[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 487 Reported in Senate (RS)]

                                                        Calendar No. 66
107th CONGRESS
  1st Session
                                 S. 487

                          [Report No. 107-31]

  To amend chapter 1 of title 17, United States Code, relating to the 
exemption of certain performances or displays for educational uses from 
  copyright infringement provisions, to provide that the making of a 
 single copy of such performances or displays is not an infringement, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 7, 2001

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

                              June 5, 2001

                Reported by Mr. Hatch, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
  To amend chapter 1 of title 17, United States Code, relating to the 
exemption of certain performances or displays for educational uses from 
  copyright infringement provisions, to provide that the making of a 
 single copy of such performances or displays is not an infringement, 
                        and for other purposes.

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Technology, Education and 
Copyright Harmonization Act of 2001''.</DELETED>

<DELETED>SEC. 2. EXEMPTION OF CERTAIN PERFORMANCES AND DISPLAYS FOR 
              EDUCATIONAL USES.</DELETED>

<DELETED>    Section 110(2) of title 17, United States Code, is 
amended--</DELETED>
        <DELETED>    (1) by striking the matter preceding subparagraph 
        (A) and inserting the following:</DELETED>
        <DELETED>    ``(2) except with respect to a work produced 
        primarily for instructional use or a performance or display 
        that is given by means of a copy that is not lawfully made and 
        acquired under this title, and the transmitting governmental 
        body or nonprofit educational institution knew or had reason to 
        believe was not lawfully made and acquired, the performance of 
        a nondramatic literary or musical work or reasonable and 
        limited portions of any other work, or display of a work, by or 
        in the course of a transmission, reproduction of such work in 
        transient copies or phonorecords created as a part of the 
        automatic technical process of a digital transmission, and 
        distribution of such copies or phonorecords in the course of 
        such transmission, to the extent technologically necessary to 
        transmit the performance or display, if--'';</DELETED>
        <DELETED>    (2) in subparagraph (A) by striking all beginning 
        with ``the performance'' through ``regular'' and inserting the 
        following: ``the performance or display is made by or at the 
        direction of an instructor as an integral part of a class 
        session offered as a regular'';</DELETED>
        <DELETED>    (3) by striking subparagraph (C) and inserting the 
        following:</DELETED>
                <DELETED>    ``(C) the transmission is made solely for, 
                and, to the extent technologically feasible, the 
                reception of such transmission is limited to--
                </DELETED>
                        <DELETED>    ``(i) students officially enrolled 
                        in the course for which the transmission is 
                        made; or</DELETED>
                        <DELETED>    ``(ii) officers or employees of 
                        governmental bodies as part of their official 
                        duties or employment; and''; and</DELETED>
        <DELETED>    (4) by adding at the end the following:</DELETED>
                <DELETED>    ``(D) any transient copies are retained 
                for no longer than reasonably necessary to complete the 
                transmission; and</DELETED>
                <DELETED>    ``(E) the transmitting body or 
                institution--</DELETED>
                        <DELETED>    ``(i) institutes policies 
                        regarding copyright, provides informational 
                        materials to faculty, students, and relevant 
                        staff members that accurately describe, and 
                        promote compliance with, the laws of the United 
                        States relating to copyright, and provides 
                        notice to students that materials used in 
                        connection with the course may be subject to 
                        copyright protection; and</DELETED>
                        <DELETED>    ``(ii) in the case of digital 
                        transmissions, applies technological measures 
                        that reasonably prevent unauthorized access to 
                        and dissemination of the work, and does not 
                        intentionally interfere with technological 
                        measures used by the copyright owner to protect 
                        the work.''.</DELETED>

<DELETED>SEC. 3. EPHEMERAL RECORDINGS.</DELETED>

<DELETED>    (a) In General.--Section 112 of title 17, United States 
Code, is amended--</DELETED>
        <DELETED>    (1) by redesignating subsection (f) as subsection 
        (g); and</DELETED>
        <DELETED>    (2) by inserting after subsection (e) the 
        following:</DELETED>
<DELETED>    ``(f) Notwithstanding the provisions of section 106, and 
without limiting the application of subsection (b), it is not an 
infringement of copyright for a governmental body or other nonprofit 
educational institution entitled to transmit a performance or display 
of a work that is in digital form under section 110(2) to make copies 
or phonorecords embodying the performance or display to be used for 
making transmissions authorized under section 110(2), if--</DELETED>
        <DELETED>    ``(1) such copies or phonorecords are retained and 
        used solely by the body or institution that made them, and no 
        further copies or phonorecords are reproduced from them, except 
        as authorized under section 110(2);</DELETED>
        <DELETED>    ``(2) such copies or phonorecords are used solely 
        for transmissions authorized under section 110(2); 
        and</DELETED>
        <DELETED>    ``(3) the body or institution does not 
        intentionally interfere with technological measures used by the 
        copyright owner to protect the work.''.</DELETED>
<DELETED>    (b) Technical and Conforming Amendment.--Section 802(c) of 
title 17, United States Code, is amended in the third sentence by 
striking ``section 112(f)'' and inserting ``section 112(g)''.</DELETED>

<DELETED>SEC. 4. IMPLEMENTATION BY COPYRIGHT OFFICE.</DELETED>

<DELETED>    (a) Report.--Not later than 2 years after the date of 
enactment of this Act, the Copyright Office shall conduct a study and 
submit a report to Congress on the status of--</DELETED>
        <DELETED>    (1) licensing by private and public educational 
        institutions of copyrighted works for digital distance 
        education programs, including--</DELETED>
                <DELETED>    (A) live interactive distance learning 
                classes;</DELETED>
                <DELETED>    (B) faculty instruction recorded without 
                students present for later transmission; and</DELETED>
                <DELETED>    (C) asynchronous delivery of distance 
                learning over computer networks; and</DELETED>
        <DELETED>    (2) the use of copyrighted works in such 
        programs.</DELETED>
<DELETED>    (b) Conference.--Not later than 2 years after the date of 
enactment of this Act, the Copyright Office shall--</DELETED>
        <DELETED>    (1) convene a conference of interested parties, 
        including representatives of copyright owners, nonprofit 
        educational institutions and nonprofit libraries and archives 
        to develop guidelines for the use of copyrighted works for 
        digital distance education under the fair use doctrine and 
        section 110 (1) and (2) of title 17, United States 
        Code;</DELETED>
        <DELETED>    (2) to the extent the Copyright Office determines 
        appropriate, submit to the Committees on the Judiciary of the 
        Senate and the House of Representatives such guidelines, along 
        with information on the organizations, Government agencies, and 
        institutions participating in the guideline development and 
        endorsing the guidelines; and</DELETED>
        <DELETED>    (3) post such guidelines on an Internet website 
        for educators, copyright owners, libraries, and other 
        interested persons.</DELETED>

SECTION 1. EDUCATIONAL USE COPYRIGHT EXEMPTION.

    (a) Short Title.--This Act may be cited as the ``Technology, 
Education, and Copyright Harmonization Act of 2001''.
    (b) Exemption of Certain Performances and Displays for Educational 
Uses.--Section 110 of title 17, United States Code, is amended--
            (1) by striking paragraph (2) and inserting the following:
            ``(2) except with respect to a work produced or marketed 
        primarily for performance or display as part of mediated 
        instructional activities transmitted via digital networks, or a 
        performance or display that is given by means of a copy or 
        phonorecord that is not lawfully made and acquired under this 
        title, and the transmitting government body or accredited 
        nonprofit educational institution knew or had reason to believe 
        was not lawfully made and acquired, the performance of a 
        nondramatic literary or musical work or reasonable and limited 
        portions of any other work, or display of a work in an amount 
        comparable to that which is typically displayed in the course 
        of a live classroom session, by or in the course of a 
        transmission, if--
                    ``(A) the performance or display is made by, at the 
                direction of, or under the actual supervision of an 
                instructor as an integral part of a class session 
                offered as a regular part of the systematic mediated 
                instructional activities of a governmental body or an 
                accredited nonprofit educational institution;
                    ``(B) the performance or display is directly 
                related and of material assistance to the teaching 
                content of the transmission;
                    ``(C) the transmission is made solely for, and, to 
                the extent technologically feasible, the reception of 
                such transmission is limited to--
                            ``(i) students officially enrolled in the 
                        course for which the transmission is made; or
                            ``(ii) officers or employees of 
                        governmental bodies as a part of their official 
                        duties or employment; and
                    ``(D) the transmitting body or institution--
                            ``(i) institutes policies regarding 
                        copyright, provides informational materials to 
                        faculty, students, and relevant staff members 
                        that accurately describe, and promote 
                        compliance with, the laws of the United States 
                        relating to copyright, and provides notice to 
                        students that materials used in connection with 
                        the course may be subject to copyright 
                        protection; and
                            ``(ii) in the case of digital 
                        transmissions--
                                    ``(I) applies technological 
                                measures that, in the ordinary course 
                                of their operations, prevent--
                                            ``(aa) retention of the 
                                        work in accessible form by 
                                        recipients of the transmission 
                                        from the transmitting body or 
                                        institution for longer than the 
                                        class session; and
                                            ``(bb) unauthorized further 
                                        dissemination of the work in 
                                        accessible form by such 
                                        recipients to others; and
                                    ``(II) does not engage in conduct 
                                that could reasonably be expected to 
                                interfere with technological measures 
                                used by copyright owners to prevent 
                                such retention or unauthorized further 
                                dissemination;''; and
            (2) by adding at the end the following:
            ``In paragraph (2), the term `mediated instructional 
        activities' with respect to the performance or display of a 
        work by digital transmission under this section refers to 
        activities that use such work as an integral part of the class 
        experience, controlled by or under the actual supervision of 
        the instructor and analogous to the type of performance or 
        display that would take place in a live classroom setting. The 
        term does not refer to activities that use, in 1 or more class 
        sessions of a single course, such works as textbooks, course 
        packs, or other material in any media, copies or phonorecords 
        of which are typically purchased or acquired by the students in 
        higher education for their independent use and retention or are 
        typically purchased or acquired for elementary and secondary 
        students for their possession and independent use.
            ``For purposes of paragraph (2), accreditation--
                    ``(A) with respect to an institution providing 
                post-secondary education, shall be as determined by a 
                regional or national accrediting agency recognized by 
                the Council on Higher Education Accreditation or the 
                United States Department of Education; and
                    ``(B) with respect to an institution providing 
                elementary or secondary education, shall be as 
                recognized by the applicable state certification or 
                licensing procedures.
            ``For purposes of paragraph (2), no governmental body or 
        accredited nonprofit educational institution shall be liable 
        for infringement by reason of the transient or temporary 
        storage of material carried out through the automatic technical 
        process of a digital transmission of the performance or display 
        of that material as authorized under paragraph (2). No such 
        material stored on the system or network controlled or operated 
        by the transmitting body or institution under this paragraph 
        shall be maintained on such system or network in a manner 
        ordinarily accessible to anyone other than anticipated 
        recipients. No such copy shall be maintained on the system or 
        network in a manner ordinarily accessible to such anticipated 
        recipients for a longer period than is reasonably necessary to 
        facilitate the transmissions for which it was made.''.
    (c) Ephemeral Recordings.--
            (1) In general.--Section 112 of title 17, United States 
        Code, is amended--
            (A) by redesignating subsection (f) as subsection (g); and
            (B) by inserting after subsection (e) the following:
    ``(f)(1) Notwithstanding the provisions of section 106, and without 
limiting the application of subsection (b), it is not an infringement 
of copyright for a governmental body or other nonprofit educational 
institution entitled under section 110(2) to transmit a performance or 
display to make copies or phonorecords of a work that is in digital 
form and, solely to the extent permitted in paragraph (2), of a work 
that is in analog form, embodying the performance or display to be used 
for making transmissions authorized under section 110(2), if--
            ``(A) such copies or phonorecords are retained and used 
        solely by the body or institution that made them, and no 
        further copies or phonorecords are reproduced from them, except 
        as authorized under section 110(2); and
            ``(B) such copies or phonorecords are used solely for 
        transmissions authorized under section 110(2).
    ``(2) This subsection does not authorize the conversion of print or 
other analog versions of works into digital formats, except that such 
conversion is permitted hereunder, only with respect to the amount of 
such works authorized to be performed or displayed under section 
110(2), if--
            ``(A) no digital version of the work is available to the 
        institution; or
            ``(B) the digital version of the work that is available to 
        the institution is subject to technological protection measures 
        that prevent its use for section 110(2).''.
            (2) Technical and conforming amendment.--Section 802(c) of 
        title 17, United States Code, is amended in the third sentence 
        by striking ``section 112(f)'' and inserting ``section 
        112(g)''.
    (d) Patent and Trademark Office Report.--
            (1) In general.--Not later than 180 days after the date of 
        enactment of this Act and after a period for public comment, 
        the Undersecretary of Commerce for Intellectual Property, after 
        consultation with the Register of Copyrights, shall submit to 
        the Committees on the Judiciary of the Senate and the House of 
        Representatives a report describing technological protection 
        systems that have been implemented, are available for 
        implementation, or are proposed to be developed to protect 
        digitized copyrighted works and prevent infringement, including 
        upgradeable and self-repairing systems, and systems that have 
        been developed, are being developed, or are proposed to be 
        developed in private voluntary industry-led entities through an 
        open broad based consensus process. The report submitted to the 
        Committees shall not include any recommendations, comparisons, 
        or comparative assessments of any commercially available 
        products that may be mentioned in the report.
            (2) Limitations.--The report under this subsection--
                    (A) is intended solely to provide information to 
                Congress; and
                    (B) shall not be construed to affect in any way, 
                either directly or by implication, any provision of 
                title 17, United States Code, including the 
                requirements of clause (ii) of section 110(2)(D) of 
                that title (as added by this Act), or the 
                interpretation or application of such provisions, 
                including evaluation of the compliance with that clause 
                by any governmental body or nonprofit educational 
                institution.




                                                        Calendar No. 66

107th CONGRESS

  1st Session

                                 S. 487

                          [Report No. 107-31]

_______________________________________________________________________

                                 A BILL

  To amend chapter 1 of title 17, United States Code, relating to the 
exemption of certain performances or displays for educational uses from 
  copyright infringement provisions, to provide that the making of a 
 single copy of such performances or displays is not an infringement, 
                        and for other purposes.

_______________________________________________________________________

                              June 5, 2001

                       Reported with an amendment