[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3048 Introduced in House (IH)]







105th CONGRESS
  1st Session
                                H. R. 3048

   To update and preserve balance in the Copyright Act for the 21st 
    Century; to advance educational opportunities through distance 
  learning; to implement the World Intellectual Property Organization 
Copyright Treaty, and Performances and Phonograms Treaty, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           November 13, 1997

  Mr. Boucher (for himself and Mr. Campbell) introduced the following 
       bill; which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To update and preserve balance in the Copyright Act for the 21st 
    Century; to advance educational opportunities through distance 
  learning; to implement the World Intellectual Property Organization 
Copyright Treaty and Performances and Phonograms Treaty, 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 ``Digital Era Copyright Enhancement 
Act''.

SEC. 2. FAIR USE.

    (a) Transmissions.--The first sentence of section 107 of title 17, 
United States Code, is amended by inserting after ``or by any other 
means specified in that section,'' the following: ``and by analog or 
digital transmission,''; and
    (b) Determination.--Section 107 of title 17, United States Code, is 
amended by adding at the end thereof the following:
``In making a determination concerning fair use, no independent weight 
shall be afforded to--
            ``(1) the means by which the work has been performed, 
        displayed or distributed under the authority of the copyright 
        owner; or
            ``(2) the application of an effective technological measure 
        (as defined under section 1201(c)) to the work.''.

SEC. 3. LIBRARY/ARCHIVE EXEMPTIONS.

    Section 108 of title 17, United States Code, is amended--
            (1) by striking ``Notwithstanding'' at the beginning of 
        subsection (a) and inserting: ``Except as otherwise provided 
        and notwithstanding'';
            (2) by inserting after ``copyright'' in subsection (a)(3): 
        ``if such notice appears on the copy or phonorecord that is 
        reproduced under the provisions of this section'';
            (3) in subsection (b) by--
                    (A) deleting ``a copy or phonorecord'' and 
                inserting in lieu thereof: ``three copies or 
                phonorecords''; and
                    (B) deleting ``in facsimile form''; and
            (4) in subsection (c) by--
                    (A) deleting ``a copy or phonorecord'' and 
                inserting in lieu thereof: ``three copies or 
                phonorecords'';
                    (B) deleting ``in facsimile form''; and
                    (C) inserting ``or if the existing format in which 
                the work is stored has become obsolete,'' after 
                ``stolen,''.

SEC. 4. FIRST SALE.

    Section 109 of title 17, United States Code, is amended by adding 
the following new subsection at the end thereof:
    ``(f) The authorization for use set forth in subsection (a) applies 
where the owner of a particular copy or phonorecord in a digital format 
lawfully made under this title, or any person authorized by such owner, 
performs, displays or distributes the work by means of transmission to 
a single recipient, if that person erases or destroys his or her copy 
or phonorecord at substantially the same time. The reproduction of the 
work, to the extent necessary for such performance, display, 
distribution, is not an infringement.''.

SEC. 5. DISTANCE LEARNING.

    (a) Title Change.--The title of section 110 of title 17, United 
States Code, is amended to read as follows:
``Sec. 110. Limitations on exclusive rights: Exemption of certain 
              activities'';
    (b) Performance, Display and Distribution of a Work.--Section 
110(2) of title 17, United States Code, is amended to read as follows:
            ``(2) performance, display or distribution of a work, by or 
        in the course of an analog or digital transmission, if--
                    ``(A) the performance, display or distribution is a 
                regular part of the systematic instructional activities 
                of a governmental body or a nonprofit educational 
                institution;
                    ``(B) the performance, display or distribution is 
                directly related and of material assistance to the 
                teaching content of the transmission; and
                    ``(C) the work is provided for reception by--
                            ``(i) students officially enrolled in the 
                        course in connection with which it is provided; 
                        or
                            ``(ii) officers or employees of 
                        governmental bodies as part of their official 
                        duties or employment;''
    (c) Ephemeral Recordings of Works.--Section 112(b) of title 17, 
United States Code, is amended by deleting ``transmit a performance or 
display of'' and inserting in lieu thereof: ``perform, display or 
distribute''.

SEC. 6. LIMITATIONS ON EXCLUSIVE RIGHTS.

    (a) Title.--The title of section 117 of title 17, United States 
Code, is amended to read as follows:
``Sec. Limitations on exclusive rights: Computer programs and digital 
              copies'';
    (b) Digital Copies.--Section 117 of title 17, United States Code, 
is amended by inserting ``(a)'' before ``Notwithstanding'' and 
inserting the following as a new subsection (b):
    ``(b) Notwithstanding the provisions of section 106, it is not an 
infringement to make a copy of a work in a digital format if such 
copying--
            ``(1) is incidental to the operation of a device in the 
        course of the use of a work otherwise lawful under this title; 
        and
            ``(2) does not conflict with the normal exploitation of the 
        work and does not unreasonably prejudice the legitimate 
        interests of the author.''.

SEC. 7. PREEMPTION.

    Section 301(a) of title 17, United States Code, is amended by 
inserting the following at the end thereof:
``When a work is distributed to the public subject to non-negotiable 
license terms, such terms shall not be enforceable under the common law 
or statutes of any state to the extent that they--
            ``(1) limit the reproduction, adaptation, distribution, 
        performance, or display, by means of transmission or otherwise, 
        of material that is uncopyrightable under section 102(b) or 
        otherwise; or
            ``(2) abrogate or restrict the limitations on exclusive 
        rights specified in sections 107 through 114 and sections 117 
        and 118 of this title.''.

SEC. 8. COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS.

    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 certain technological measures.
``1202. Integrity of copyright management information.
``1203. Civil remedies.
``Sec. 1201. Circumvention of certain technological measures
    ``(a) Circumvention Conduct.--No person, for the purpose of 
facilitating or engaging in an act of infringement, shall engage in 
conduct so as knowingly to remove, deactivate or otherwise circumvent 
the application or operation of any effective technological measure 
used by a copyright owner to preclude or limit reproduction of a work 
or a portion thereof. As used in this subsection, the term `conduct' 
does not include manufacturing, importing or distributing a device or a 
computer program.
    ``(b) Conduct Governed by Separate Chapter.--Notwithstanding 
subsection (a), this section shall not apply with respect to conduct or 
the offer or performance of a service governed by a separate chapter of 
this title.
    ``(c) Definition of Effective Technological Measure.--As used in 
this section, the term `effective technological measure' means a change 
in the data comprising a work or a copy of a work transmitted in 
digital format so as to protect the rights of a copyright owner of such 
work or portion thereof under this title and which--
            ``(1) encrypts or scrambles the work or a portion thereof 
        in the absence of information supplied by the copyright owner; 
        or
            ``(2) includes attributes with respect to access or 
        recording status that cannot be removed without degrading the 
        work or a portion thereof.
``Sec. 1202. Integrity of copyright management information
    ``(a) False Copyright Management Information.--No person shall 
knowingly provide copyright management information that is false, or 
knowingly publicly distribute or import for distribution copyright 
management information that is false, with intent to induce, 
facilitate, or conceal infringement.
    ``(b) Removal or Alteration of Copyright Management Information.--
No person shall, without authority of the copyright owner or other 
lawful authority, knowingly and with intent to mislead or to induce or 
facilitate infringement--
            ``(1) remove or alter any copyright management information;
            ``(2) publicly distribute or import for distribution a copy 
        or phonorecord containing copyright management information that 
        has been altered without authority of the copyright owner or 
        other lawful authority; or
            ``(3) publicly distribute or import for distribution a copy 
        or phonorecord from which copyright management information has 
        been removed without authority of the copyright owner or other 
        lawful authority: Provided, That the conduct governed by this 
        subsection does not include the manufacturing, importing or 
        distributing of a device.
    ``(c) Definition of Copyright Management Information.--As used in 
this chapter, the term `copyright management information' means the 
following information in electronic form as carried in or as data 
accompanying a copy or phonorecord of a work, including in digital 
form:
            ``(1) The title and other information identifying the work, 
        including the information set forth in a notice of copyright;
            ``(2) The name and other identifying information of the 
        author of the work;
            ``(3) The name and other identifying information of the 
        copyright owner of the work, including the information set 
        forth in a notice of copyright;
            ``(4) Terms and conditions for uses of the work;
            ``(5) Identifying numbers or symbols referring to such 
        information or links to such information; and
            ``(6) Such other identifying information concerning the 
        work as the Register of Copyrights may prescribe by regulation:
Provided, That the term `copyright management information' does not 
include the information described in section 1002, section 1201(c), or 
a chapter of this title other than chapters one through nine of this 
title: Provided further, That, in order to assure privacy protection, 
the term `copyright management information' does not include any 
personally identifiable information relating to the user of a work, 
including but not limited to the name, account, address or other 
contact information of or pertaining to the user.
``Sec. 1203. Civil remedies
    ``(a) Civil Actions.--Any person aggrieved by a violation of 
section 1201(a) or 1202 may bring a civil action in an appropriate 
United States district court against any person for such violation.
    ``(b) Powers of the Court.--In an action brought under subsection 
(a), the court--
            ``(1) may grant a temporary and a permanent injunction on 
        such terms as it deems reasonable to prevent or restrain a 
        violation;
            ``(2) may grant such other equitable relief as it deems 
        appropriate;
            ``(3) may award damages pursuant to subsection (c);
            ``(4) may allow the recovery of costs by or against any 
        party other than the United States or an officer thereof; and
            ``(5) may award a reasonable attorney's fee to the 
        prevailing party.
    ``(c) Award of Damages.--
            ``(1) In general.--If the court finds that a violation of 
        section 1201(a) or 1202 has occurred, the complaining party may 
        elect either actual damages as computed under paragraph (2) or 
        statutory damages as computed under paragraph (3).
            ``(2) Actual damages.--The court may award to the 
        complaining party the actual damages suffered by him or her 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 instead of statutory damages at any 
        time before final judgment is entered.
            ``(3) Statutory damages.--(A) The court may award to the 
        complaining party statutory damages for each violation of 
        section 1201(a) of not less than $250 or more than $2,500, as 
        the court considers just, if the complaining party elects such 
        damages instead of actual damages at any time before final 
        judgment is entered.
            ``(B) The court may award to the complaining party 
        statutory damages for each violation of section 1202 of not 
        less than $500 or more than $20,000, as the court considers 
        just, if the complaining party elects such damages instead of 
        actual damages at any time before final judgment is entered.
            ``(4) Repeated violations.--In any case in which the court 
        finds that a person has violated section 1201(a) or 1202 within 
        three years after a final judgment against that person for 
        another such violation was entered, the court may increase the 
        award of damaages to not more than double the amount that would 
        otherwise be awarded under paragraph (2) or (3), as the court 
        considers just.
            ``(5) Innocent violation.--The court may reduce or remit 
        altogether the total award of damages that otherwise would be 
        awarded under paragraph (2) or (3) 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 of section 1201(a) or 
        1202.''.

SEC. 9. CONFORMING AMENDMENTS.

    ``(a) Table of Sections.--The table of sections for chapter 1 of 
title 17, United States Code, is amended by--
            (1) Revising the item relating to section 110 to read as 
        follows:

``110. Limitations on exclusive rights: Exemption of certain 
                            activities'';
            and
            (2) Revising the item relating to section 117 to read as 
        follows:

``117. Limitations on exclusive rights: computer programs and digital 
                            copies''.
    ``(b) Table of Chapters.--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. 10. EFFECTIVE DATES.

    ``(a) In General.--Sections one through seven and section 9(a) of 
this Act, and the amendments made by sections one through seven and 
section 9(a) of this Act, shall take effect on the date of enactment of 
this Act.
    ``(b) WIPO Treaties.--Section 8 and section 9(b) of this Act, and 
the amendments made by section 8 and section 9(b) of this Act, shall 
take effect on the date on which both the World Intellectual Property 
Organization Copyright Treaty and the World Intellectual Property 
Organization Performances and Phonograms Treaty have entered into force 
with respect to the United States.
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