[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2281 Introduced in House (IH)]







105th CONGRESS
  1st Session
                                H. R. 2281

     To amend title 17, United States Code, to implement the World 
 Intellectual Property Organization Copyright Treaty and Performances 
                         and Phonograms Treaty.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 29, 1997

    Mr. Coble (for himself, Mr. Hyde, Mr. Conyers, and Mr. Frank of 
Massachusetts) introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
     To amend title 17, United States Code, to implement the World 
 Intellectual Property Organization Copyright Treaty and Performances 
                         and Phonograms Treaty.

    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 ``WIPO Copyright Treaties 
Implementation Act''.

SEC. 2. TECHNICAL AMENDMENTS.

    (a) Definitions.--Section 101 of title 17, United States Code, is 
amended--
            (1) by striking the definition of ``Berne Convention 
        work'';
            (2) in the definition of ``The `country of origin' of a 
        Berne Convention work''--
                    (A) by striking ``The `country of origin' of a 
                Berne Convention work, for purposes of section 411, is 
                the United States if'' and inserting ``For purposes of 
                section 411, a work is a `United States work' only 
                if'';
                    (B) in paragraph (1)--
                            (i) in subparagraph (B) by striking 
                        ``nation or nations adhering to the Berne 
                        Convention'' and inserting ``treaty party or 
                        parties'';
                            (ii) in subparagraph (C) by striking ``does 
                        not adhere to the Berne Convention'' and 
                        inserting ``is not a treaty party''; and
                            (iii) in subparagraph (D) by striking 
                        ``does not adhere to the Berne Convention'' and 
                        inserting ``is not a treaty party''; and
                    (C) in the matter following paragraph (3) by 
                striking ``For the purposes of section 411, the 
                `country of origin' of any other Berne Convention work 
                is not the United States.'';
            (3) by inserting after the definition of ``fixed'' the 
        following:
            ``The `Geneva 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.'';
            (4) by inserting after the definition of ``including'' the 
        following:
            ``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.'';
            (5) by inserting after the definition of ``transmit'' the 
        following:
            ``A `treaty party' is a country or intergovernmental 
        organization other than the United States that is a party to an 
        international agreement.'';
            (6) by inserting after the definition of ``widow'' the 
        following:
            ``The `WIPO Copyright Treaty' is the WIPO Copyright Treaty 
        concluded at Geneva, Switzerland, on December 20, 1996.'';
            (7) by inserting after the definition of ``The `WIPO 
        Copyright Treaty''' the following:
            ``The `WIPO Performances and Phonograms Treaty' is the WIPO 
        Performances and Phonograms Treaty concluded at Geneva, 
        Switzerland, on December 20, 1996.''; and
            (8) by inserting after the definition of ``work made for 
        hire'' the following:
            ``The terms `WTO Agreement' and `WTO member country' have 
        the meanings given those terms in paragraphs (9) and (10), 
        respectively, of section 2 of the Uruguay Round Agreements 
        Act.''.
    (b) Subject Matter of Copyright; National Origin.--Section 104 of 
title 17, United States Code, is amended--
            (1) in subsection (b)--
                    (A) in paragraph (1) by striking ``foreign nation 
                that is a party to a copyright treaty to which the 
                United States is also a party'' and inserting ``treaty 
                party'';
                    (B) in paragraph (2) by striking ``party to the 
                Universal Copyright Convention'' and inserting ``treaty 
                party'';
                    (C) by redesignating paragraph (5) as paragraph 
                (6);
                    (D) by redesignating paragraph (3) as paragraph (5) 
                and inserting it after paragraph (4);
                    (E) by inserting after paragraph (2) the following:
            ``(3) the work is a sound recording that was first fixed in 
        a treaty party; or'';
                    (F) in paragraph (4) by striking ``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''; and
                    (G) by inserting after paragraph (6), as so 
                redesignated, the following:
``For purposes of paragraph (2), a work that is published in the United 
States or a treaty party within 30 days after publication in a foreign 
nation that is not a treaty party shall be considered to be first 
published in the United States or such treaty party, as the case may 
be.''; and
            (2) by adding at the end the following new subsection:
    ``(d) Effect of Phonograms Treaties.--Notwithstanding the 
provisions of subsection (b), no works other than sound recordings 
shall be eligible for protection under this title solely by virtue of 
the adherence of the United States to the Geneva Phonograms Convention 
or the WIPO Performances and Phonograms Treaty.''.
    (c) Copyright in Restored Works.--Section 104A(h) of title 17, 
United States Code, is amended--
            (1) in paragraph (1), by striking subparagraphs (A) and (B) 
        and inserting the following:
                    ``(A) a nation adhering to the Berne Convention;
                    ``(B) a WTO member country;
                    ``(C) a nation adhering to the WIPO Copyright 
                Treaty;
                    ``(D) a nation adhering to the WIPO Performances 
                and Phonograms Treaty; or
                    ``(E) subject to a Presidential proclamation under 
                subsection (g).'';
            (2) by amending paragraph (3) 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 the enactment of the Uruguay Round Agreements Act;
                    ``(B) on such date of enactment is, or after such 
                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)--
                    (A) in subparagraph (C)(iii) by striking ``and'' 
                after the semicolon;
                    (B) at the end of subparagraph (D) by striking the 
                period and inserting ``; and''; and
                    (C) by adding after subparagraph (D) the following:
                    ``(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.'';
            (4) in paragraph (8)(B)(i)--
                    (A) by inserting ``of which'' before ``the 
                majority''; and
                    (B) by striking ``of eligible countries''; and
            (5) by striking paragraph (9).
    (d) Registration and Infringement Actions.--Section 411(a) of title 
17, United States Code, is amended in the first sentence--
            (1) by striking ``actions for infringement of copyright in 
        Berne Convention works whose country of origin is not the 
        United States and''; and
            (2) by inserting ``United States'' after ``no action for 
        infringement of the copyright in any''.
    (e) Statute of Limitations.--Section 507(a) of title 17, United 
State Code, is amended by striking ``No'' and inserting ``Except as 
expressly provided otherwise in this title, no''.

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

    Title 17, United States Code, is amended by adding at the end 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) Violations Regarding Circumvention of Technological 
Protection Measures.--(1) No person shall circumvent a technological 
protection measure that effectively controls access to a work protected 
under this title.
    ``(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 this 
        title;
            ``(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 this 
        title; 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 this title.
    ``(3) As used in this subsection--
            ``(A) to `circumvent a technological protection' 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; and
            ``(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) Additional Violations.--(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 this title 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 this title 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 this title in a 
        work or a portion thereof.
    ``(2) As used in this subsection--
            ``(A) the term `circumvent protection afforded by a 
        technological protection measure' means avoiding, bypassing, 
        removing, deactivating, or otherwise impairing a technological 
        protection measure; and
            ``(B) a technological protection measure `effectively 
        protects a right of a copyright owner' under this title 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 this title.
    ``(c) Importation.--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 
subsection (a) or (b) shall be actionable under section 337 of the 
Tariff Act of 1930 (19 U.S.C. 1337).
    ``(d) Other Rights, Etc., Not Affected.--Nothing in this section 
shall affect rights, remedies, limitations, or defenses to copyright 
infringement, including fair use, under this title.
    ``(e) Law Enforcement and Intelligence Activities.--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 public distribution 
        copyright management information that is false,
with the intent to induce, enable, facilitate, or conceal infringement.
    ``(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 
        the 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 this title.
    ``(c) Definition.--As used in this chapter, the term `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.
            ``(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) Law Enforcement and Intelligence Activities.--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 Actions.--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 is 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 or product involved in the violation that is in 
        the custody or control of the violator or has been impounded 
        under paragraph (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 in paragraph (2); or
                    ``(B) statutory damages, as provided in paragraph 
                (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 3 
        years after a final judgment was entered against that person 
        for another such violation, the court may increase the award of 
        damages up to triple the amount that would otherwise be 
        awarded, as the court considers just.
            ``(5) Innocent violations.--The court in its discretion may 
        reduce or remit 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) In General.--Any person who violates section 1201 or 1202 
willfully and for purposes of commercial advantage or private financial 
gain--
            ``(1) shall be fined not more than $500,000 or imprisoned 
        for not more than 5 years, or both, for the first offense; and
            ``(2) shall be fined not more than $1,000,000 or imprisoned 
        for not more than 10 years, or both, for any subsequent 
        offense.
    ``(b) Statute of Limitations.--Notwithstanding section 507(a) of 
this title, no criminal proceeding shall be maintained under subsection 
(a) unless such proceeding is commenced within 5 years after the cause 
of action arose.''.

SEC. 4. CONFORMING AMENDMENT.

    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.

    (a) In General.--Subject to subsection (b), the amendments made by 
this Act shall take effect on the date of the enactment of this Act.
    (b) Amendments Relating to Certain International Agreements.--(1) 
The following shall take effect upon the entry into force of the WIPO 
Copyright Treaty with respect to the United States:
            (A) Paragraph (5) of the definition of ``international 
        agreement'' contained in section 101 of title 17, United States 
        Code, as amended by section 2(a)(4) of this Act.
            (B) The amendment made by section 2(a)(6) of this Act.
            (C) Subparagraph (C) of section 104(h)(1) of title 17, 
        United States Code, as amended by section 2(c)(1) of this Act.
            (D) Subparagraph (C) of section 104(h)(3) of title 17, 
        United States Code, as amended by section 2(c)(2) of this Act.
    (2) The following shall take effect upon the entry into force of 
the WIPO Performances and Phonograms Treaty with respect to the United 
States:
            (A) Paragraph (6) of the definition of ``international 
        agreement'' contained in section 101 of title 17, United States 
        Code, as amended by section 2(a)(4) of this Act.
            (B) The amendment made by section 2(a)(7) of this Act.
            (C) The amendment made by section 2(b)(2) of this Act.
            (D) Subparagraph (D) of section 104(h)(1) of title 17, 
        United States Code, as amended by section 2(c)(1) of this Act.
            (E) Subparagraph (D) of section 104(h)(3) of title 17, 
        United States Code, as amended by section 2(c)(2) of this Act.
            (F) The amendments made by section 2(c)(3) of this Act.
                                 <all>