[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1121 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                S. 1121

 To amend Title 17 to implement the WIPO Copyright Treaty and the WIPO 
                  Performances and Phonograms Treaty.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 31, 1997

  Mr. Hatch (for himself, Mr. Leahy, Mr. Thompson, and Mr. Kohl) (by 
   request) introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend Title 17 to implement the WIPO Copyright Treaty and the WIPO 
                  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 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 origin' of a Berne Convention work'', by inserting 
        ``treaty party or parties'' and deleting ``nation or 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 
        `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.'';
            (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
            (12) 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 paragraphs (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) 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:
            ``(7) For purposes of paragraph (2), a work that is 
        published in the United States or a treaty party within thirty 
        days of publication in a 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 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 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) 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 of 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 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 
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.
                                 <all>