[Pages S8582-S8590]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

By Mr. HATCH (for himself, Mr. Leahy, Mr. Thompson, and Mr.
Kohl):
S. 1121. A bill to amend Title 17 to implement the WIPO Copyright
Treaty and the WIPO Performances and Phonograms Treaty; to the
Committee on the Judiciary.

the wipo copyright and performance and phonograms treaty implementation
act of 1997

Mr. HATCH. Mr. President, today I am introducing legislation proposed
by the Clinton administration to implement two important treaties that
were adopted last December by the World Intellectual Property
Organization (WIPO). The distinguished Ranking Member of the Judiciary
Committee, Sen. Leahy, the distinguished Senator for Tennessee, Sen.
Thompson, and the distinguished Senator from Wisconsin, Sen. Kohl, join
me as original cosponsors. I strongly support adoption of the treaties,
and I am introducing this bill on behalf of the Administration as an
essential step in that process. I believe that the Administration's
bill provides an excellent starting point for the debate on exactly
what must be changed in U.S. law in order to comply with the treaties.
The WIPO Copyright Treaty and the WIPO performances and Phonograms

[[Page S8583]]

Treaty--completed after years of intense lobbying by the United States
government--will update international copyright law for the digital age
and ensure the protection of American creative products abroad. I want
to commend Secretary of Commerce Bill Daley, Commissioner of Patents
and Trademarks Bruce Lehman, and their staffs for their efforts in
moving this important issue forward, and I welcome the opportunity to
work with them during the legislative process.
The United States leads the world in the production of creative works
and high-technology products--including software, movies, recordings,
music, books, video games, and information. Copyright industries
represent nearly 6% of the U.S. gross domestic product, and nearly 5%
of U.S. employment. Yet American companies lose $18-20 billion every
year due to international piracy of copyrighted works. The film
industry alone estimates its annual losses due to counterfeiting in
excess of $2.3 billion, even though full-length motion pictures are not
yet available on the Internet. The recording industry estimates that it
looses more than $1.2 billion each year due to piracy, with seizures of
bootleg CDS up some 1,300 percent in 1995. These figures will only
continue to grow with the recent technological developments that permit
creative products to be pirated and distributed globally with the touch
of a button, significantly weakening international protection for the
copyrighted works that are such a critical part of this country's
economic backbone and costing the U.S. economy exports and jobs.
The WIPO treaties will raise the minimum standards for copyright
protection worldwide, providing the U.S. with the tools it needs to
combat international piracy. But the treaties will be meaningless
unless they are ratified by a large number of countries. It is
therefore up to the United States to demonstrate leadership on this
issue by ratifying and implementing the treaties promptly. Swift U.S.
action will encourage global implementation of the WIPO treaties, and
will signal U.S. determination to curb the threat that international
piracy poses to U.S. jobs and the economy.
This bill takes the approach that the substantive protections in U.S.
copyright law already meet the standards of the new WIPO treaties, and
therefore very few changes to U.S. law are necessary in order to
implement the treaties. In addition to minimal technical amendments,
the treaties require signatory countries to provide legal protections
against the circumvention of certain technologies that copyright owners
use to protect their works and to guard against the alteration or
falsification of identifying data known as copyright management
information (CMI).
This ``minimalist'' bill is the product of much hard work by the
Administration, and represents many months of negotiations among
interested parties, including software companies, computer
manufacturers, and the copyright community. This bill is a compromise;
it does not represent any group's ``wish list'' for WIPO implementing
legislation. The Administration has tried to craft a bill that
addresses only those issues required by the treaties without altering
the substantive protections and exceptions provided under U.S.
copyright law or injecting extraneous issues into the treaty process.
The Administration has tried to preserve the delicate balance that U.S.
law already strikes between copyright owners and users, since the WIPO
treaties were not intended to upset that balance.
I urge my colleagues to give this legislation serious consideration.
The Judiciary Committee will begin hearings on this bill shortly. I
would like to see the treaties go into effect this year, and I will try
hard to meet this goal. However, the late date on which the
Administration has submitted the legislation may render this goal
unachievable.
In any event, we must act promptly to ratify and implement the WIPO
treaties in order to demonstrate leadership on international copyright
protection, so that the WIPO treaties can be implemented globally and
so that further theft of our nation's most valuable creative products
may be prevented.
Mr. President, I ask unanimous consent that a copy of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1121

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That

SECTION 1. SHORT TITLE.

This Act may be cited as the ``WIPO Copyright and
Performances and Phonograms Treaty Implementation Act of
1997''.

SEC. 2. TECHNICAL AMENDMENTS.

(a) Section 101 of Title 17, United States Code is
amended--
(1) by deleting the definition of ``Berne Convention
work'';
(2) in the definition of ``The `country of origin; of a
Berne Convention work,'' by deleting ``The `country of
origin; of a Berne Convention work,'', capitalizing the first
letter of the word ``for'', deleting ``is the United States''
after ``For purposes of section 411,'', and inserting ``a
work is a `United States work' only'' after ``For purposes of
section 411,'',
(3) in subsection (1)(B) of the definition of ``The
`country' of a Berne Convention work'', by inserting ``treaty
party of parties'' and deleting ``nation of nations adhering
to the Berne Convention'';
(4) in subsection (1)(C) of the definition of ``The
`country of origin' of a Berne Convention work'', by
inserting ``is not a treaty party'' and deleting ``does not
adhere to the Berne Convention'';
(5) in subsection (1)(D) of the definition of ``The
`country of origin' of a Berne Convention work'', by
inserting ``is not a treaty party'' and deleting ``does not
adhere to the Berne Convention'';
(6) in section (3) of the definition of ``The `country of
origin' of a Berne Convention work'', by deleting ``For the
purposes of section 411, the `country of origin' of any other
Berne Convention work is not the United States'';
(7) after the definition for ``fixed'', by inserting ``The
`Gevena Phonograms Convention' is the Convention for the
Protection of Producers of Phonograms Against Unauthorized
Duplication of Their Phonograms, concluded at Geneva,
Switzerland on October 29, 1971.'';
(8) after the definition for ``including''; by inserting
``An `international agreement' is--
``(1) the Universal Copyright Convention;
``(2) the Geneva Phonograms Convention;
``(3) the Berne Convention;
``(4) the WTO Agreement;
``(5) the WIPO Copyright Treaty;
``(6) the WIPO Performances and Phonograms Treaty; and
``(7) any other copyright treaty to which the United States
is a party,'';
(9) after the definition for ``transmit'', by inserting ``A
`treaty party' is a country or intergovernmental organization
other than the United States that is a party to an
international agreement.'';
(10) after the definition for ``widow'', by inserting ``The
`WIPO Copyright Treaty' is the WIPO Copyright Treaty
concluded at Geneva, Switzerland, on December 20, 1996.'';
(11) after the definition for ``The `WIPO Copyright Treaty'
'', by inserting ``The `WIPO Performances and Phonograms
Treaty' is the WIPO Performances and Phonograms Treaty
concluded at Geneva, Switzerland on December 20, 1996.'', and
(2) by inserting, after the definition for ``work for
hire'', ``The `WTO Agreement' is the Agreement Establishing
the World Trade Organization entered into on April 15, 1994.
The terms ``WTO Agreement'' and ``WTO member country'' have
the meanings given those terms in paragraph (9) and (10)
respectively of section 2 of the Uruguay Round Agreements
Act.''
(b) Section 104 of Title 17, United States Code is
amended--
(1) in section (b)(1) by deleting ``foreign nation that is
a party to a copyright treaty to which the United States is
also a party'' and inserting ``treaty party'';
(2) in section (b)(2) by deleting ``party to the Universal
Copyright Convention'' and inserting ``treaty party'';
(3) by renumbering the present section (b)(3) as (b)(5) and
moving it to its proper sequential location and inserting a
new section (b)(3) and to read:
``(3) the work is a sound recording that was first fixed in
a treaty party; or ``;
(4) in section (b)(4) by deleting ``Berne Convention work''
and inserting ``pictorial, graphic or sculptural work that is
incorporated in a building or other structure, or an
architectural work that is embodied in a building and the
building or structure is located in the United States or a
treaty party'';
(5) by renumbering present section (b)(5) as (b)(6),
(6) by inserting a new section (b)(7) to read:

``For purposes of paragraph (2), a work that is published
in the United States or a treaty party within thirty days of
publication in foreign nation that is not a treaty party
shall be considered first published in the United States or
such treaty party as the case may be.'';

and
(7) by inserting a new section (d) to read:
``(d) Effect of Phonograms Treaties.--Notwithstanding the
provisions of subsection (b), no works other than sound
recordings shall be eligible for protection under this

[[Page S8584]]

title solely by virtue of the adherence of the United States
to the Geneva Phonograms Convention or the WIPO Performances
and Phonograms Treaty.''.
(c) Section 104A(h) of Title 17, United States Code, is
amended--
(1) in paragraph (1), by deleting ``(A) a nation adhering
to the Berne Convention or a WTO member country, or (B)
subject to a Presidential proclamation under subsection
(g),'' and inserting
``(A) a nation adhering to the Berne Convention,
``(B) a WTO member country;
``(C) a national adhering to the WIPO Copyright Treaty;
``(D) a nation adhering to the WIPO Performance and
Phonograms Treaty, or
``(E) subject to a Presidential proclamation under
subsection (g)'';
(2) paragraph (3) is amended to read as follows--
``(3) the term ``eligible country'' means a nation, other
than the United States that--
``(A) becomes a WTO member country after the date of
enactment of the Uruguay Round Agreements Act;
``(B) on the date of enactment is, or after the date of
enactment becomes, a nation adhering to the Berne Convention;
``(C) adheres to the WIPO Copyright Treaty;
``(D) adheres to the WIPO Performances and Phonograms
Treaty; or
``(E) after such date of enactment becomes subject to a
proclamation under subsection (g)'';
(3) in paragraph (6)(C)(iii), by deleting ``and'' after
``eligibility'';
(4) at the end of paragraph (6)(D), by deleting the period
and inserting ``; and'';
(5) by adding the following new paragraph (6)(E):
``(E) if the source country for the work is an eligible
country solely by virtue of its adherence to the WIPO
Performances and Phonograms Treaty, is a sound recording'',
(6) in paragraph (8)(B)(i), by inserting ``of which''
before ``the majority'' and striking ``of eligible
countries''; and
(7) by deleting paragraph (9).
(d) Section 411 of Title 17, United States Code, is
amended--
(1) in subsection (a), by deleting ``actions for
infringement of copyright in Berne Convention works whose
country of origin is not the United States and''; and
(2) in subsection (a), by inserting ``United States'' after
``no action for infringement of the copyright in any''.
(e) Section 507(a) of title 17, United States Code, is
amended by adding at the beginning, ``Except as expressly
provided elsewhere in this title.

SEC. 3. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT MANAGEMENT
INFORMATION.

Title 17, United States code, is amended by adding the
following new chapter: ``Chapter 12.--COPYRIGHT PROTECTION
AND MANAGEMENT SYSTEMS
``Sec.
``1201. Circumvention of Copyright Protection Systems
``1202. Integrity of Copyright Management Information
``1203. Civil Remedies
``1204. Criminal Offenses and Penalties

``Sec. 1201. Circumvention of Copyright Protection Systems

``(a)(1) No person shall circumvent a technological
protection measure that effectively controls access to a work
protected under title 17.
``(2) No person shall manufacture, import, offer to the
public, provide or otherwise traffic in any technology,
product, service, device, component, or part thereof that
``(A) is primarily designed or produced for the purpose of
circumventing a technological protection measure that
effectively controls access to a work protected under Title
17,
``(B) has only limited commercially significant purpose or
use other than to circumvent a technological protection
measure that effectively controls access to a work protected
under Title 17, or
``(C) is marketed by that person or another acting in
concert with that person for use in circumventing a
technological protection measure that effectively controls
access to a work protected under Title 17.
``(3) As used in this subsection,
``(A) `circumvent a technological protection measure' means
to descramble a scrambled work, to decrypt an encrypted work,
or otherwise to avoid, bypass, remove, deactivate, or impair
a technological protection measure, without the authority of
the copyright owner.
``(B) a technological protection measure `effectively
controls access to a work' if the measure, in the ordinary
course of its operation, requires the application of
information, or a process or a treatment, with the authority
of the copyright owner, to gain access to the work.
``(b)(1) No person shall manufacture, import, offer to the
public, provide or otherwise traffic in any technology,
product, service, device, component, or part thereof that
``(A) is primarily designed or produced for the purpose of
circumventing protection afforded by a technological
protection measure that effectively protects a right of a
copyright owner under Title 17 in a work or a portion
thereof,
``(B) has only limited commercially significant purpose or
use other than to circumvent protection afforded by a
technological protection measure that effectively protects a
right of a copyright owner under Title 17 in a work or a
portion thereof, or
``(C) is marketed by that person or another acting in
concert with that person for use in circumventing protection
afforded by a technological protection measure that
effectively protects a right of a copyright owner under Title
17 in a work or a portion thereof.
``(2) As used in this subsection,
``(A) `circumvent protection afforded by a technological
protection measure' means avoiding, bypassing removing,
deactivating, or otherwise impairing a technological
protection measure;
``(B) a technological protection measure `effectively
protects a right of a copyright owner under Title 17' if the
measure, in the ordinary course of its operation, prevents,
restricts, or otherwise limits the exercise of a right of a
copyright owner under Title 17.
``(c) The importation into the United States, the sale for
importation, or the sale within the United States after
importation by the owner, importer or consignee of any
technology, product, service, device, component, or part
thereof as described in this section shall be actionable
under section 1337 of Title 19.
``(d) Nothing in this section shall affect rights,
remedies, limitations, or defenses to copyright infringement,
including fair use, under Title 17.
``(e) This section does not prohibit any lawfully
authorized investigative, protective, or intelligence
activity of a law enforcement agency of the United States, a
State, or a political subdivision of a State, or of an
intelligence agency of the United States.

``Sec. 1202. Integrity of Copyright Management Information

``(a) False Copyright Management Information.--No person
shall knowingly--
(1) provide copyright management information that is false,
or
(2) distribute or import for distribution copyright
management information that is false, with the intent to
induce, enable, facilitate or conceal an infringement of any
right under Title 17.
``(b) Removal or Alteration of Copyright Management
Information.--No person shall, without the authority of the
copyright owner or the law--
``(1) intentionally remove or alter any copyright
management information,
``(2) distribute or import for distribution copyright
management information knowing that the copyright management
information has been removed or altered without authority of
the copyright owner or the law, or
``(3) distribute, import for distribution, or publicly
perform works, copies of works, or phonorecords knowing that
copyright management information has been removed or altered
without authority of the copyright owner or the law,

knowing, or, with respect to civil remedies under section
1203, having reasonable grounds to know, that it will induce,
enable, facilitate or conceal an infringement of any right
under Title 17.
``(c) Definition.--As used in this chapter, `copyright
management information; means the following information
conveyed in connection with copies or phonorecords of a work
or performances or displays of a work, including in digital
form:
``(1) The title and other information identifying the work,
including the information set forth on a notice of copyright;
``(2) The name of, and other identifying information about,
the author of a work;
``(3) The name of, and other identifying information about,
the copyright owner of the work, including the information
set forth in a notice of copyright;
``(4) Terms and conditions for use of the work;
``(5) Identifying numbers or symbols referring to such
information or links to such information; or
``(6) Such other information as the Register of Copyrights
may prescribe by regulation, except that the Register of
Copyrights may not require the provision of any information
concerning the user of a copyrighted work.''
``(d) This section does not prohibit any lawfully
authorized investigative, protective, or intelligence
activity of a law enforcement agency of the United States, a
State, or a political subdivision of a State, or of an
intelligence agency of the United States.

``Sec. 1203. Civil Remedies

``(a) Civil Action.--Any person injured by a violation of
section 1201 or 1202 may bring a civil action in an
appropriate United States district court for such violation.
``(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 in pending, may order the
impounding, on such terms as it deems reasonable, of any
device or product that is in the custody or 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

[[Page S8585]]

or product involved in the violation that is in the
custody or control of the violator or has been impounded
under subsection (2).
``(c) Award of Damages.--
``(1) In general.--Except as otherwise provided in this
chapter, a person committing a violation of section 1201 or
1202 is liable for either--
``(A) the actual damages and any additional profits of the
violator, as provided by subsection (2), or
``(B) statutory damages, as provided by subsection (3).
``(2) Actual damages.--The court shall award to the
complaining party the actual damages suffered by the party 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 1201 in the sum of not
less than $200 or more than $2,500 per act of circumvention
device, product, component, 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 1202 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 1201 or 1202 within
three years after a final judgment was entered against the
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 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.

``Sec. 1204. Criminal Offenses and Penalties.

``(a) Any person who violates section 1201 or 1202
willfully and for purposes of commercial advantage or private
financial gain shall be fined not more than $500,000 or
imprisoned for not more than 5 years, or both for the first
offense and shall be fined not more than $1,000,000 or
imprisoned for not more than 10 years, or both for any
subsequent offense.''
``(b) Notwithstanding section 507(a) of this title, no
criminal proceeding shall be brought under section 1204
unless such proceeding is commenced within five years after
the cause of action arose.''

SEC. 4. CONFORMING AMENDMENTS.

The table of chapters for Title 17, United States Code, is
amended by adding at the end the following:

``12. COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS...............1201''.

SEC. 5. EFFECTIVE DATE.

The amendments made by this Act shall take effect on the
date of the enactment of this Act, except clause (5) of the
definition of ``international agreement'' as amended by
section 2(a)(8) of this Act, section 2(a)(10) of this Act,
clause (C) of section 104(h)(1) of Title 17 as amended by
section 2(c)(1) of this Act and clause (C) of section
104(h)(3) of Title 17 as amended by section 2(c)(2) of this
Act shall take effect upon entry into force of the WIPO
Copyright Treaty with respect to the United States, and
clause (6) of the definition of ``international agreement''
as amended by section 2(a)(8) of this Act, section 2(a)(11)
of this Act, section 2(b)(7) of this Act, clause (D) of
section 104A(h)(1) of Title 17 as amended by section 2(c)(2)
of this Act, and sections 2(c)(4) and 2(c)(5) of this Act
shall take effect upon entry into force of the WIPO
Performances and Phonograms Treaty with respect to the United
States.

Mr. LEAHY. Mr. President, the successful adoption by the World
Intellectual Property Organization [WIPO] of two new copyright
treaties--one on written material and one on sound recordings--in
Geneva last December was appropriately lauded in the United States. The
WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty
will give a significant boost to the protection of intellectual
property rights around the world, and stand to benefit important
American creative industries--from movies, recordings, computer
software and many other copyrighted materials that are subject to
piracy on-line.
According to Secretary Daley of the Department of Commerce, for the
most part, ``the treaties largely incorporate intellectual property
norms that are already part of U.S. law.'' What the treaties will do is
give American owners of copyrighted material an important tool to
protect their intellectual property in those countries that become a
party to the treaties. With an ever-expanding global marketplace, such
international protection is critical to protect American companies and,
ultimately, American jobs and the U.S. economy.
Over the past few months, I spoke and wrote to Secretary Daley urging
him to transmit without delay the administration's proposal for
implementing legislation. I am very pleased that earlier this week, the
administration did so. The legislative package we received is an
excellent start for moving forward, and I commend the administration,
Secretary Daley and, in particular, Assistant Secretary Bruce Lehman of
the Patent and Trademark Office for their hard work on this proposal.
I am glad to introduce this legislation, with Senator Hatch, on
behalf of the administration. I hope we will take this matter up for
hearings and further deliberation and action promptly after the recess.
In sum, this bill makes certain technical changes to conform our
copyright laws to the treaties and substantive amendments to comply
with two new Treaty obligations. Specifically, the treaties oblige the
signatories to provide legal protections against circumvention of
technological measures used by copyright owners to protect their works,
and against violations of the integrity of copyright management
information [CMI], which identifies a work, its author, the copyright
owners and any information about the terms and conditions of use of the
work. The bill adds a new chapter to U.S. copyright law to implement
the anti-circumvention and CMI provisions, along with corresponding
civil and criminal penalties.
Technological developments, such as the development of the Internet
and remote computer information data bases, are leading to important
advancements in accessibility and affordability of art, literature,
music, film and information and services for all Americans. As Vinton
Cerf, the coinventor of the computer networking protocol for the
Internet, recently stated in The New York Times:

The Internet is now perhaps the most global and democratic
form of communications. No other medium can so easily render
outdated our traditional distinctions among localities,
regions and nations.

We see opportunities to break through barriers previously facing
those living in rural settings and those with physical disabilities.
Democratic values can be served by making more information and services
available.
These methods of distribution also dramatically affect the role of
copyright. Properly balancing copyright interests to encourage and
reward creativity, while serving the needs of public access to works,
can be a challenge. The public interest requires the consideration and
balancing of such interests. In the area of creative rights that
balance has rested on encouraging creativity by ensuring rights that
reward it while encouraging its public performance, distribution and
display.
I was glad to have played a role in the development and enactment of
the Digital Performance Right in Sound Recording Act, Public Law 104-
39. That legislation served in many respects as the precursor to the
WIPO Treaty on performance rights adopted last December. Performance
rights for sound recordings is an issue that has been in dispute for
over 20 years. I was delighted in 1995 when we were finally able to
enact a U.S. law establishing that right.
I believe that musicians, singers and featured performers on
recordings ought to be compensated like other creative artists for the
public performances of works that they create and that we all enjoy. I
wanted companies that export American music not to be disadvantaged
internationally by the lack of U.S. recognition of such a performance
right. Most of all, I wanted to be sure that our laws be fair to all
parties--to performers, musicians, songwriters, music publishers,
performing rights societies, emerging companies expanding new
technologies, and, in particular, consumers and the public.
I am glad to have been able to play a role in redesigning the
performance right in sound recording law to meet these objectives. Our
substitute, which was ultimately enacted, preserved existing rights,
encouraged the development of new technologies, and promoted
competition as the best protection for consumers. Working with Senator
Thurmond, then chairman of the Antitrust Subcommittee, and with the

[[Page S8586]]

help of the Antitrust Division of the Department of Justice, we were
able to strengthen the bill in significant regard. I was pleased to
cosponsor the substitute and to work for its passage.
I have also been supportive of copyright protection and
anticircumvention legislation over the past several years and been
working on ways to utilize copyright management information to protect
and inform consumers.
I anticipate that at Judiciary Committee hearings on this important
measure, we will examine the impact of the treaties and this
implementing legislation, both domestically and internationally, on the
careful balance we always strive to maintain between the authors'
interest in protection along with the public's interest in the
accessibility of information.
Ours is a time of unprecedented challenge to copyright protection.
Copyright has been the engine that has traditionally converted the
energy of artistic creativity into publicly available arts and
entertainment. Historically, the Government's role has been to
encourage creativity and innovation by protecting copyrights that
create incentives for the dissemination to the public of new works and
forms of expression. That is the tradition which I intend to continue.
Mr. KOHL. Mr. President, along with my colleagues, Senators Hatch and
Leahy, I rise in support in the WIPO Copyright and Performances and
Phonograms Treaty Implementation Act of 1997. This proposal, while
clearly not a final product, is nevertheless an important step forward
in our ongoing battle against illegal copying of protected works--such
as movies, books, musical recordings, and software. Let me also commend
the administration, especially the Commerce Department and the Patent
and Trademark Office, for their hard work in pushing for the underlying
treaty and assembling a workable proposal to ensure the value of
intellectual property.
What makes this legislation so important to our economy? Consider
that the copyright industries had over $53 billion in foreign sales in
1995, surpassing every other export industry except automobiles and
agriculture. Also consider that the copyright industries employ nearly
6 million people in the United States, or about 4.8 percent of our work
force. But despite the tremendous contribution these businesses make to
our economy, we still lose more than $15 billion each year due to
foreign copyright piracy, according to some estimates. That is not only
wrong; it is unacceptable.
Mr. President, we need to maintain our status as an international
leader in the fight against illegal copying because many nations look
to us for guidance in setting their own standards for copyright
protection. And we need to show strong leadership in this area because,
otherwise, some nations with troubling histories of copyright piracy
will be even less likely to improve their records. This proposal moves
us in the right direction.
Some of my colleagues may remember back in 1991 when I introduced
similar legislation, the Motion Picture Anti-Piracy Act, to deal with
the problem of video bootlegging. Although today's technology is more
advanced than in 1991, the problem of unauthorized copying remains.
Indeed, it has in some respects grown even worse. The spread of copying
technology worldwide, including piracy that takes place with the touch
of a button over the Internet, begins to explain the scope of this
problem. And because the piracy problem extends across national
borders, the best way to address unauthorized copying is through
international agreements that go after devices deliberately designed to
circumvent technological protection measures.
Mr. President, this bill generally takes the right approach. It makes
it illegal to circumvent various copyright protection systems, it
protects the integrity of copyright management information, and it
provides for both civil and criminal penalties to deter potential
violators. Some have suggested that it goes too far, while others argue
that the bill does not go far enough. In any event, we should view this
proposal as a point of departure rather than a final product. And we
should make certain, as the measure moves forward, that it doesn't
restrict products that have other beneficial uses.
Mr. President, let me make one additional point. The bill does not
address the issue of online service provider liability. This issue
needs to be discussed and resolved, whether as part of this legislation
or separately. But it shouldn't slow down the consideration of the bill
we have before us. The WIPO Implementation Act is a significant step in
curbing illegal copying, and I urge my colleagues to join me in
supporting it.
______

By Mr. KOHL (for himself, Mr. Grassley, and Mr. Reid):
S. 1122. A bill to establish a national registry of abusive and
criminal patient care workers and to require criminal background checks
of patient care workers; to the Committee on Finance.

THE PATIENT ABUSE PREVENTION ACT

Mr. KOHL. Mr. President, I rise to introduce the Patient Abuse
Prevention Act, a bill to establish greater safeguards in our health
care system for vulnerable Americans. I am pleased to be joined in
offering this bill by Senate Committee on Aging Chairman Charles
Grassley and Senator Harry Reid.
One of the most difficult times for any family is when a senior or
disabled member enters a long-term care arrangement. That family should
not also be faced with the worry that the long-term care facility or
its staff may pose a threat.
Whatever health care setting a family chooses, whether institutional
or community-based, there should be assurances that care will be
provided by trained and compassionate professionals.
Thankfully, that is the case in most facilities. But in a few cases--
and that is a few cases too many--a long-term care facility hires
someone who doesn't have the best interests of the patient in mind.
A disturbing number of cases have been reported where health care
workers with criminal backgrounds have been cleared to work in a long-
term care facility and have abused patients in their care. If only
greater attention was given to discovering the background of these
applicants, the abuses may have been prevented.
A recent report from the Nation's long-term care ombudsmen indicates
that, in 29 States surveyed, 7,043 cases of abuse, gross neglect or
exploitation occurred in nursing homes and board and care facilities.
According to a random-sample survey of nursing home staff, 10 percent
admitted committing at least one act of physical abuse in the preceding
year, and 40 percent committed psychological abuse. Thirty-six percent
of the sample had seen at least one incident of physical abuse in the
preceding year by other staff members.
These statistics may only scratch the surface of the problem. It's
quite likely that the incidence of abuse is far more prevalent. In
fact, the Office of Inspector General at the Department of Health and
Human Services has reported that 46 percent of respondents questioned
believed abuse is only sometimes or rarely reported.
Mr. President, the vast majority of health care facilities and their
employees are dedicated and work hard under stressful conditions to
provide the best care possible. But it only takes a few abusive staff
to cast a dark shadow over what should be a healing environment.
Although some facilities run thorough background checks on
prospective employees, most do not. And even if they wanted to run more
complete checks, facilities are prevented due to a fractured and
inefficient system.
It is far too easy for a health care worker with a criminal or
abusive background to gain employment and prey on the most vulnerable
patients.
Why is this? Because current State and national safeguards are
inadequate to screen out abusive workers. All States are required to
maintain nurse aide registries, but these registries are not
comprehensive or efficiently maintained.
Many States limit their registries to nursing home aides, failing to
cover home health aides, assisted living workers and hospital aides.
Most States don't require criminal background checks of long-term care
workers. Further, due to hit and miss investigations, many reports of
abuse fall through the cracks.
The problem I find most troubling is the lack of information sharing
between States about known criminal

[[Page S8587]]

and abusive workers. There are no Federal requirements or guidelines on
information sharing about abusive workers--even those who have been
convicted in a court of law.
Because no national registry of abusive health care workers exists,
people with histories of abuse or serious crimes in one State can
simply travel to another State to find work. These workers can also
move from a nursing home to home health agencies or to hospitals
without ever undergoing a complete background check.
Problems also exist with reporting abuse. Rather than going through
the trouble of making a report and drawing possible unwanted attention,
a facility often will dismiss a worker without a report ever filed.
Further, States hesitate to document problem workers due to the fact
that a listing means barring a worker from nursing homes for life.
Much of the public scrutiny on patient abuse has focused on nursing
homes. But this is not the only care setting that should have increased
protections. Home health care has been dramatically growing as a
preferred long-term care option. Yet, protections for home care
recipients are even more lax than those for nursing home residents.
While I am pleased to report that some States, including Wisconsin,
have begun working to establish criminal background checks and improve
their registries, it is clear that effective national protections must
be in place to fill the gaps in the system.
The legislation I offer today builds on recommendations by State
ombudsmen programs who are the watch guards for long-term care
residents. This effort is also in response to calls from consumer
groups and the long-term care industry for a streamlined, accurate way
to screen potential workers for abusive or criminal histories.
The Patient Abuse Prevention Act creates a national registry of
abusive health care workers and requires criminal background checks for
those entrusted to care for vulnerable patients.
This would enable States and employers--either by computer or by
phone--to check if a potential employee has a criminal record or other
problem in their past that should preclude them from caring for the
infirm.
The national registry would also create a coordinated information
network between States so that violators could not simply travel to
another state to find work in a nursing home or other setting.
By far, the best way to stop abuse is to address the situations that
lead to problem behaviors. Most studies that have looked into patient
abuse indicate that better training would make a big difference.
Therefore, this bill creates a demonstration program to investigate
best practices in patient abuse prevention. What we learn from this
program can then be disseminated by the Department of Health and Human
Services and made available to all health care settings.
Mr. President, when a patient moves into a nursing home, or hires a
home health care agency, they are entrusting that company with an
enormous responsibility.
Any instance of patient abuse is intolerable and inadequate
background checks of health care workers is inexcusable.
I believe that protecting our Nation's elderly and infirm Americans
from abuse, neglect, and mistreatment should be a national priority.
When senior citizens and disabled Americans check into a nursing home
or other care setting, they should not have to check their right to a
safe environment at the door.
I urge my colleagues to join in this effort so that all Americans can
rest more comfortably knowing that their loved ones are receiving the
best and safest care possible.
Mr. President, I ask that the text of the Patient Abuse Prevention
Act, along with a comprehensive summary now appear in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 1122

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 ``Patient Abuse Prevention
Act''.

SEC. 2. ESTABLISHMENT OF NATIONAL REGISTRY OF ABUSIVE
WORKERS.

(a) In General.--The Secretary shall establish, under the
health care fraud and abuse data collection program
established under section 1128E of the Social Security Act
(42 U.S.C. 1320a-7e), a registry to be known as the
``National Registry of Abusive Workers'' (hereafter referred
to in this section as the ``Registry'') to collect and
maintain data on covered health care workers (as defined in
subsection (e)) who have been the subject of reports of
patient abuse.
(b) Submission of Information By State Registries.--Each
State registry under sections 1819(e)(2) and 1919(e)(2) of
the Social Security Act (42 U.S.C. 1395i-3(e)(2) and
1396r(e)(2)) shall submit to the Registry any existing or
newly acquired information contained in the State registry
concerning covered health care workers who have been the
subject of confirmed findings of patient abuse.
(c) Submission of Information By State.--Each State shall
report to the Registry any existing or newly acquired
information concerning the identity of any covered health
care worker who has been found to have committed an abusive
act involving a patient, including the identity of any such
worker who has been convicted of a Federal or State crime as
described in section 1128(a)(2)(A) of the Social Security Act
(42 U.S.C. 1320a-7(a)(2)(A)). The State shall provide such
workers with a right to issue a statement concerning the
submission of information to the Registry under this
subsection. Any information disclosed concerning a finding of
an abusive act shall also include disclosure of any statement
submitted by a worker in the registry relating to the finding
or a clear and accurate summary of such a statement.
(d) Submission of Information by Facilities.--Each covered
health care facility shall report to the State concerning a
covered health care worker who has been found to have engaged
in an act of patient abuse. The State shall, in accordance
with the procedures described in part 483 of title 42, Code
of Federal Regulations (as in effect on July 1, 1995),
conduct an investigation with respect to a report under this
subsection to determine the validity of such a report.
(e) Background Check.--
(1) Requirements.--
(A) In general.--Each covered health care facility (as
defined in subsection (f)), prior to employing a covered
health care worker, shall--
(i) in the case of a covered health care worker who has not
otherwise undergone a criminal background check as part of
the licensing requirements of a State, as determined under
regulations promulgated by the Secretary, provide for the
conduct by the State of a criminal background check (through
an existing State database (if any) and through the
Integrated Automated Fingerprint Identification System)
concerning such worker, and provide the worker with prior
written notice of the requirement for such a background
check;
(ii) obtain from a covered health care worker prior to
employment a written certification that such worker does not
have a criminal record, and that a finding of abuse has not
been made relating to such worker, that would preclude such
worker from carrying out duties that require direct patient
care; and
(iii) in the case of all such workers, contact the State
health care worker registries established under sections
1819(e)(2) and 1919(e)(2) which shall also contact the
Registry for information concerning the worker.
(B) Imposition of fees.--A State may assess a covered
health care facility a fee for the conduct of a criminal
background check under subparagraph (A)(i) in an amount that
does not exceed the actual cost of the conduct of the
background check. Such a facility may recover from the
covered health care worker involved a fee in an amount equal
to not more than 50 percent of the amount of the fee assessed
by the State for the criminal background check.
(C) Effective date.--The requirement in subparagraph (A)(i)
shall become applicable on January 1, 1999, or on such
earlier date as the Director of the Federal Bureau of
Investigation determines that the Integrated Automated
Fingerprint Identification System has become operational.
(2) Probationary employment.--Each covered health care
facility shall provide a probationary period of employment
for a covered health care worker pending the completion of
the background checks required under paragraph (1)(A). Such
facility shall maintain direct supervision of the covered
health care worker during the worker's probationary period of
employment.
(3) Penalty.--
(A) In general.--A covered health care facility that
violates paragraph (1) or (2) shall be subject to a civil
penalty in an amount not to exceed--
(i) for the first such violation, $2,000; and
(ii) for the second and each subsequent violation within
any 5-year period, $5,000.
(B) Knowing retention of worker.--In addition to any civil
penalty under subparagraph (A), a covered health care
facility that--
(i) knowingly continues to employ a covered health care
worker in violation of paragraph (1) or (2) in a position
involving direct patient care; or
(ii) knowingly fails to report a covered health care worker
who has been determined to have committed patient abuse;
shall be subject to a civil penalty in an amount not to
exceed $5,000 for the first such

[[Page S8588]]

violation, and $10,000 for the second and each subsequent
violation within any 5-year period.
(f) Definitions.--In this section:
(1) Covered health care facility.--The term ``covered
health care facility'' means--
(A) with respect to application under the medicare program
under title XVIII of the Social Security Act (42 U.S.C. 1395
et seq.), a provider of services, as defined in section
1861(u) of such Act (other than a fund for purposes of
sections 1814(g) and 1835(e));
(B) with respect to application under the medicaid program
under title XIX of the Social Security Act (42 U.S.C. 1396 et
seq.), any nursing facility, home health agency, community-
based residential facility, adult day care center, adult
family home, assisted living facility, hospice program,
hospital, treatment facility, personal care worker agency,
supportive home care worker agency, board and care facility,
or any other entity that receives assistance or benefits
under the medicaid program under that title;
(C) a facility of the National Institutes of Health;
(D) a facility of the Indian Health Service;
(F) a health center under section 330 of the Public Health
Service Act (42 U.S.C. 254b);
(G) a hospital or other patient care facility owned or
operated under the authority of the Department of Veterans
Affairs or the Department of Defense.
(2) Covered health care worker.--The term ``covered health
care worker'' means any individual that has direct contact
with a patient of a covered health care facility under an
employment or other contract, or under a volunteer agreement,
with such facility. Such term includes individuals who are
licensed or certified by the State to provide such services,
and non-licensed individuals providing such services as
defined by the Secretary including nurse assistants, nurses
aides, home health aides, and personal care workers and
attendants.
(3) Patient abuse.--The term ``patient abuse'' means any
incidence of abuse, neglect, mistreatment, or
misappropriation of property of a patient of a covered health
care facility. The terms ``abuse'', ``neglect'',
``mistreatment'', and ``misappropriation of property'' shall
have the meanings given such terms in part 483 of title 42,
Code of Federal Regulations.
(4) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(g) Consultation.--In carrying out this section the
Secretary shall consult with the Director of the Federal
Bureau of Investigation.
(h) Regulations.--Not later than 6 months after the date of
enactment of this Act, the Secretary shall promulgate
regulations to carry out this section. With respect to
subsections (b) and (c), the regulations shall call for the
submission of information to the Registry not later than 30
days after the date of a conviction or on which a finding is
made.

SEC. 3. EXCLUSION OF CERTAIN INDIVIDUALS FROM PARTICIPATION
IN PROGRAMS.

(a) Mandatory Lifetime Exclusion.--Section 1128(a) of the
Social Security Act (42 U.S.C. 1320a-7(a)) is amended by
adding at the end the following:
``(5) Criminal conviction.--Any individual or entity that
has been--
``(A) convicted, under Federal or State law, of a criminal
offense involving a crime against bodily security, including
homicide, battery, endangerment of safety, sexual assault,
child or elder abuse, and spousal abuse; or
``(B) found to have--
``(i) knowingly continued to employ an individual described
in subparagraph (A) in a position involving direct patient
care; or
``(ii) knowingly failed to report an individual who has
been determined to have committed a crime described in
subparagraph (A).''.
(b) Permissive Exclusion.--
(1) In general.--Section 1128(b) of the Social Security Act
(42 U.S.C. 1320a-7(b)) is amended--
(A) in subsection (b), by adding at the end the following:
``(16) Finding relating to patient abuse.--Any individual
or entity that--
``(A) is or has been the subject of a specific documented
finding of patient abuse by a State (as determined under
procedures utilized by a State under section 1819(e)(2) or
1919(e)(2)); or
``(B) has been found to have--
``(i) knowingly continued to employ an individual described
in subparagraph (A) in a position involving direct patient
care; or
``(ii) knowingly failed to report an individual who has
been determined to have committed patient abuse as described
in subparagraph (A).''; and
(B) in subsection (c)(3), by adding at the end the
following:
``(G) In the case of an exclusion of an individual or
entity under subsection (b)(16), the period of exclusion
shall be determined in accordance with regulations
promulgated by the Secretary based on the severity of the
conduct that is the subject of the exclusion.''.
(2) Regulations.--Not later than 6 months after the date of
enactment of this Act, the Secretary of Health and Human
Services shall promulgate regulations to establish periods of
exclusion for purposes of section 1128(c)(3)(G) of the Social
Security Act.
(c) Exclusions Apply to Any Entity Eligible for Federal
Reimbursement.--Section 1128 of the Social Security Act (42
U.S.C. 1320a-7) is amended by adding at the end the
following:
``(j) Applicability of certain exclusions.--The exclusion
(or direction to exclude) an individual or entity under
subsections (a)(2) and (b)(16) shall provide that such
individual or entity is excluded from working for or on
behalf of any entity that is eligible for reimbursement under
a Federal health care program, as defined in section
1128B(f).''.

SEC. 4. PREVENTION AND TRAINING DEMONSTRATION PROJECT.

(a) Establishment.--The Secretary of Health and Human
Services shall establish a demonstration program to provide
grants to develop information on best practices in patient
abuse prevention training (including behavior training and
interventions) for managers and staff of hospital and health
care facilities.
(b) Eligibility.--To be eligible to receive a grant under
subsection (a), an entity shall be a public or private
nonprofit entity and prepare and submit to the Secretary of
Health and Human Services an application at such time, in
such manner, and containing such information as the Secretary
may require.
(c) Use of Funds.--Amounts received under a grant under
this section shall be used to--
(1) examine ways to improve collaboration between State
health care survey and provider certification agencies, long-
term care ombudsman programs, the long-term care industry,
and local community members;
(2) examine patient care issues relating to regulatory
oversight, community involvement, and facility staffing and
management with a focus on staff training, staff stress
management and staff supervision;
(3) examine the use of patient abuse prevention training
programs by long-term care entities, including the training
program developed by the National Association of Attorneys
General, and the extent to which such programs are used; and
(4) identify and disseminate best practices for preventing
and reducing patient abuse.
(d) Authorization of Appropriations.--There is authorized
to be appropriated such sums as may be necessary to carry out
this section.
____

Patient Abuse Prevention Act

section 1. short title: ``patient abuse prevention act''

section 2. creation of national registry of abusive workers

The National Registry will be established and maintained by
the Department of Health and Human Services, Office of
Inspector General. HHS is currently setting up a health care
fraud and abuse data bank pursuant to the Health Insurance
Portability and Accountability Act. This bill would increase
the scope of that data bank and require active use of the
registry. HHS will coordinate criminal findings and listings
with the FBI.
Timeline--Within six months after the bill is enacted, HHS
will establish the National Abuse Registry and publish
regulations regarding submission of information from state
abuse registries to the National Registry. Abuse findings
will be reported to the Registry no later than 30 days
following confirmation.

contents/use of registry

States will submit current nurse aide abuse registries to
HHS following issuance of regulations on standard formats for
submission.
States will expand nurse aide abuse registries to include
other health care workers and personnel that have direct
contact with vulnerable patients. Current state registries
are limited to nurse aides, and in some states, home health
aides.
The National Registry will also include all health care
workers who have been convicted of an abuse, who have been
subject to an abuse finding or who have a criminal record
that has a bearing on the care of vulnerable patients.
Any provider hiring or employing a direct care worker would
contact the state for a check on the state registry and a
check of the National Registry. In addition, a criminal
background check will be initiated (described below).

reports of abuse

Current HHS regulations require long-term care facilities
to investigate and report abuses for further investigations
to the appropriate state agency. This codifies that
requirement.
Similarly, states must investigate patient abuse reports
and contact the National Registry with any confirmed abuses.
Any finding of abuse will be submitted to the National
Registry along with a statement of the person subject to the
finding. Any abuse disclosure shall be accompanied by the
statement.
States will also report known serious criminal convictions
of health care workers outside of the health care setting to
the national abuse registry. HHS will consult with the
Department of Justice to address privacy concerns and to
ensure coordination of the health care registry with national
criminal data bank maintained by the FBI.

mandatory criminal background checks

FBI criminal background checks will be required for those
direct patient care workers who have not been subject to a
criminal background check under state licensing requirements.
This includes licensed practitioners who have not undergone a
background check, nurse aides, home health aides

[[Page S8589]]

and other workers that will have unsupervised contact with a
vulnerable patient.
States will submit check requests to the FBI national
criminal background check system (fingerprint checks).
Because of the current backlog at FBI for fingerprint checks,
the provision is delayed until no later than January 1, 1999.
At that time, FBI should have the Integrated Automated
Fingerprint Identification System fully operational. That
system should operate within a two-day turn around and at
less cost than the current manual system.
Fees: States may charge fees to cover cost of FBI check,
not to exceed their cost. Facilities may split the cost of
the fees with the applicant.

penalties for non-compliance

If a provider fails to inquire with the state and hires a
known abuser, the provider is subject to a fine of $2,000 for
the first violation and $5,000 for subsequent violations. If
there is willful disregard of the background check and
reporting requirements, the fines increase up to $10,000.

section 3. changes to current law exclusions and obra '87 provisions

Current law requires that only nurse aides are listed on
state registries. This requirement will be expanded to cover
all direct case workers.
Current law already mandates exclusion for those convicted
of patient abuse or other crimes within the health care
setting. This adds a prohibition to health care workers who
have been convicted of the most serious crimes outside of the
health care setting, including homicide, battery, sexual
assault, and child, elder or spousal abuse.
Varying degrees of abuse ``findings'' will be allowed on
state and national registry. One of the main complaints of
providers and state ombudsman programs is that a ``finding''
of abuse equates to a ``death sentence'' by banning an
individual from working as a nurse aide for life. Due to the
severity of the ban, facilities may avoid pursuing a case and
States may hesitate to aggressively pursue abuse reports that
may or may not lead to a ``finding.'' Therefore, other health
facilities may be unaware of instances of abuse or
mistreatment. This bill will allow HHS to issue regulations
on varying degree's of findings and exclusions so that those
who have had problems will be listed, but not necessarily
prohibited from working for life.

definitions

Covered Care Workers--Patient care workers who have direct
assess to vulnerable patients.
Covered Health Care Facilities--those receiving Medicare or
Medicaid reimbursement, such as: nursing homes, skilled
nursing facilities, home health agencies, community-based
residential facilities, board and care facilities, adult day
care centers, adult family homes, assisted living facilities,
hospice programs, and hospitals. Federal health care
facilities are also subject to the requirements.
Abuse--Any finding of abuse, neglect, mistreatment of
residents or misappropriation of their property as defined in
current Federal regulations relating to nurse aides (CFR,
Sect. 483.13 (c)(ii).
Crime--those that reflect a clear disregard for the health,
well-being, safety and general welfare of other people must
be prohibited from working in direct contact with vulnerable
long term care residents or consumers. Current law already
requires exclusion of those convicted of health care fraud
and acts of abuse in the health care setting. Other crimes
may be cause for exclusion under current law at the
discretion of the Secretary of HHS. This bill adds a
mandatory exclusion of those convicted of serious crimes that
occur outside of the health care setting.

section 4. abuse prevention/training demonstration

Because the best way to combat patient abuse is to prevent
it from occurring, a new demonstration program is created to
compile information on best practices in abuse prevention
training for managers and staff of health care facilities.
The demonstration will focus on ways to improve collaboration
between state health care survey and certification agencies,
long-term care ombudsman programs, the long term care
industry and community members. Current patient abuse
prevention training programs will be studied for
effectiveness and application to other health care settings.
______

By Mr. HATCH (for himself, Mr. Baucus, Mr. D'Amato, and Mrs.
Boxer):
S. 1123. A bill to amend the Internal Revenue Code of 1986 relating
to the unemployment tax for individuals employed in the entertainment
industry; to the Committee on Finance

unemployment offset legislation

Mr. HATCH. Mr. President, I rise today to introduce legislation to
correct a problem with the way unemployment benefits are currently
offset when received by participants in a multiemployer pension plan.
Under our current Unemployment Compensation [UC] system States pay
and administer UC benefits. The federal government shares in the cost
of these benefits. Since 1980, the Federal Government has required that
UC benefits be offset or reduced by any pension benefits that an
individual receives from a base-period employer. A base period employer
is any employer of the recipient during the 52-week period before the
loss of a job.
Here is how it works. If you are involuntarily separated from the
same employer that is paying your retirement benefits and your
employment caused your retirement benefits to increase any unemployment
compensation you may qualify for will be offset by any retirement
income received for this same employer. Thus, retirement benefits
received could significantly reduce or eliminate any unemployment
benefits.
Mr. President, this policy was implemented, in part, to prevent
employees from receiving pension benefits and qualifying for
unemployment compensation from the same employment.
Unfortunately, the application of the offset requirement to
participants in multiemployer pension plans can unfairly penalize some
taxpayers. Under current law, all employers in a multiemployer plan
group are considered base-period employers for unemployment
compensation purposes. Because of this, members of a multiemployer
pension plan, such as actors and actresses that return to work, even
through it may be for another employer (i.e., studio), are treated as
returning to work for the same employer because all entertainment
industry employers are part of the same multiemployer pension plan.
Thus, when they return to work in their later years and their pension
is increased by a nominal amount their unemployment compensation
benefits are offset by their full pension amount. This can leave some
with the little or no unemployment compensation benefits.
Mr. President, to correct this, I am introducing legislation that
would simply limit the unemployment benefit offset to the amount of the
pension increase rather than the full pension amount received. Similar
legislation has been introduced in the House by Rep. English as H.R.
841.
Mr. President, I hope we can pass this change to allow workers in
multiemployer pension plans to receive the same treatment as
participants in other plans.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1123

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. INDIVIDUALS EMPLOYED IN ENTERTAINMENT INDUSTRY.

(a) In General.--Section 3304(a)(15) of the Internal
Revenue Code of 1986 (relating to reductions in tax) is
amended.
(1) by striking ``and'' at the end of subparagraph (A),
(2) by striking the period at the end of subparagraph (B)
and inserting ``;and'', and
(3) by adding at the end of the following:
``(C) in the case of a pension, retirement or retired pay,
annuity, or other similar periodic payment under an
entertainment industry plan contributed to by an employer--
``(i) such a reduction shall not be required by reason of
such a payment unless--
``(I) such individual worked for such employer before the
base period, and
``(II) such employer contributed to such plan an account of
such individual's work for such employer before the base
period, and
``(ii) subject to subparagraph (B), such reduction shall
not exceed the amount (if any) of the increase referred to in
subparagraph (A)(ii) in such payment which is attributable to
services performed by such individual for such employer;''.
(b) Entertainment Industry Plan and Employer.--Section 3304
of such Code is amended by adding at the end of the following
new subsection:
``(g) Entertainment Industry Plans and Employers.--For
purposes of subsection (a)(15)(C)--
``(1) Entertainment industry plan.--The term `entertainment
industry plan' means any multi-employer plan substantially
all of the contributions to which are made by entertainment
industry employers.
``(2) Entertainment industry employer.--The term
`entertainment industry employer' means any employer
substantially all of the trades or businesses of which
consists of either or both--
``(A) radio or television broadcasting, and
``(B) the production or distribution of visual images or
sound on--
``(i) video or audiotype,
``(ii) film, or
``(iii) computer-generated or other visual for audio media,
for public dissemination (whether for entertainment,
informational, commercial, educational, religious, or other
purposes).''

[[Page S8590]]

(c) Effective Date.--
(1) In general.--The amendments made by this section shall
apply to weeks beginning after December 31, 1997.
(2) Special rule.--In the case of any State the legislature
of which has not been in session for at least 30 calendar
days (whether or not successive) between the date of the
enaction of this Act and December 31, 1997, the amendments
made by this section shall apply to weeks beginning after the
date which is 30 calendar days after the first day on which
such legislative is in session on or after December 31, 1997.
______

By Mr. KERRY (for himself and Mr. Coats):
S. 1124. A bill to amend title VII of the Civil Rights Act of 1964 to
establish provisions with respect to religious accommodation in
employment, and for other purposes; to the Committee on the Judiciary.

____________________