) Technical measure.--The term `technical measure'
means a technical measure that is used in commerce by a
copyright owner or a service provider to identify or protect a
copyrighted work.
``(b) Employment of Designated Technical Measures.--A covered
service provider shall use reasonable efforts to employ and effectively
implement applicable designated technical measures.
``(c) Authority of the Librarian.--
``(1) Designation of technical measures.--The Librarian
may, at the recommendation of the Register, and pursuant to
subsections (d) and (e)--
``(A) designate proposed technical measures that--
``(i) are widely used in the marketplace by
service providers; or
``(ii) are widely available in the
marketplace on nondiscriminatory terms and a
royalty-free basis;
``(B) rescind previous designations of technical
measures; and
``(C) revise previous designations of technical
measures.
``(2) Prescription of rules.--The Librarian, upon
consultation with the Register, shall prescribe rules that--
``(A) implement subsections (d) and (e); and
``(B) provide for the protection of confidential
and sensitive information provided to the Librarian--
``(i) as part of a petition under
subsection (d); or
``(ii) during a rulemaking under subsection
(e).
``(d) Petitions.--
``(1) In general.--Not later than 1 year after the date of
enactment of the SMART Copyright Act of 2023 and every 3 years
thereafter, the Librarian shall accept petitions, from owners
of copyrighted works, service providers, and other
stakeholders, proposing the designation of a technical measure
or the rescission or revision of a previous designation of a
technical measure.
``(2) Petition requirements.--In the case of a petition
submitted to the Librarian under paragraph (1) proposing the
designation of a technical measure or review of a previous
designation of a technical measure, as appropriate, the
petition shall detail with specificity--
``(A) how the proposed technical measure, or the
designated technical measure as proposed to be revised,
meets the definition of `technical measure' under
subsection (a) and the criteria for designation of such
technical measure under subsection (c)(1)(A);
``(B) the classes of copyrighted works, or any
subsets thereof, intended to be covered; and
``(C) the types of service provider, or any subsets
thereof, intended to be covered.
``(3) Evaluation of petition.--After each deadline under
paragraph (1), the Librarian shall evaluate each petition
received under that paragraph and take appropriate action as
follows:
``(A) The Librarian may begin a rulemaking process
to--
``(i) designate a proposed technical
measure; or
``(ii) rescind or revise a previous
designation of a technical measure.
``(B) The Librarian shall reject without a
rulemaking proceeding a petition that proposes the
designation or revision of a designation applicable to
a privately owned technical measure, unless the
petition is filed or joined by the owner of the
technical measure proposed to be designated or whose
previous designation is proposed to be revised.
``(e) Rulemaking Process.--
``(1) Public comment.--For any proposed technical measure
or designated technical measure for which the Librarian has
begun a rulemaking process under subsection (d)(3)(A), the
public comment process shall include not less than 1 public
hearing convened by the Register.
``(2) Examination by register.--For any rulemaking process
the Librarian has begun under subsection (d)(3)(A), with
respect to each proposed technical measure, the Register, in
making a recommendation under paragraph (3), shall consider
whether the criteria set forth in subsection (c)(1)(A) have
been met, and, in addition, shall take into account--
``(A) whether the proposed technical measure
imposes substantial and disproportionate costs on
service providers or substantial and disproportionate
burdens on their systems or networks;
``(B) whether there are any intellectual property
rights that need to be licensed by service providers to
employ and effectively implement the proposed technical
measure;
``(C) the total amount of alleged or demonstrated
infringing activity occurring over systems or networks
controlled by the types of service providers described
in the petition, including the volume of valid takedown
notices received by the service provider pursuant to
section 512, taking into consideration the scale of the
platform and existing systems to identify or protect
copyrighted material;
``(D) the positive or negative impact the proposed
technical measure may have on criticism, comment, news
reporting, teaching, scholarship, research, increasing
information sharing, or other relevant public interest
considerations;
``(E) whether the proposed technical measure poses
a cybersecurity threat (as defined in section 102 of
the Cybersecurity Information Sharing Act of 2015 (6
U.S.C. 1501)) to, or would create a security
vulnerability (as defined in such section 102) for, the
information systems of the affected service providers;
``(F) the impact the proposed technical measure may
have on privacy and data protection;
``(G) the impact the lack of use of the proposed
technical measure may have on unfair competition among
service providers;
``(H) whether certain categories or types of
service providers should be exempt from the subset of
service providers covered by the proposed technical
measure, such as corporate or not-for-profit websites
that permit user comments or posts, but have never or
rarely had infringing activity on their services;
``(I) whether the proposed technical measure may
conflict or interfere with other proposed technical
measures or designated technical measures; and
``(J) whether multiple proposed technical measures
and designated technical measures should be subsumed
under a broader category of designated technical
measures.
``(3) Recommendation.--The Register shall make a
recommendation on each proposed technical measure, and each
proposed revision or rescinding of a previous designation of a
technical measure, that is considered under the rulemaking
process under this subsection, and after consulting with the
following, as appropriate:
``(A) The Director of the National Institute of
Standards and Technology.
``(B) The Assistant Secretary of Commerce for
Communications and Information.
``(C) Any relevant cybersecurity agency.
``(4) Decision.--If, at the conclusion of the rulemaking
process under this subsection, the Librarian determines based
on the recommendation of the Register that a proposed technical
measure should be designated under the authority granted in
subsection (c), the Librarian shall--
``(A)(i) for a proposed technical measure,
designate the proposed technical measure; or
``(ii) for a revision of a previous designation of
a technical measure, set forth the revised designation
of the technical measure;
``(B) for a proposed technical measure or a
proposed revision of a previous designation of a
technical measure--
``(i) describe, as part of the designation
under subparagraph (A), the classes of
copyrighted works, or any subsets thereof, and
the types of covered service providers to which
the technical measure applies; and
``(ii) include in the description under
clause (i), as appropriate, any category or
subset of type of service provider that is
exempt from the designation, such that the
requirement under subsection (b) does not apply
to those service providers;
``(C) for a previous designation of a technical
measure proposed to be rescinded, rescind the
designation of the technical measure;
``(D) for a proposed technical measure or a
previous designation of a technical measure proposed to
be revised, provide examples or a definition with
specificity for what `employ and effectively implement'
means for the technical measure, taking into account
how different covered service providers to which the
technical measure applies may have to employ and
effectively implement differently based on their size
or other relevant characteristics, provided that no
such examples shall imply that a particular proprietary
product must be used;
``(E) publish a list of designated technical
measures, including the description required under
subparagraph (B)(i), to be in effect after the
Librarian has designated technical measures or revised
or rescinded previous designations of technical
measures under the paragraph in the Federal Register
and publish and maintain the list on the website of the
Library of Congress; and
``(F) for a proposed technical measure or a revised
designation of a technical measure, publish a deadline,
which shall not be earlier than 1 year after the date
of publication, by which covered service providers
shall implement the designated technical measure.
``(f) Public Information.--To assist the public in understanding
the requirements under this section, the Register shall--
``(1) publish on the website of the Copyright Office an
index of cases relating to the requirements; and
``(2) update the list published under paragraph (1) not
less frequently than annually.
``(g) Authorization of Appropriations.--
``(1) In general.--There is authorized to be appropriated
to carry out this section--
``(A) $900,000 for fiscal year 2023; and
``(B) subject to paragraph (2), $700,000 for fiscal
year 2024 and each fiscal year thereafter.
``(2) Adjustment for inflation.--The amount authorized to
be appropriated under paragraph (1)(B) for fiscal year 2025 and
each fiscal year thereafter shall be adjusted annually to
reflect the change in the Consumer Price Index for All Urban
Consumers published by the Bureau of Labor Statistics.
``(h) Appeal to District of Columbia Circuit.--Not later than 90
days after the date on which the Librarian publishes a decision
regarding a technical measure under subsection (e)(4), any covered
service provider to which the technical measure applies and any party
that submitted a petition under subsection (d) regarding the technical
measure may appeal the decision to the United States Court of Appeals
for the District of Columbia Circuit.
``(i) Civil Remedies.--
``(1) Civil actions.--A copyright owner may bring a civil
action in an appropriate United States district court against a
covered service provider for a violation of subsection (b) for
the remedies provided in this subsection.
``(2) Authority of the court.--In an action brought under
paragraph (1), if the court finds a violation of subsection
(b), the court shall enter an order on such terms as it may
deem reasonable to ensure compliance by the covered service
provider with subsection (b) within an appropriate time period,
and, in addition, the court may--
``(A) award damages, in accordance with paragraph
(3);
``(B) allow, in its discretion, the recovery of
costs by or against any party other than the United
States or an officer of the United States; and
``(C) award, in its discretion, reasonable attorney
fees and expert witness fees to the prevailing party.
``(3) Award of damages.--
``(A) In general.--Except as provided in
subparagraph (B) or otherwise provided in this title,
the court may award to the copyright owner bringing a
claim under paragraph (1)--
``(i) statutory damages in the sum of not
less than $5,000 and not more than $500,000 for
each violation of subsection (b), as the court
considers just; and
``(ii) a separate award of statutory
damages in the sum of not less than $5,000 and
not more than $500,000 for each month that a
covered service provider fails to comply with
subsection (b) after the time period ordered by
the court in paragraph (2)(A).
``(B) Innocent violations.--The court, in its
discretion, may reduce or remit the total award of
damages in any action brought against a covered service
provider under paragraph (1)--
``(i) in which the covered service provider
proves by a preponderance of the evidence that
the covered service provider was not aware and
had no reason to believe that its acts
constituted a violation of subsection (b); or
``(ii) for reasons of equity.
``(j) No Impact on Safe Harbor.--
``(1) In general.--Nothing in this section shall be
construed to alter the scope of the safe harbors set forth in
subsections (a) through (e) of section 512, or to impose a
condition on eligibility for those safe harbors.
``(2) No defense to liability.--The safe harbors set forth
in subsections (a) through (e) of section 512 shall not
constitute a defense to liability under this section.
``(k) Limitation of Liability.--Notwithstanding subsection (i), no
covered service provider shall be held liable in a civil action on
account of--
``(1) any action voluntarily taken in good faith under this
section to restrict access to or availability of material; or
``(2) any action taken under this section to enable or make
available to covered service providers the technical means to
restrict access to material described in paragraph (1).''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 5 of title 17, United States Code, is amended by adding at the
end the following:
``514. Designation of use in the marketplace of certain technical
measures to identify or protect copyrighted
works.''.
