[Congressional Record Volume 144, Number 108 (Tuesday, August 4, 1998)]
[House]
[Pages H7074-H7103]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    DIGITAL MILLENNIUM COPYRIGHT ACT

  Mr. COBLE. Madam Speaker, I move to suspend the rules and pass the 
bill (H.R. 2281) to amend title 17, United States Code, to implement 
the World Intellectual Property Organization Copyright Treaty and 
Performances and Phonograms Treaty, as amended.
  The Clerk read as follows:

                               H.R. 2281

       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 Millennium Copyright 
     Act''.

     SEC. 2. TABLE OF CONTENTS.

Sec. 1. Short title.
Sec. 2. Table of contents.

            TITLE I--WIPO COPYRIGHT TREATIES IMPLEMENTATION

Sec. 101. Short title.
Sec. 102. Technical amendments.
Sec. 103. Copyright protection systems and copyright management 
              information.
Sec. 104. Development and implementation of technological protection 
              measures.
Sec. 105. Evaluation of impact of copyright law and amendments on 
              electronic commerce and technological development.
Sec. 106. Effective date.

      TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

Sec. 201. Short title.
Sec. 202. Limitations on liability for copyright infringement.
Sec. 203. Effective date.

[[Page H7075]]

      TITLE III-COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

Sec. 301. Short title.
Sec. 302. Limitations on exclusive rights; computer programs.

                   TITLE IV--MISCELLANEOUS PROVISIONS

   Subtitle A--Establishment of the Under Secretary of Commerce for 
                      Intellectual Property Policy

Sec. 401. Under Secretary of Commerce for Intellectual Property Policy.
Sec. 402. Relationship with existing authorities.

                     Subtitle B--Related Provisions

Sec. 411. Ephemeral recordings.
Sec. 412. Limitations on exclusive rights; distance education.
Sec. 413. Exemption for libraries and archives.
Sec. 414. Fair use.
Sec. 415. Scope of exclusive rights in sound recordings; ephemeral 
              recordings.
Sec. 416. Assumption of contractual obligations related to transfers of 
              rights in motion pictures.
Sec. 417. First sale clarification.

           TITLE V--COLLECTIONS OF INFORMATION ANTIPIRACY ACT

Sec. 501. Short title.
Sec. 502. Misappropriation of collections of information.
Sec. 503. Conforming amendment.
Sec. 504. Conforming amendments to title 28, United States Code.
Sec. 505. Effective date.

            TITLE VI--PROTECTION OF CERTAIN ORIGINAL DESIGNS

Sec. 601. Short title.
Sec. 602. Protection of certain original designs.
Sec. 603. Conforming amendments.
Sec. 604. Effective date.
            TITLE I--WIPO COPYRIGHT TREATIES IMPLEMENTATION

     SEC. 101. SHORT TITLE.

       This title may be cited as the ``WIPO Copyright Treaties 
     Implementation Act''.

     SEC. 102. 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. 103. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT 
                   MANAGEMENT INFORMATION.

       (a) In General.--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.
``1205. Savings clause.
``1203. Civil remedies.

     ``Sec. 1201. Circumvention of copyright protection systems

       ``(a) Violations Regarding Circumvention of Technological 
     Measures.--(1)(A) No person shall circumvent a technological 
     measure that effectively controls access to a work protected 
     under this title. The prohibition contained in the preceding 
     sentence shall take effect at the end of the 2-year period 
     beginning on the date of the enactment of this chapter.
       ``(B)(i) The prohibition contained in subparagraph (A) 
     shall not apply to persons

[[Page H7076]]

     with respect to a copyrighted work which is in a particular 
     class of works and to which such persons have gained initial 
     lawful access, if such persons are, or are likely to be in 
     the succeeding 3-year period, adversely affected by virtue of 
     such prohibition in their ability to make noninfringing uses 
     of that particular class of works under this title, as 
     determined under subparagraph (C).
       ``(ii) The prohibition contained in subparagraph (A) shall 
     not apply to nonprofit libraries, archives, or educational 
     institutions, or to any entity described in section 
     501(c)(3), (4), or (6) of the Internal Revenue Code of 1986 
     that is exempt from tax under section 501(a) of such Code, 
     with respect to a particular class of works, if such entities 
     are, or are likely to be in the succeeding 3-year period, 
     adversely affected by virtue of such prohibition in their 
     ability to make noninfringing uses of that particular class 
     of works under this title, as determined under subparagraph 
     (C).
       ``(C) During the 2-year period described in subparagraph 
     (A), and during each succeeding 3-year period, the Secretary 
     of Commerce, in consultation with the Under Secretary of 
     Commerce for Intellectual Property Policy, the Assistant 
     Secretary of Commerce for Communications and Information, and 
     the Register of Copyrights, shall conduct a rulemaking on the 
     record to make the determination for purposes of subparagraph 
     (B) of whether nonprofit libraries, archives, or educational 
     institutions and other entities described in subparagraph (B) 
     or persons who have gained initial lawful access to a 
     copyrighted work are, or are likely to be in the succeeding 
     3-year period, adversely affected by the prohibition under 
     subparagraph (A) in their ability to make noninfringing uses 
     under this title of a particular class of copyrighted works. 
     In conducting such rulemaking, the Secretary shall examine--
       ``(i) the availability for use of copyrighted works;
       ``(ii) the availability for use of works for nonprofit 
     archival, preservation, and educational purposes;
       ``(iii) the impact of the prohibition on the circumvention 
     of technological measures applied to copyrighted works on 
     criticism, comment, news reporting, teaching, scholarship, or 
     research;
       ``(iv) the effect of circumvention of technological 
     measures on the market for or value of copyrighted works; and
       ``(v) such other factors as the Secretary, in consultation 
     with the Under Secretary of Commerce for Intellectual 
     Property Policy, the Assistant Secretary of Commerce for 
     Communications and Information, and the Register of 
     Copyrights, considers appropriate.
       ``(D) The Secretary shall publish any class of copyrighted 
     works for which the Secretary has determined, pursuant to the 
     rulemaking conducted under subparagraph (C), that 
     noninfringing uses by nonprofit libraries, archives, or 
     educational institutions and other entities described in 
     subparagraph (B) or by persons who have gained initial lawful 
     access to a copyrighted work are, or are likely to be, 
     adversely affected, and the prohibition contained in 
     subparagraph (A) shall not apply to such entities with 
     respect to such class of works, or to such persons with 
     respect to such copyrighted work, for the ensuing 3-year 
     period.
       ``(E) Neither the exception under subparagraph (B) from the 
     applicability of the prohibition contained in subparagraph 
     (A), nor any determination made in a rulemaking conducted 
     under subparagraph (C), may be used as a defense in any 
     action to enforce any provision of this title other than this 
     paragraph.
       ``(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 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 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 with that person's knowledge for use 
     in circumventing a technological measure that effectively 
     controls access to a work protected under this title.
       ``(3) As used in this subsection--
       ``(A) to `circumvent a technological measure' means to 
     descramble a scrambled work, to decrypt an encrypted work, or 
     otherwise to avoid, bypass, remove, deactivate, or impair a 
     technological measure, without the authority of the copyright 
     owner; and
       ``(B) a technological 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 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 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 with that person's knowledge for use 
     in circumventing protection afforded by a technological 
     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) to `circumvent protection afforded by a technological 
     measure' means avoiding, bypassing, removing, deactivating, 
     or otherwise impairing a technological measure; and
       ``(B) a technological 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) Other Rights, Etc., Not Affected.--(1) Nothing in 
     this section shall affect rights, remedies, limitations, or 
     defenses to copyright infringement, including fair use, under 
     this title.
       ``(2) Nothing in this section shall enlarge or diminish 
     vicarious or contributory liability for copyright 
     infringement in connection with any technology, product, 
     service, device, component, or part thereof.
       ``(3) Nothing in this section shall require that the design 
     of, or design and selection of parts and components for, a 
     consumer electronics, telecommunications, or computing 
     product provide for a response to any particular 
     technological measure.
       ``(4) Nothing in this section shall enlarge or diminish any 
     rights of free speech or the press for activities using 
     consumer electronics, telecommunications, or computing 
     products.
       ``(d) Exemption for Nonprofit Libraries, Archives, and 
     Educational Institutions.--(1) A nonprofit library, archives, 
     or educational institution which gains access to a 
     commercially exploited copyrighted work solely in order to 
     make a good faith determination of whether to acquire a copy 
     of that work for the sole purpose of engaging in conduct 
     permitted under this title shall not be in violation of 
     subsection (a)(1)(A). A copy of a work to which access has 
     been gained under this paragraph--
       ``(A) may not be retained longer than necessary to make 
     such good faith determination; and
       ``(B) may not be used for any other purpose.
       ``(2) The exemption made available under paragraph (1) 
     shall only apply with respect to a work when an identical 
     copy of that work is not reasonably available in another 
     form.
       ``(3) A nonprofit library, archives, or educational 
     institution that willfully for the purpose of commercial 
     advantage or financial gain violates paragraph (1)--
       ``(A) shall, for the first offense, be subject to the civil 
     remedies under section 1203; and
       ``(B) shall, for repeated or subsequent offenses, in 
     addition to the civil remedies under section 1203, forfeit 
     the exemption provided under paragraph (1).
       ``(4) This subsection may not be used as a defense to a 
     claim under subsection (a)(2) or (b), nor may this subsection 
     permit a nonprofit library, archives, or educational 
     institution to manufacture, import, offer to the public, 
     provide, or otherwise traffic in any technology, product, 
     service, component, or part thereof, which circumvents a 
     technological measure.
       ``(5) In order for a library or archives to qualify for the 
     exemption under this subsection, the collections of that 
     library or archives shall be--
       ``(A) open to the public; or
       ``(B) available not only to researchers affiliated with the 
     library or archives or with the institution of which it is a 
     part, but also to other persons doing research in a 
     specialized field.
       ``(e) Law Enforcement and Intelligence Activities.--This 
     section does not prohibit any lawfully authorized 
     investigative, protective, or intelligence activity of an 
     officer, agent, or employee of the United States, a State, or 
     a political subdivision of a State, or a person acting 
     pursuant to a contract with the United States, a State, or a 
     political subdivision of a State.
       ``(f) Reverse Engineering.--(1) Notwithstanding the 
     provisions of subsection (a)(1)(A), a person who has lawfully 
     obtained the right to use a copy of a computer program may 
     circumvent a technological measure that effectively controls 
     access to a particular portion of that program for the sole 
     purpose of identifying and analyzing those elements of the 
     program that are necessary to achieve interoperability of an 
     independently created computer program with other programs, 
     and that have not previously been readily available to the 
     person engaging in the circumvention, to the extent any such 
     acts of identification and analysis do not constitute 
     infringement under this title.
       ``(2) Notwithstanding the provisions of subsections (a)(2) 
     and (b), a person may develop and employ technological means 
     to circumvent a technological measure, or to circumvent 
     protection afforded by a technological measure, in order for 
     that person to make the identification and analysis permitted 
     under paragraph (1), or for the limited purpose of that 
     person achieving interoperability of an independently created 
     computer program with other programs, if such means are 
     necessary to achieve such interoperability, to the extent 
     that doing so does not constitute infringement under this 
     title.

[[Page H7077]]

       ``(3) The information acquired through the acts permitted 
     under paragraph (1), and the means permitted under paragraph 
     (2), may be made available to others if the person referred 
     to in paragraphs (1) and (2) provides such information or 
     means solely for the purpose of achieving interoperability of 
     an independently created computer program with other 
     programs, and to the extent that doing so does not constitute 
     infringement under this title or violate other applicable 
     law.
       ``(4) For purposes of this subsection, the term 
     `interoperability' means the ability of computer programs to 
     exchange information, and of such programs mutually to use 
     the information which has been exchanged.
       ``(g) Encryption Research.--
       ``(1) Definitions.--For purposes of this subsection--
       ``(A) the term `encryption research' means activities 
     necessary to identify and analyze flaws and vulnerabilities 
     of encryption technologies applied to copyrighted works, if 
     these activities are conducted to advance the state of 
     knowledge in the field of encryption technology or to assist 
     in the development of encryption products; and
       ``(B) the term `encryption technology' means the scrambling 
     and descrambling of information using mathematical formulas 
     or algorithms.
       ``(2) Permissible acts of encryption research.--
     Notwithstanding the provisions of subsection (a)(1)(A), it is 
     not a violation of that subsection for a person to circumvent 
     a technological measure as applied to a copy, phonorecord, 
     performance, or display of a published work in the course of 
     an act of good faith encryption research if--
       ``(A) the person lawfully obtained the encrypted copy, 
     phonorecord, performance, or display of the published work;
       ``(B) such act is necessary to conduct such encryption 
     research;
       ``(C) the person made a good faith effort to obtain 
     authorization before the circumvention; and
       ``(D) such act does not constitute infringement under this 
     title or a violation of applicable law other than this 
     section, including section 1030 of title 18 and those 
     provisions of title 18 amended by the Computer Fraud and 
     Abuse Act of 1986.
       ``(3) Factors in determining exemption.--In determining 
     whether a person qualifies for the exemption under paragraph 
     (2), the factors to be considered shall include--
       ``(A) whether the information derived from the encryption 
     research was disseminated, and if so, whether it was 
     disseminated in a manner reasonably calculated to advance the 
     state of knowledge or development of encryption technology, 
     versus whether it was disseminated in a manner that 
     facilitates infringement under this title or a violation of 
     applicable law other than this section, including a violation 
     of privacy or breach of security;
       ``(B) whether the person is engaged in a legitimate course 
     of study, is employed, or is appropriately trained or 
     experienced, in the field of encryption technology; and
       ``(C) whether the person provides the copyright owner of 
     the work to which the technological measure is applied with 
     notice of the findings and documentation of the research, and 
     the time when such notice is provided.
       ``(4) Use of technological means for research activities.--
     Notwithstanding the provisions of subsection (a)(2), it is 
     not a violation of that subsection for a person to--
       ``(A) develop and employ technological means to circumvent 
     a technological measure for the sole purpose of that person 
     performing the acts of good faith encryption research 
     described in paragraph (2); and
       ``(B) provide the technological means to another person 
     with whom he or she is working collaboratively for the 
     purpose of conducting the acts of good faith encryption 
     research described in paragraph (2) or for the purpose of 
     having that other person verify his or her acts of good faith 
     encryption research described in paragraph (2).
       ``(5) Report to congress.--Not later than 1 year after the 
     date of the enactment of this chapter, the Under Secretary of 
     Commerce for Intellectual Property Policy, the Assistant 
     Secretary of Commerce for Communications and Information, and 
     the Register of Copyrights shall jointly report to the 
     Congress on the effect this subsection has had on--
       ``(A) encryption research and the development of encryption 
     technology;
       ``(B) the adequacy and effectiveness of technological 
     measures designed to protect copyrighted works; and
       ``(C) protection of copyright owners against the 
     unauthorized access to their encrypted copyrighted works.
     The report shall include legislative recommendations, if any.
       ``(h) Excpetions Regarding Minors.--(1) In applying 
     subsection (a) to a component or part, the court may consider 
     the necessity for its intended and actual incorporation in a 
     technology, product, service, or device, which--
       ``(A) does not itself violate the provisions of this title; 
     and
       ``(B) has the sole purpose to prevent the access of minors 
     to material on the Internet.
       ``(2) Notwithstanding the provisions of subsection 
     (a)(1)(A), it is not a violation of that subsection for a 
     parent to circumvent a technological measure that effectively 
     controls access to a test, examination, or other evaluation 
     of his or her minor child's abilities that is given by a 
     nonprofit educational institution if--
       ``(A) the parent made a good faith effort to obtain 
     authorization before the circumvention; and
       ``(B) such act is necessary to obtain a copy of such test, 
     examination, or other evaluation.
       ``(i) Protection of Personally Identifying Information.--
       (1) Circumvention permitted.--Notwithstanding the 
     provisions of subsection (a)(1)(A), it is not a violation of 
     that subsection for a person to circumvent a technological 
     measure that effectively controls access to a work protected 
     under this title, if--
       ``(A) the technological measure, or the work it protects, 
     contains the capability of collecting or disseminating 
     personally identifying information reflecting the online 
     activities of a natural person who seeks to gain access to 
     the work protected;
       ``(B) in the normal course of its operation, the 
     technological measure, or the work it protects, collects or 
     disseminates personally identifying information about the 
     person who seeks to gain access to the work protected, 
     without providing conspicuous notice of such collection or 
     dissemination to such person, and without providing such 
     person with the capability to prevent or restrict such 
     collection or dissemination;
       ``(C) the act of circumvention has the sole effect of 
     identifying and disabling the capability described in 
     subparagraph (A), and has no other effect on the ability of 
     any person to gain access to any work; and
       ``(D) the act of circumvention is carried out solely for 
     the purpose of preventing the collection or dissemination of 
     personally identifying information about a natural person who 
     seeks to gain access to the work protected, and is not in 
     violation of any other law.
       ``(2) Inapplicability to certain technological measures.--
     This subsection does not apply to a technological measure, or 
     a work it protects, that does not collect or disseminate 
     personally identifying information and that is disclosed to a 
     user as not having or using such capability.

     ``Sec. 1202. Integrity of copyright management information

       ``(a) False Copyright Management Information.--No person 
     shall knowingly and with the intent to induce, enable, 
     facilitate, or conceal infringement--
       ``(1) provide copyright management information that is 
     false, or
       ``(2) distribute or import for distribution copyright 
     management information that is false.
       ``(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 this title.
       ``(c) Definition.--As used in this section, the term 
     `copyright management information' means any of the following 
     information conveyed in connection with copies or 
     phonorecords of a work or performances or displays of a work, 
     including in digital form, except that such term does not 
     include any personally identifying information about a user 
     of a work or of a copy, phonorecord, performance, or display 
     of a work:
       ``(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) With the exception of public performances of works by 
     radio and television broadcast stations, the name of, and 
     other identifying information about, a performer whose 
     performance is fixed in a work other than an audiovisual 
     work.
       ``(5) With the exception of public performances of works by 
     radio and television broadcast stations, in the case of an 
     audiovisual work, the name of, and other identifying 
     information about, a writer, performer, or director who is 
     credited in the audiovisual work.
       ``(6) Terms and conditions for use of the work.
       ``(7) Identifying numbers or symbols referring to such 
     information or links to such information.
       ``(8) 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 an 
     officer,

[[Page H7078]]

     agent, or employee of the United States, a State, or a 
     political subdivision of a State, or a person acting pursuant 
     to a contract with the United States, a State, or a political 
     subdivision of a State.
       ``(e) Limitations on Liability.--
       ``(1) Analog transmissions.--In the case of an analog 
     transmission, a person who is making transmissions in its 
     capacity as a broadcast station, or as a cable system, or 
     someone who provides programming to such station or system, 
     shall not be liable for a violation of subsection (b) if--
       ``(A) avoiding the activity that constitutes such violation 
     is not technically feasible or would create an undue 
     financial hardship on such person; and
       ``(B) such person did not intend, by engaging in such 
     activity, to induce, enable, facilitate, or conceal 
     infringement of a right under this title.
       ``(2) Digital transmissions.--
       ``(A) If a digital transmission standard for the placement 
     of copyright management information for a category of works 
     is set in a voluntary, consensus standard-setting process 
     involving a representative cross-section of broadcast 
     stations or cable systems and copyright owners of a category 
     of works that are intended for public performance by such 
     stations or systems, a person identified in paragraph (1) 
     shall not be liable for a violation of subsection (b) with 
     respect to the particular copyright management information 
     addressed by such standard if--
       ``(i) the placement of such information by someone other 
     than such person is not in accordance with such standard; and
       ``(ii) the activity that constitutes such violation is not 
     intended to induce, enable, facilitate, or conceal 
     infringement of a right under this title.
       ``(B) Until a digital transmission standard has been set 
     pursuant to subparagraph (A) with respect to the placement of 
     copyright management information for a category or works, a 
     person identified in paragraph (1) shall not be liable for a 
     violation of subsection (b) with respect to such copyright 
     management information, if the activity that constitutes such 
     violation is not intended to induce, enable, facilitate, or 
     conceal infringement of a right under this title, and if--
       ``(i) the transmission of such information by such person 
     would result in a perceptible visual or aural degradation of 
     the digital signal; or
       ``(ii) the transmission of such information by such person 
     would conflict with--

       ``(I) an applicable government regulation relating to 
     transmission of information in a digital signal;
       ``(II) an applicable industry-wide standard relating to the 
     transmission of information in a digital signal that was 
     adopted by a voluntary consensus standards body prior to the 
     effective date of this chapter; or
       ``(III) an applicable industry-wide standard relating to 
     the transmission of information in a digital signal that was 
     adopted in a voluntary, consensus standards-setting process 
     open to participation by a representative cross-section of 
     broadcast stations or cable systems and copyright owners of a 
     category of works that are intended for public performance by 
     such stations or systems.

       ``(3) Definitions.--As used in this subsection--
       ``(A) the term `broadcast station' has the meaning given 
     that term in section 3 of the Communications Act of 1934 (47 
     U.S.C. 153)); and
       ``(B) the term `cable system' has the meaning given that 
     term in section 602 of the Communications Act of 1934 (47 
     U.S.C. 522)).

     ``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, but in no event shall impose a prior restraint on 
     free speech or the press protected under the 1st amendment to 
     the Constitution;
       ``(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 
     title, 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 
     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.--
       ``(A) In general.--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.
       ``(B) Nonprofit library, archives, or educational 
     institutions.--In the case of a nonprofit library, archives, 
     or educational institution, the court shall remit damages in 
     any case in which the library, archives, or educational 
     institution sustains the burden of proving, and the court 
     finds, that the library, archives, or educational institution 
     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) Limitation for Nonprofit Library, Archives, or 
     Educational Institution.--Subsection (a) shall not apply to a 
     nonprofit library, archives, or educational institution.
       ``(c) Statute of Limitations.--No criminal proceeding shall 
     be brought under this section unless such proceeding is 
     commenced within five years after the cause of action arose.

     ``Sec. 1205. Savings clause

       ``Nothing in this chapter abrogates, diminishes, or weakens 
     the provisions of, nor provides any defense or element of 
     mitigation in a criminal prosecution or civil action under, 
     any Federal or State law that prevents the violation of the 
     privacy of an individual in connection with the individual's 
     use of the Internet.''.
       (b) Conforming amendment.--The table of chapters for title 
     17, United States Code, is amended by adding after the item 
     relating to chapter 11 the following:

``12. Copyright Protection and Management Systems...........1201''.....

     SEC. 104. DEVELOPMENT AND IMPLEMENTATION OF TECHNOLOGICAL 
                   PROTECTION MEASURES.

       (a) Statement of Congressional Policy and Objective.--It is 
     the sense of the Congress that technological measures that 
     effectively control access to works protected under title 17, 
     United States Code, or that effectively protect a right of a 
     copyright owner under such title play a crucial role in 
     safeguarding the interests of both copyright owners and 
     lawful users of copyrighted works in digital formats, by 
     facilitating lawful uses of such works while protecting the 
     private property interests of holders of rights under title 
     17, United States Code. Accordingly, the expeditious 
     implementation of such measures, developed by the private 
     sector is a key factor in realizing the full benefits of 
     making available copyrighted works through digital networks, 
     including the benefits set forth in this section.
       (b) Technological Measures.--The technological measures 
     referred to in subsection (a) shall include, but not be 
     limited to, those which--
       (1) enable nonprofit libraries, for nonprofit purposes, to 
     continue to lend to library users copies or phonorecords that 
     such libraries have lawfully acquired, including the lending 
     of such copies or phonorecords in digital formats in a manner 
     that prevents infringement;
       (2) effectively protect against the infringement of 
     exclusive rights under title 17, United States Code, and 
     facilitate the exercise of those exclusive rights; and
       (3) promote the development and implementation of diverse 
     methods, mechanisms, and arrangements in the marketplace for 
     making available copyrighted works in digital formats which 
     provide opportunities for individual members of the public to 
     make lawful uses of copyrighted works in digital formats.

[[Page H7079]]

       (c) Procedures for Developing and Implementing 
     Technological Measures.--The technological measures whose 
     development and implementation the Congress anticipates 
     include, but are not limited to, those which--
       (1) are developed pursuant to a broad consensus in an open, 
     fair, voluntary, and multi-industry process;
       (2) are made available on reasonable and nondiscriminatory 
     terms; and
       (3) do not impose substantial costs or burdens on copyright 
     owners or on manufacturers of hardware or software used in 
     conjunction with copyrighted works in digital formats.
       (d) Oversight and Reporting.--(1) The Under Secretary of 
     Commerce for Intellectual Property Policy, the Assistant 
     Secretary of Commerce for Communications and Information, and 
     the Register of Copyrights shall jointly review the impact of 
     the enactment of section 1201 of title 17, United States 
     Code, on the access of individual users to copyrighted works 
     in digital formats and shall jointly report annually thereon 
     to the Committees on the Judiciary and on Commerce of the 
     House of Representatives and the Committees on the Judiciary 
     and on Commerce, Science, and Transportation of the Senate.
       (2) Each report under paragraph (1) shall address the 
     following issues:
       (A) The status of the development and implementation of 
     technological measures described in this section, including 
     measures that advance the objectives of this section, and the 
     effectiveness of such technological measures in protecting 
     the private property interests of copyright owners under 
     title 17, United States Code.
       (B) The degree to which individual lawful users of 
     copyrighted works--
       (i) have access to the Internet and digital networks 
     generally;
       (ii) are dependent upon such access for their use of 
     copyrighted works;
       (iii) have available to them other channels for obtaining 
     and using copyrighted works, other than the Internet and 
     digital networks generally;
       (iv) are required to pay copyright owners or intermediaries 
     for each lawful use of copyrighted works in digital formats 
     to which they have access; and
       (v) are able to utilize nonprofit libraries to obtain 
     access, through borrowing without payment by the user, to 
     copyrighted works in digital formats.
       (C) The degree to which infringement of copyrighted works 
     in digital formats is occurring.
       (D) Whether and the extent to which section 1201 of title 
     17, United States Code, is asserted as a basis for liability 
     in claims brought against persons conducting research and 
     development, including reverse engineering of copyrighted 
     works, and the extent to which such claims constitute a 
     serious impediment to the development and production of 
     competitive goods and services.
       (E) The degree to which individual users of copyrighted 
     materials in digital formats are able effectively to protect 
     themselves against the use of technological measures to carry 
     out or facilitate the undisclosed collection and 
     dissemination of personally identifying information 
     concerning the access to and use of such materials by such 
     users.
       (F) Such other issues as the Under Secretary of Commerce 
     for Intellectual Property Policy, the Assistant Secretary of 
     Commerce for Communications and Information, and the Register 
     of Copyrights identify as relevant to the impact of the 
     enactment of section 1201 of title 17, United States Code, on 
     the access of individual users to copyrighted works in 
     digital formats.
       (3) The first report under this subsection shall be 
     submitted not later than one year after the date of the 
     enactment of this Act, and the last such report shall be 
     submitted not later than three years after the date of the 
     enactment of this Act.
       (4) The reports under this subsection may include such 
     recommendations for additional legislative action as the 
     Under Secretary of Commerce for Intellectual Property Policy, 
     the Assistant Secretary of Commerce for Communications and 
     Information, and the Register of Copyrights consider 
     advisable in order to further the objectives of this section.

     SEC. 105. EVALUATION OF IMPACT OF COPYRIGHT LAW AND 
                   AMENDMENTS ON ELECTRONIC COMMERCE AND 
                   TECHNOLOGICAL DEVELOPMENT.

       (a) Evaluation by Under Secretary of Commerce and Register 
     of Copyrights.--The Under Secretary of Commerce for 
     Intellectual Property Policy, the Assistant Secretary of 
     Commerce for Communications and Information, and the Register 
     of Copyrights shall jointly evaluate--
       (1) the effects of the amendments made by this title and 
     the development of electronic commerce and associated 
     technology on the operation of sections 109 and 117 of title 
     17, United States Code; and
       (2) the relationship between existing and emergent 
     technology and the operation of sections 109 and 117 of title 
     17, United States Code.
       (c) Report to Congress.--The Under Secretary of Commerce 
     for Intellectual Property Policy, the Assistant Secretary of 
     Commerce for Communications and Information, and the Register 
     of Copyrights shall, not later than 24 months after the date 
     of the enactment of this Act, submit to the Congress a joint 
     report on the evaluation conducted under subsection (b), 
     including any legislative recommendations the Under 
     Secretary, the Assistant Secretary, and the Register may 
     have.

     SEC. 106. EFFECTIVE DATE.

       (a) In General.--Subject to subsection (b), this title and 
     the amendments made by this title 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 102(a)(4) of this Act.
       (B) The amendment made by section 102(a)(6) of this Act.
       (C) Subparagraph (C) of section 104A(h)(1) of title 17, 
     United States Code, as amended by section 102(c)(1) of this 
     Act.
       (D) Subparagraph (C) of section 104A(h)(3) of title 17, 
     United States Code, as amended by section 102(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 102(a)(4) of this Act.
       (B) The amendment made by section 102(a)(7) of this Act.
       (C) The amendment made by section 102(b)(2) of this Act.
       (D) Subparagraph (D) of section 104A(h)(1) of title 17, 
     United States Code, as amended by section 102(c)(1) of this 
     Act.
       (E) Subparagraph (D) of section 104A(h)(3) of title 17, 
     United States Code, as amended by section 102(c)(2) of this 
     Act.
       (F) The amendments made by section 102(c)(3) of this Act.
      TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``Online Copyright 
     Infringement Liability Limitation Act''.

     SEC. 202. LIMITATIONS ON LIABILITY FOR COPYRIGHT 
                   INFRINGEMENT.

       (a) In General.--Chapter 5 of title 17, United States Code, 
     is amended by adding after section 511 the following new 
     section:

     ``Sec. 512. Limitations on liability relating to material 
       online

       ``(a) Transitory Digital Network Communications.--A service 
     provider shall not be liable for monetary relief, or, except 
     as provided in subsection (i), for injunctive or other 
     equitable relief, for infringement of copyright by reason of 
     the provider's transmitting, routing, or providing 
     connections for, material through a system or network 
     controlled or operated by or for the service provider, or by 
     reason of the intermediate and transient storage of that 
     material in the course of such transmitting, routing, or 
     providing connections, if--
       ``(1) the transmission of the material was initiated by or 
     at the direction of a person other than the service provider;
       ``(2) the transmission, routing, provision of connections, 
     or storage is carried out through an automatic technical 
     process without selection of the material by the service 
     provider;
       ``(3) the service provider does not select the recipients 
     of the material except as an automatic response to the 
     request of another person;
       ``(4) no copy of the material made by the service provider 
     in the course of such intermediate or transient storage is 
     maintained on the system or network in a manner ordinarily 
     accessible to anyone other than anticipated recipients, and 
     no such copy is maintained on the system or network in a 
     manner ordinarily accessible to such anticipated recipients 
     for a longer period than is reasonably necessary for the 
     transmission, routing, or provision of connections; and
       ``(5) the material is transmitted through the system or 
     network without modification of its content.
       ``(b) System Caching.--
       ``(1) Limitation on liability.--A service provider shall 
     not be liable for monetary relief, or, except as provided in 
     subsection (i), for injunctive or other equitable relief, for 
     infringement of copyright by reason of the intermediate and 
     temporary storage of material on a system or network 
     controlled or operated by or for the service provider in a 
     case in which--
       ``(A) the material is made available online by a person 
     other than the service provider,
       ``(B) the material is transmitted from the person described 
     in subparagraph (A) through the system or network to a person 
     other than the person described in subparagraph (A) at the 
     direction of that other person, and
       ``(C) the storage is carried out through an automatic 
     technical process for the purpose of making the material 
     available to users of the system or network who, after the 
     material is transmitted as described in subparagraph (B), 
     request access to the material from the person described in 
     subparagraph (A),

     if the conditions set forth in paragraph (2) are met.
       (2) Conditions.--The conditions referred to in paragraph 
     (1) are that--
       ``(A) the material described in paragraph (1) is 
     transmitted to the subsequent users described in paragraph 
     (1)(C) without modification to its content from the manner in 
     which

[[Page H7080]]

     the material was transmitted from the person described in 
     paragraph (1)(A);
       ``(B) the service provider described in paragraph (1) 
     complies with rules concerning the refreshing, reloading, or 
     other updating of the material when specified by the person 
     making the material available online in accordance with a 
     generally accepted industry standard data communications 
     protocol for the system or network through which that person 
     makes the material available, except that this subparagraph 
     applies only if those rules are not used by the person 
     described in paragraph (1)(A) to prevent or unreasonably 
     impair the intermediate storage to which this subsection 
     applies;
       ``(C) the service provider does not interfere with the 
     ability of technology associated with the material to return 
     to the person described in paragraph (1)(A) the information 
     that would have been available to that person if the material 
     had been obtained by the subsequent users described in 
     paragraph (1)(C) directly from that person, except that this 
     subparagraph applies only if that technology--
       ``(i) does not significantly interfere with the performance 
     of the provider's system or network or with the intermediate 
     storage of the material;
       ``(ii) is consistent with generally accepted industry 
     standard communications protocols; and
       ``(iii) does not extract information from the provider's 
     system or network other than the information that would have 
     been available to the person described in paragraph (1)(A) if 
     the subsequent users had gained access to the material 
     directly from that person;
       ``(D) if the person described in paragraph (1)(A) has in 
     effect a condition that a person must meet prior to having 
     access to the material, such as a condition based on payment 
     of a fee or provision of a password or other information, the 
     service provider permits access to the stored material in 
     significant part only to users of its system or network that 
     have met those conditions and only in accordance with those 
     conditions; and
       ``(E) if the person described in paragraph (1)(A) makes 
     that material available online without the authorization of 
     the copyright owner of the material, the service provider 
     responds expeditiously to remove, or disable access to, the 
     material that is claimed to be infringing upon notification 
     of claimed infringement as described in subsection (c)(3), 
     except that this subparagraph applies only if--
       ``(i) the material has previously been removed from the 
     originating site or access to it has been disabled, or a 
     court has ordered that the material be removed from the 
     originating site or that access to the material on the 
     originating site be disabled; and
       ``(ii) the party giving the notification includes in the 
     notification a statement confirming that the material has 
     been removed from the originating site or access to it has 
     been disabled or that a court has ordered that the material 
     be removed from the originating site or that access to the 
     material on the originating site be disabled.
       ``(c) Information Residing on Systems or Networks at 
     Direction of Users.--
       ``(1) In general.--A service provider shall not be liable 
     for monetary relief, or, except as provided in subsection 
     (i), for injunctive or other equitable relief, for 
     infringement of copyright by reason of the storage at the 
     direction of a user of material that resides on a system or 
     network controlled or operated by or for the service 
     provider, if the service provider--
       ``(A)(i) does not have actual knowledge that the material 
     or an activity using the material on the system or network is 
     infringing;
       ``(ii) in the absence of such actual knowledge, is not 
     aware of facts or circumstances from which infringing 
     activity is apparent; or
       ``(iii) upon obtaining such knowledge or awareness, acts 
     expeditiously to remove, or disable access to, the material;
       ``(B) does not receive a financial benefit directly 
     attributable to the infringing activity, in a case in which 
     the service provider has the right and ability to control 
     such activity; and
       ``(C) upon notification of claimed infringement as 
     described in paragraph (4), responds expeditiously to remove, 
     or disable access to, the material that is claimed to be 
     infringing or to be the subject of infringing activity.
       ``(2) Limitation on liability of nonprofit educational 
     institutions.--A nonprofit educational institution that is a 
     service provider shall not be liable for monetary relief, or, 
     except as provided in subsection (i), for injunctive or other 
     equitable relief, by reason of the acts or omissions of a 
     faculty member, administrative employee, student, or graduate 
     student, unless such faculty member, administrative employee, 
     student, or graduate student is exercising managerial or 
     operational responsibilities that directly relate to the 
     institution's function as a service provider.
       ``(3) Designated agent.--The limitations on liability 
     established in this subsection apply to a service provider 
     only if the service provider has designated an agent to 
     receive notifications of claimed infringement described in 
     paragraph (4), by making available through its service, 
     including on its website in a location accessible to the 
     public, and by providing to the Copyright Office, 
     substantially the following information:
       ``(A) the name, address, phone number, and electronic mail 
     address of the agent.
       ``(B) other contact information which the Register of 
     Copyrights may deem appropriate.

     The Register of Copyrights shall maintain a current directory 
     of agents available to the public for inspection, including 
     through the Internet, in both electronic and hard copy 
     formats, and may require payment of a fee by service 
     providers to cover the costs of maintaining the directory.
       ``(4) Elements of notification.--
       ``(A) To be effective under this subsection, a notification 
     of claimed infringement must be a written communication 
     provided to the designated agent of a service provider that 
     includes substantially the following:
       ``(i) A physical or electronic signature of a person 
     authorized to act on behalf of the owner of an exclusive 
     right that is allegedly infringed.
       ``(ii) Identification of the copyrighted work claimed to 
     have been infringed, or, if multiple copyrighted works at a 
     single online site are covered by a single notification, a 
     representative list of such works at that site.
       ``(iii) Identification of the material that is claimed to 
     be infringing or to be the subject of infringing activity and 
     that is to be removed or access to which is to be disabled, 
     and information reasonably sufficient to permit the service 
     provider to locate the material.
       ``(iv) Information reasonably sufficient to permit the 
     service provider to contact the complaining party, such as an 
     address, telephone number, and, if available, an electronic 
     mail address at which the complaining party may be contacted.
       ``(v) A statement that the complaining party has a good 
     faith belief that use of the material in the manner 
     complained of is not authorized by the copyright owner, its 
     agent, or the law.
       ``(vi) A statement that the information in the notification 
     is accurate, and under penalty of perjury, that the 
     complaining party is authorized to act on behalf of the owner 
     of an exclusive right that is allegedly infringed.
       ``(B)(i) Subject to clause (ii), a notification from a 
     copyright owner or from a person authorized to act on behalf 
     of the copyright owner that fails to comply substantially 
     with the provisions of subparagraph (A) shall not be 
     considered under paragraph (1)(A) in determining whether a 
     service provider has actual knowledge or is aware of facts or 
     circumstances from which infringing activity is apparent.
       ``(ii) In a case in which the notification that is provided 
     to the service provider's designated agent fails to comply 
     substantially with all the provisions of subparagraph (A) but 
     substantially complies with clauses (ii), (iii), and (iv) of 
     subparagraph (A), clause (i) of this subparagraph applies 
     only if the service provider promptly attempts to contact the 
     person making the notification or takes other reasonable 
     steps to assist in the receipt of notification that 
     substantially complies with all the provisions of 
     subparagraph (A).
       ``(d) Information Location Tools.--A service provider shall 
     not be liable for monetary relief, or, except as provided in 
     subsection (i), for injunctive or other equitable relief, for 
     infringement of copyright by reason of the provider referring 
     or linking users to an online location containing infringing 
     material or infringing activity, by using information 
     location tools, including a directory, index, reference, 
     pointer, or hypertext link, if the service provider--
       ``(1)(A) does not have actual knowledge that the material 
     or activity is infringing;
       ``(B) in the absence of such actual knowledge, is not aware 
     of facts or circumstances from which infringing activity is 
     apparent; or
       ``(C) upon obtaining such knowledge or awareness, acts 
     expeditiously to remove, or disable access to, the material;
       ``(2) does not receive a financial benefit directly 
     attributable to the infringing activity, in a case in which 
     the service provider has the right and ability to control 
     such activity; and
       ``(3) upon notification of claimed infringement as 
     described in subsection (c)(4), responds expeditiously to 
     remove, or disable access to, the material that is claimed to 
     be infringing or to be the subject of infringing activity, 
     except that, for purposes of this paragraph, the information 
     described in subsection (c)(4)(A)(iii) shall be 
     identification of the reference or link, to material or 
     activity claimed to be infringing, that is to be removed or 
     access to which is to be disabled, and information reasonably 
     sufficient to permit the service provider to locate that 
     reference or link.
       ``(e) Misrepresentations.--Any person who knowingly 
     materially misrepresents under this section--
       ``(1) that material or activity is infringing, or
       ``(2) that material or activity was removed or disabled by 
     mistake or misidentification,

      shall be liable for any damages, including costs and 
     attorneys' fees, incurred by the alleged infringer, by any 
     copyright owner or copyright owner's authorized licensee, or 
     by a service provider, who is injured by such 
     misrepresentation, as the result of the service provider 
     relying upon such misrepresentation in removing or disabling 
     access to the material or activity claimed to be infringing, 
     or in replacing the removed material or ceasing to disable 
     access to it.

[[Page H7081]]

       ``(f) Replacement of Removed or Disabled Material and 
     Limitation on Other Liability.--
       ``(1) No liability for taking down generally.--Subject to 
     paragraph (2), a service provider shall not be liable to any 
     person for any claim based on the service provider's good 
     faith disabling of access to, or removal of, material or 
     activity claimed to be infringing or based on facts or 
     circumstances from which infringing activity is apparent, 
     regardless of whether the material or activity is ultimately 
     determined to be infringing.
       ``(2) Exception.--Paragraph (1) shall not apply with 
     respect to material residing at the direction of a subscriber 
     of the service provider on a system or network controlled or 
     operated by or for the service provider that is removed, or 
     to which access is disabled by the service provider, pursuant 
     to a notice provided under subsection (c)(1)(C), unless the 
     service provider--
       ``(A) takes reasonable steps promptly to notify the 
     subscriber that it has removed or disabled access to the 
     material;
       ``(B) upon receipt of a counter notification described in 
     paragraph (3), promptly provides the person who provided the 
     notification under subsection (c)(1)(C) with a copy of the 
     counter notification, and informs that person that it will 
     replace the removed material or cease disabling access to it 
     in 10 business days; and
       ``(C) replaces the removed material and ceases disabling 
     access to it not less than 10, nor more than 14, business 
     days following receipt of the counter notice, unless its 
     designated agent first receives notice from the person who 
     submitted the notification under subsection (c)(1)(C) that 
     such person has filed an action seeking a court order to 
     restrain the subscriber from engaging in infringing activity 
     relating to the material on the service provider's system or 
     network.
       ``(3) Contents of counter notification.--To be effective 
     under this subsection, a counter notification must be a 
     written communication provided to the service provider's 
     designated agent that includes substantially the following:
       ``(A) A physical or electronic signature of the subscriber.
       ``(B) Identification of the material that has been removed 
     or to which access has been disabled and the location at 
     which the material appeared before it was removed or access 
     to it was disabled.
       ``(C) A statement under penalty of perjury that the 
     subscriber has a good faith belief that the material was 
     removed or disabled as a result of mistake or 
     misidentification of the material to be removed or disabled.
       ``(D) The subscriber's name, address, and telephone number, 
     and a statement that the subscriber consents to the 
     jurisdiction of Federal District Court for the judicial 
     district in which the address is located, or if the 
     subscriber's address is outside of the United States, for any 
     judicial district in which the service provider may be found, 
     and that the subscriber will accept service of process from 
     the person who provided notification under subsection 
     (c)(1)(C) or an agent of such person.
       ``(4) Limitation on other liability.--A service provider's 
     compliance with paragraph (2) shall not subject the service 
     provider to liability for copyright infringement with respect 
     to the material identified in the notice provided under 
     subsection (c)(1)(C).
       ``(g) Subpoena To Identify Infringer.--
       ``(1) Request.--A copyright owner or a person authorized to 
     act on the owner's behalf may request the clerk of any United 
     States district court to issue a subpoena to a service 
     provider for identification of an alleged infringer in 
     accordance with this subsection.
       ``(2) Contents of request.--The request may be made by 
     filing with the clerk--
       ``(A) a copy of a notification described in subsection 
     (c)(4)(A);
       ``(B) a proposed subpoena; and
       ``(C) a sworn declaration to the effect that the purpose 
     for which the subpoena is sought is to obtain the identity of 
     an alleged infringer and that such information will only be 
     used for the purpose of protecting rights under this title.
       ``(3) Contents of subpoena.--The subpoena shall authorize 
     and order the service provider receiving the notification and 
     the subpoena to expeditiously disclose to the copyright owner 
     or person authorized by the copyright owner information 
     sufficient to identify the alleged infringer of the material 
     described in the notification to the extent such information 
     is available to the service provider.
       ``(4) Basis for granting subpoena.--If the notification 
     filed satisfies the provisions of subsection (c)(4)(A), the 
     proposed subpoena is in proper form, and the accompanying 
     declaration is properly executed, the clerk shall 
     expeditiously issue and sign the proposed subpoena and return 
     it to the requester for delivery to the service provider.
       ``(5) Actions of service provider receiving subpoena.--Upon 
     receipt of the issued subpoena, either accompanying or 
     subsequent to the receipt of a notification described in 
     subsection (c)(4)(A), the service provider shall 
     expeditiously disclose to the copyright owner or person 
     authorized by the copyright owner the information required by 
     the subpoena, notwithstanding any other provision of law and 
     regardless of whether the service provider responds to the 
     notification.
       ``(6) Rules applicable to subpoena.--Unless otherwise 
     provided by this section or by applicable rules of the court, 
     the procedure for issuance and delivery of the subpoena, and 
     the remedies for noncompliance with the subpoena, shall be 
     governed to the greatest extent practicable by those 
     provisions of the Federal Rules of Civil Procedure governing 
     the issuance, service, and enforcement of a subpoena duces 
     tecum.
       ``(h) Conditions for Eligibility.--
       ``(1) Accommodation of technology.--The limitations on 
     liability established by this section shall apply to a 
     service provider only if the service provider--
       ``(A) has adopted and reasonably implemented, and informs 
     subscribers and account holders of the service provider's 
     system or network of, a policy that provides for the 
     termination in appropriate circumstances of subscribers and 
     account holders of the service provider's system or network 
     who are repeat infringers; and
       ``(B) accommodates and does not interfere with standard 
     technical measures.
       ``(2) Definition.--As used in this subsection, the term 
     `standard technical measures' means technical measures that 
     are used by copyright owners to identify or protect 
     copyrighted works and--
       ``(A) have been developed pursuant to a broad consensus of 
     copyright owners and service providers in an open, fair, 
     voluntary, multi-industry standards process;
       ``(B) are available to any person on reasonable and 
     nondiscriminatory terms; and
       ``(C) do not impose substantial costs on service providers 
     or substantial burdens on their systems or networks.
       ``(i) Injunctions.--The following rules shall apply in the 
     case of any application for an injunction under section 502 
     against a service provider that is not subject to monetary 
     remedies under this section:
       ``(1) Scope of relief.--(A) With respect to conduct other 
     than that which qualifies for the limitation on remedies set 
     forth in subsection (a), the court may grant injunctive 
     relief with respect to a service provider only in one or more 
     of the following forms:
       ``(i) An order restraining the service provider from 
     providing access to infringing material or activity residing 
     at a particular online site on the provider's system or 
     network.
       ``(ii) An order restraining the service provider from 
     providing access to a subscriber or account holder of the 
     service provider's system or network who is engaging in 
     infringing activity and is identified in the order, by 
     terminating the accounts of the subscriber or account holder 
     that are specified in the order.
       ``(iii) Such other injunctive relief as the court may 
     consider necessary to prevent or restrain infringement of 
     copyrighted material specified in the order of the court at a 
     particular online location, if such relief is the least 
     burdensome to the service provider among the forms of relief 
     comparably effective for that purpose.
       ``(B) If the service provider qualifies for the limitation 
     on remedies described in subsection (a), the court may only 
     grant injunctive relief in one or both of the following 
     forms:
       ``(i) An order restraining the service provider from 
     providing access to a subscriber or account holder of the 
     service provider's system or network who is using the 
     provider's service to engage in infringing activity and is 
     identified in the order, by terminating the accounts of the 
     subscriber or account holder that are specified in the order.
       ``(ii) An order restraining the service provider from 
     providing access, by taking reasonable steps specified in the 
     order to block access, to a specific, identified, online 
     location outside the United States.
       ``(2) Considerations.--The court, in considering the 
     relevant criteria for injunctive relief under applicable law, 
     shall consider--
       ``(A) whether such an injunction, either alone or in 
     combination with other such injunctions issued against the 
     same service provider under this subsection, would 
     significantly burden either the provider or the operation of 
     the provider's system or network;
       ``(B) the magnitude of the harm likely to be suffered by 
     the copyright owner in the digital network environment if 
     steps are not taken to prevent or restrain the infringement;
       ``(C) whether implementation of such an injunction would be 
     technically feasible and effective, and would not interfere 
     with access to noninfringing material at other online 
     locations; and
       ``(D) whether other less burdensome and comparably 
     effective means of preventing or restraining access to the 
     infringing material are available.
       ``(3) Notice and ex parte orders.--Injunctive relief under 
     this subsection shall be available only after notice to the 
     service provider and an opportunity for the service provider 
     to appear are provided, except for orders ensuring the 
     preservation of evidence or other orders having no material 
     adverse effect on the operation of the service provider's 
     communications network.
       ``(j) Definitions.--
       ``(1) Service provider.--(A) As used in subsection (a), the 
     term `service provider' means an entity offering the 
     transmission, routing, or providing of connections for 
     digital online communications, between or among points 
     specified by a user, of material of the user's choosing, 
     without modification to the content of the material as sent 
     or received.
       ``(B) As used in this section, other than subsection (a), 
     the term `service provider' means a provider of online 
     services or network access, or the operator of facilities

[[Page H7082]]

     therefor, and includes an entity described in subparagraph 
     (A).
       ``(2) Monetary relief.--As used in this section, the term 
     `monetary relief' means damages, costs, attorneys' fees, and 
     any other form of monetary payment.
       ``(k) Other Defenses Not Affected.--The failure of a 
     service provider's conduct to qualify for limitation of 
     liability under this section shall not bear adversely upon 
     the consideration of a defense by the service provider that 
     the service provider's conduct is not infringing under this 
     title or any other defense.
       ``(l) Protection of Privacy.--Nothing in this section shall 
     be construed to condition the applicability of subsections 
     (a) through (d) on--
       ``(1) a service provider monitoring its service or 
     affirmatively seeking facts indicating infringing activity, 
     except to the extent consistent with a standard technical 
     measure complying with the provisions of subsection (h); or
       ``(2) a service provider gaining access to, removing, or 
     disabling access to material in cases in which such conduct 
     is prohibited by law.
       ``(m) Construction.--Subsections (a), (b), (c), and (d) 
     describe separate and distinct functions for purposes of 
     applying this section. Whether a service provider qualifies 
     for the limitation on liability in any one of those 
     subsections shall be based solely on the criteria in that 
     subsection, and shall not affect a determination of whether 
     that service provider qualifies for the limitations on 
     liability under any other such subsection.''.
       (b) Conforming Amendment.--The table of sections for 
     chapter 5 of title 17, United States Code, is amended by 
     adding at the end the following:

``512. Limitations on liability relating to material online.''.

       (c) Effective Date.--The amendments made by this section 
     take effect on the date of the enactment of this Act.

     SEC. 203. EFFECTIVE DATE.

       This title and the amendments made by this title shall take 
     effect on the date of the enactment of this Act.
     TITLE III--COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

     SEC. 301. SHORT TITLE.

       This title may be cited as the ``Computer Maintenance 
     Competition Assurance Act''.

     SEC. 302. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER PROGRAMS.

       Section 117 of title 17, United States Code, is amended--
       (1) by striking ``Notwithstanding'' and inserting the 
     following:
       ``(a) Making of Additional Copy or Adaptation by Owner of 
     Copy.--Notwithstanding'';
       (2) by striking ``Any exact'' and inserting the following:
       ``(b) Lease, Sale, or Other Transfer of Additional Copy or 
     Adaptation.--Any exact''; and
       (3) by adding at the end the following:
       ``(c) Machine Maintenance or Repair.--Notwithstanding the 
     provisions of section 106, it is not an infringement for the 
     owner or lessee of a machine to make or authorize the making 
     of a copy of a computer program if such copy is made solely 
     by virtue of the activation of a machine that lawfully 
     contains an authorized copy of the computer program, for 
     purposes only of maintenance or repair of that machine, if--
       ``(1) such new copy is used in no other manner and is 
     destroyed immediately after the maintenance or repair is 
     completed; and
       ``(2) with respect to any computer program or part thereof 
     that is not necessary for that machine to be activated, such 
     program or part thereof is not accessed or used other than to 
     make such new copy by virtue of the activation of the 
     machine.
       ``(d) Definitions.--For purposes of this section--
       ``(1) the `maintenance' of a machine is the servicing of 
     the machine in order to make it work in accordance with its 
     original specifications and any changes to those 
     specifications authorized for that machine; and
       ``(2) the `repair' of a machine is the restoring of the 
     machine to the state of working in accordance with its 
     original specifications and any changes to those 
     specifications authorized for that machine.''.
                   TITLE IV--MISCELLANEOUS PROVISIONS
   Subtitle A--Establishment of the Under Secretary of Commerce for 
                      Intellectual Property Policy

     SEC. 401. UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL 
                   PROPERTY POLICY.

       (a) Appointment.--There shall be within the Department of 
     Commerce an Under Secretary of Commerce for Intellectual 
     Property Policy, who shall be appointed by the President, by 
     and with the advice and consent of the Senate, at level II of 
     the Executive Schedule. On or after the effective date of 
     this subtitle, the President may designate an individual to 
     serve as the Acting Under Secretary until the date on which 
     an Under Secretary qualifies under this subsection.
       (b) Duties.--The Under Secretary of Commerce for 
     Intellectual Property Policy, under the direction of the 
     Secretary of Commerce, shall perform the following functions 
     with respect to intellectual property policy:
       (1) In coordination with the Under Secretary of Commerce 
     for International Trade, promote exports of goods and 
     services of the United States industries that rely on 
     intellectual property.
       (2) Advise the President, through the Secretary of 
     Commerce, on national and certain international issues 
     relating to intellectual property policy, including issues in 
     the areas of patents, trademarks, and copyrights.
       (3) Advise Federal departments and agencies on matters of 
     intellectual property protection in other countries.
       (4) Provide guidance, as appropriate, with respect to 
     proposals by agencies to assist foreign governments and 
     international intergovernmental organizations on matters of 
     intellectual property protection.
       (5) Conduct programs and studies related to the 
     effectiveness of intellectual property protection throughout 
     the world.
       (6) Advise the Secretary of Commerce on programs and 
     studies relating to intellectual property policy that are 
     conducted, or authorized to be conducted, cooperatively with 
     foreign patent and trademark offices and international 
     intergovernmental organizations.
       (7) In coordination with the Department of State, conduct 
     programs and studies cooperatively with foreign intellectual 
     property offices and international intergovernmental 
     organizations.
       (c) Deputy Under Secretaries.--To assist the Under 
     Secretary of Commerce for Intellectual Property Policy, the 
     Under Secretary shall appoint a Deputy Under Secretary for 
     Patent Policy and a Deputy Under Secretary for Trademark 
     Policy, as members of the Senior Executive Service in 
     accordance with the provisions of title 5, United States 
     Code. The Deputy Under Secretaries shall perform such duties 
     and functions as the Under Secretary shall prescribe.
       (d) Compensation.--Section 5313 of title 5, United States 
     Code, is amended by adding at the end the following: ``Under 
     Secretary of Commerce for Intellectual Property Policy.''
       (e) Funding.--Funds available to the Patent and Trademark 
     Office shall be made available for all expenses of the Office 
     of the Under Secretary of Commerce for Intellectual Property 
     Policy, subject to prior approval in appropriations Acts. 
     Amounts made available under this subsection shall not exceed 
     2 percent of the projected annual revenues of the Patent and 
     Trademark Office from fees for services and goods of that 
     Office. The Secretary of Commerce shall determine the budget 
     requirements of the Office of the Under Secretary for 
     Intellectual Property Policy.
       (f) Consultation.--In connection with the performance of 
     his or her duties under this section, the Under Secretary 
     shall, on appropriate matters, consult with the Register of 
     Copyrights.

     SEC. 402. RELATIONSHIP WITH EXISTING AUTHORITIES.

       (a) No Derogation.--Nothing in section 401 shall derogate 
     from the duties of the United States Trade Representative or 
     from the duties of the Secretary of State. In addition, 
     nothing in this subtitle shall derogate from the duties and 
     functions of the Register of Copyrights or otherwise alter 
     current authorities relating to copyright matters.
       (b) Clarification of Authority of the Copyright Office.--
     Section 701 of title 17, United States Code, is amended--
       (1) by redesignating subsections (b) through (e) as 
     subsections (c) through (f), respectively; and
       (2) by inserting after subsection (a) the following:
       ``(b) In addition to the functions and duties set out 
     elsewhere in this chapter, the Register of Copyrights shall 
     perform the following functions:
       ``(1) Advise Congress on national and international issues 
     relating to copyright, other matters arising under chapters 
     9, 12, 13, and 14 of this title, and related matters.
       ``(2) Provide information and assistance to Federal 
     departments and agencies and the Judiciary on national and 
     international issues relating to copyright, other matters 
     arising under chapters 9, 12, 13, and 14 of this title, and 
     related matters.
       ``(3) Participate in meetings of international 
     intergovernmental organizations and meetings with foreign 
     government officials relating to copyright, other matters 
     arising under chapters 9, 12, 13, and 14 of this title, and 
     related matters, including as a member of United States 
     delegations as authorized by the appropriate Executive Branch 
     authority.
       ``(4) Conduct studies and programs regarding copyright, 
     other matters arising under chapters 9, 12, 13, and 14 of 
     this title, and related matters, the administration of the 
     Copyright Office, or any function vested in the Copyright 
     Office by law, including educational programs conducted 
     cooperatively with foreign intellectual property offices and 
     international intergovernmental organizations.
       ``(5) Perform such other functions as Congress may direct, 
     or as may be appropriate in furtherance of the functions and 
     duties specifically set forth in this title.''
                     Subtitle B--Related Provisions

     SEC. 411. EPHEMERAL RECORDINGS.

       Section 112(a) of title 17, United States Code, is 
     amended--
       (1) by redesignating paragraphs (1), (2), and (3) as 
     subparagraphs (A), (B), and (C), respectively;
       (2) by inserting ``(1)'' after ``(a)''; and
       (3) by inserting after ``114(a),'' the following: ``or for 
     a transmitting organization that is a broadcast radio or 
     television station licensed as such by the Federal 
     Communications Commission that broadcasts a performance of a 
     sound recording in a digital format on a nonsubscription 
     basis,''; and

[[Page H7083]]

       (4) by adding at the end the following:
       ``(2) In a case in which a transmitting organization 
     entitled to make a copy or phonorecord under paragraph (1) in 
     connection with the transmission to the public of a 
     performance or display of a work is prevented from making 
     such copy or phonorecord by reason of the application by the 
     copyright owner of technical measures that prevent the 
     reproduction of the work, the copyright owner shall make 
     available to the transmitting organization the necessary 
     means for permitting the making of such copy or phonorecord 
     as permitted under that paragraph, if it is technologically 
     feasible and economically reasonable for the copyright owner 
     to do so. If the copyright owner fails to do so in a timely 
     manner in light of the transmitting organization's reasonable 
     business requirements, the transmitting organization shall 
     not be liable for a violation of section 1201(a)(1) of this 
     title for engaging in such activities as are necessary to 
     make such copies or phonorecords as permitted under paragraph 
     (1) of this subsection.''.

     SEC. 412. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE 
                   EDUCATION.

       (a) Recommendations by Register of Copyrights.--Not later 
     than 6 months after the date of the enactment of this Act, 
     the Register of Copyrights, after consultation with 
     representatives of copyright owners, nonprofit educational 
     institutions, and nonprofit libraries and archives, shall 
     submit to the Congress recommendations on how to promote 
     distance education through digital technologies, including 
     interactive digital networks, while maintaining an 
     appropriate balance between the rights of copyright owners 
     and the needs of users of copyrighted works. Such 
     recommendations shall include any legislation the Register of 
     Copyrights considers appropriate to achieve the objective 
     described in the preceding sentence.
       (b) Factors.--In formulating recommendations under 
     subsection (a), the Register of Copyrights shall consider--
       (1) the need for an exemption from exclusive rights of 
     copyright owners for distance education through digital 
     networks;
       (2) the categories of works to be included under any 
     distance education exemption;
       (3) the extent of appropriate quantitative limitations on 
     the portions of works that may be used under any distance 
     education exemption;
       (4) the parties who should be entitled to the benefits of 
     any distance education exemption;
       (5) the parties who should be designated as eligible 
     recipients of distance education materials under any distance 
     education exemption;
       (6) whether and what types of technological measures can or 
     should be employed to safeguard against unauthorized access 
     to, and use or retention of, copyrighted materials as a 
     condition of eligibility for any distance education 
     exemption, including, in light of developing technological 
     capabilities, the exemption set out in section 110(2) of 
     title 17, United States Code;
       (7) the extent to which the availability of licenses for 
     the use of copyrighted works in distance education through 
     interactive digital networks should be considered in 
     assessing eligibility for any distance education exemption; 
     and
       (8) such other issues relating to distance education 
     through interactive digital networks that the Register 
     considers appropriate.

     SEC. 413. EXEMPTION FOR LIBRARIES AND ARCHIVES.

       Section 108 of title 17, United States Code, is amended--
       (1) in subsection (a)--
       (A) by striking ``Notwithstanding'' and inserting ``Except 
     as otherwise provided in this title and notwithstanding'';
       (B) by inserting after ``no more than one copy or 
     phonorecord of a work'' the following: ``, except as provided 
     in subsections (b) and (c)''; and
       (C) in paragraph (3) by inserting after ``copyright'' the 
     following: ``that appears on the copy or phonorecord that is 
     reproduced under the provisions of this section, or includes 
     a legend stating that the work may be protected by copyright 
     if no such notice can be found on the copy or phonorecord 
     that is reproduced under the provisions of this section'';
       (2) in subsection (b)--
       (A) by striking ``a copy or phonorecord'' and inserting 
     ``three copies or phonorecords'';
       (B) by striking ``in facsimile form''; and
       (C) by striking ``if the copy or phonorecord reproduced is 
     currently in the collections of the library or archives.'' 
     and inserting ``if--
       ``(1) the copy or phonorecord reproduced is currently in 
     the collections of the library or archives; and
       ``(2) any such copy or phonorecord that is reproduced in 
     digital format is not otherwise distributed in that format 
     and is not made available to the public in that format 
     outside the premises of the library or archives.''; and
       (3) in subsection (c)--
       (A) by striking ``a copy or phonorecord'' and inserting 
     ``three copies or phonorecords'';
       (B) by striking ``in facsimile form'';
       (C) by inserting ``or if the existing format in which the 
     work is stored has become obsolete,'' after ``stolen,''; and
       (D) by striking ``if the library or archives has, after a 
     reasonable effort, determined that an unused replacement 
     cannot be obtained at a fair price.'' and inserting ``if--
       ``(1) the library or archives has, after a reasonable 
     effort, determined that an unused replacement cannot be 
     obtained at a fair price; and
       ``(2) any such copy or phonorecord that is reproduced in 
     digital format is not made available to the public in that 
     format outside the premises of the library or archives in 
     lawful possession of such copy.''; and
       (E) by adding at the end the following:

     ``For purposes of this subsection, a format shall be 
     considered obsolete if the machine or device necessary to 
     render perceptible a work stored in that format is no longer 
     manufactured or is no longer reasonably available in the 
     commercial marketplace.''.

     SEC. 414. FAIR USE.

       Section 107 of title 17, United States Code, is amended in 
     the first sentence by striking ``, including such use'' and 
     all that follows through ``section,''.

     SEC. 415. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS; 
                   EPHEMERAL RECORDINGS.

       (a) Scope of Exclusive Rights in Sound Recordings.--Section 
     114 of title 17, United States Code, is amended as follows:
       (1) Subsection (d) is amended--
       (A) by striking subparagraph (A) and inserting the 
     following:
       ``(A) a nonsubscription broadcast transmission;''; and
       (B) by amending paragraph (2) to read as follows:
       ``(2) Statutory Licensing of Certain Transmissions.--The 
     performance of a sound recording publicly by means of a 
     subscription digital audio transmission not exempt under 
     paragraph (1) or an eligible nonsubscription digital audio 
     transmission shall be subject to statutory licensing, in 
     accordance with subsection (f) if--
       ``(A) in the case of a subscription transmission not exempt 
     under paragraph (1) or an eligible nonsubscription 
     transmission--
       ``(i) the transmission is not part of an interactive 
     service;
       ``(ii) except in the case of a transmission to a business 
     establishment, the transmitting entity does not automatically 
     and intentionally cause any device receiving the transmission 
     to switch from one program channel to another; and
       ``(iii) except as provided in section 1002(e), the 
     transmission of the sound recording is accompanied by the 
     information encoded in that sound recording, if any, by or 
     under the authority of the copyright owner of that sound 
     recording, that identifies the title of the sound recording, 
     the featured recording artist who performs on the sound 
     recording, and related information, including information 
     concerning the underlying musical work and its writer;
       ``(B) in the case of a subscription transmission not exempt 
     under paragraph (1) by a preexisting subscription service in 
     the same transmission medium used by such service on July 31, 
     1998--
       ``(i) the transmission does not exceed the sound recording 
     performance complement;
       ``(ii) the transmitting entity does not cause to be 
     published by means of an advance program schedule or prior 
     announcement the titles of the specific sound recordings or 
     phonorecords embodying such sound recordings to be 
     transmitted; and
       ``(C) in the case of an eligible nonsubscription 
     transmission or a subscription transmission not exempt under 
     paragraph (1) by a new subscription service or by a 
     preexisting subscription service other than in the same 
     transmission medium used by such service on July 31, 1998--
       ``(i) the transmission does not exceed the sound recording 
     performance complement, except that this requirement shall 
     not apply in the case of a retransmission of a broadcast 
     transmission if the retransmission is made by a transmitting 
     entity that does not have the right or ability to control the 
     programming of the broadcast station making the broadcast 
     transmission, unless the broadcast station makes broadcast 
     transmissions--

       ``(I) in digital format that regularly exceed the sound 
     recording performance complement; or
       ``(II) in analog format, a substantial portion of which, on 
     a weekly basis, exceed the sound recording performance 
     complement;

     Provided, however, That the sound recording copyright owner 
     or its representative has notified the transmitting entity in 
     writing that broadcast transmissions of the copyright owner's 
     sound recordings exceed the sound recording complement as 
     provided in this clause;
       ``(ii) the transmitting entity does not cause to be 
     published, or induce or facilitate the publication, by means 
     of an advance program schedule or prior announcement, the 
     titles of the specific sound recordings to be transmitted, 
     the phonorecords embodying such sound recordings, or, other 
     than for illustrative purposes, the names of the featured 
     recording artists, except that this clause does not 
     disqualify a transmitting entity that makes a prior 
     announcement that a particular artist will be featured within 
     an unspecified future time period and, in any 1-hour period, 
     no more than 3 such announcements are made with respect to no 
     more than 2 artists in each announcement;
       ``(iii) the transmission is not part of--

       ``(I) an archived program of less than 5 hours duration;
       ``(II) an archived program of greater than 5 hours duration 
     that is made available for a period exceeding 2 weeks;

[[Page H7084]]

       ``(III) a continuous program which is of less than 3 hours 
     duration; or
       ``(IV) a program, other than an archived or continuous 
     program, that is transmitted at a scheduled time more than 3 
     additional times in a 2-week period following the first 
     transmission of the program and for an additional 2-week 
     period more than 1 month following the end of the first such 
     2-week period;

       ``(iv) the transmitting entity does not knowingly perform 
     the sound recording in a manner that is likely to cause 
     confusion, to cause mistake, or to deceive, as to the 
     affiliation, connection, or association of the copyright 
     owner or featured recording artist with the transmitting 
     entity or a particular product or service advertised by the 
     transmitting entity, or as to the origin, sponsorship, or 
     approval by the copyright owner or featured recording artist 
     of the activities of the transmitting entity other than the 
     performance of the sound recording itself;
       ``(v) the transmitting entity cooperates to prevent, to the 
     extent feasible without imposing substantial costs or 
     burdens, a transmission recipient or any other person or 
     entity from automatically scanning the transmitting entity's 
     transmissions together with transmissions by other 
     transmitting entities to select a particular sound recording 
     to be transmitted to the transmission recipient;
       ``(vi) the transmitting entity takes reasonable steps to 
     ensure, to the extent within its control, that the 
     transmission recipient cannot make a phonorecord in a digital 
     format of the transmission, and the transmitting entity takes 
     no affirmative steps to cause or induce the making of a 
     phonorecord by the transmission recipient;
       ``(vii) phonorecords of the sound recording have been 
     distributed to the public in the United States under the 
     authority of the copyright owner or the copyright owner 
     authorizes the transmitting entity to transmit the sound 
     recording, and the transmitting entity makes the transmission 
     from a phonorecord lawfully made under this title;
       ``(viii) the transmitting entity accommodates and does not 
     interfere with the transmission of technical measures that 
     are widely used by sound recording copyright owners to 
     identify or protect copyrighted works, and that are 
     technically feasible of being transmitted by the transmitting 
     entity without imposing substantial costs on the transmitting 
     entity or resulting in perceptible aural or visual 
     degradation of the digital signal; and
       ``(ix) in the case of an eligible nonsubscription 
     transmission, the transmitting entity identifies the sound 
     recording during, but not before, the time it is performed, 
     including the title of the sound recording, the title of the 
     phonorecord embodying such sound recording, if any, and the 
     featured recording artist in a manner to permit it to be 
     perceived by the transmission recipient, except that the 
     obligation in this clause shall not take effect until 1 year 
     after the date of the enactment of the Digital Millennium 
     Copyright Act.''.
       (2) Subsection (f) is amended to read as follows:
       (A) in paragraph (1)--
       (i) in the first sentence--

       (I) by striking ``(1) No'' and inserting ``(1)(A) No'';
       (II) by striking ``the activities'' and inserting 
     ``subscription transmissions by preexisting subscription 
     services''; and
       (III) by striking ``2000'' and inserting ``2001''; and

       (ii) by amending the third sentence to read as follows: 
     ``Any copyright owners of sound recordings or any preexisting 
     subscription services may submit to the Librarian of Congress 
     licenses covering such subscriptions transmissions with 
     respect to such sound recordings.''; and
       (B) by striking paragraphs (2), (3), (4), and (5) and 
     inserting the following:
       ``(B) In the absence of license agreements negotiated under 
     subparagraph (A), during the 60-day period commencing 6 
     months after publication of the notice specified in 
     subparagraph (A), and upon the filing of a petition in 
     accordance with section 803(a)(1), the Librarian of Congress 
     shall, pursuant to chapter 8, convene a copyright arbitration 
     royalty panel to determine and publish in the Federal 
     Register a schedule of rates and terms which, subject to 
     paragraph (3), shall be binding on all copyright owners of 
     sound recordings and preexisting subscription services. In 
     establishing rates and terms for preexisting subscription 
     services, in addition to the objectives set forth in section 
     801(b)(1), the copyright arbitration royalty panel may 
     consider the rates and terms for comparable types of 
     subscription digital audio transmission services and 
     comparable circumstances under voluntary license agreements 
     negotiated as provided in subparagraph (A).
       ``(C)(i) Publication of a notice of the initiation of 
     voluntary negotiation proceedings as specified in 
     subparagraph (A) shall be repeated, in accordance with 
     regulations that the Librarian of Congress shall prescribe--
       ``(I) no later than 30 days after a petition is filed by 
     any copyright owners of sound recordings or any preexisting 
     subscription services indicating that a new type of 
     subscription digital audio transmission service on which 
     sound recordings are performed is or is about to become 
     operational; and
       ``(II) in the first week of January, 2001, and at 5-year 
     intervals thereafter.
       ``(ii) The procedures specified in subparagraph (B) shall 
     be repeated, in accordance with regulations that the 
     Librarian of Congress shall prescribe, upon filing of a 
     petition in accordance with section 803(a)(1) during a 60-day 
     period commencing--
       ``(I) 6 months after publication of a notice of the 
     initiation of voluntary negotiation proceedings under 
     subparagraph (A) pursuant to a petition under clause (i)(I) 
     of this subparagraph; or
       ``(II) on July 1, 2001, and at 5-year intervals thereafter.
       ``(iii) The procedures specified in subparagraph (B) shall 
     be concluded in accordance with section 802.
       ``(2)(A) No later than 30 days after the date of the 
     enactment of the Digital Millennium Copyright Act, the 
     Librarian of Congress shall cause notice to be published in 
     the Federal Register of the initiation of voluntary 
     negotiation proceedings for the purpose of determining 
     reasonable terms and rates of royalty payments for eligible 
     nonsubscription transmissions and transmissions by new 
     subscription services specified by subsection (d)(2) during 
     the period beginning on the date of the enactment of such Act 
     and ending on December 31, 2000, or such other date as the 
     parties may agree. Such rates and terms shall distinguish 
     among the different types of eligible nonsubscription 
     transmission services then in operation and shall include a 
     minimum fee for each such type of service. Any copyright 
     owners of sound recordings or any entities performing sound 
     recordings affected by this section may submit to the 
     Librarian of Congress licenses covering such eligible 
     nonsubscription transmissions with respect to such sound 
     recordings. The parties to each negotiation proceeding shall 
     bear their own costs.
       ``(B) In the absence of license agreements negotiated under 
     subparagraph (A), during the 60-day period commencing 6 
     months after publication of the notice specified in 
     subparagraph (A), and upon the filing of a petition in 
     accordance with section 803(a)(1), the Librarian of Congress 
     shall, pursuant to chapter 8, convene a copyright arbitration 
     royalty panel to determine and publish in the Federal 
     Register a schedule of rates and terms which, subject to 
     paragraph (3), shall be binding on all copyright owners of 
     sound recordings and entities performing sound recordings 
     during the period beginning on the date of the enactment of 
     the Digital Millennium Copyright Act and ending on December 
     31, 2000, or such other date as the parties may agree. Such 
     rates and terms shall distinguish among the different types 
     of eligible nonsubscription, transmission services then in 
     operation and shall include a minimum fee for each such type 
     of service, such differences to be based on criteria, 
     including, but not limited to, the quantity and nature of the 
     use of sound recordings and the degree to which use of the 
     service may substitute for or may promote the purchase of 
     phonorecords by consumers. In establishing rates and terms 
     for transmissions by eligible nonsubscription services and 
     new subscription services, the copyright arbitration royalty 
     panel shall establish rates and terms that most clearly 
     represent the rates and terms that would have been negotiated 
     in the marketplace between a willing buyer and a willing 
     seller. In determining such rates and terms, the copyright 
     arbitration royalty panel shall base its decision on 
     economic, competitive and programming information presented 
     by the parties, including--
       ``(i) whether use of the service may substitute for or may 
     promote the sales of phonorecords or otherwise may interfere 
     with or may enhance the sound recording copyright owner's 
     other streams of revenue from its sound recordings; and
       ``(ii) the relative roles of the copyright owner and the 
     copyright user in the copyrighted work and the service made 
     available to the public with respect to relative creative 
     contribution, technological contribution, capital investment, 
     cost, and risk.
       ``(C)(i) Publication of a notice of the initiation of 
     voluntary negotiation proceedings as specified in 
     subparagraph (A) shall be repeated in accordance with 
     regulations that the Librarian of Congress shall prescribe--
       ``(I) no later than 30 days after a petition if filed by 
     any copyright owners of sound recordings or any eligible 
     nonsubscription service or new subscription service 
     indicating that a new type of eligible nonsubscription 
     service or new subscription service on which sound recordings 
     are performed is or is about to become operational; and
       ``(II) in the first week of January 2000, and at 2-year 
     intervals thereafter, except to the extent that different 
     years for the repeating of such proceedings may be determined 
     in accordance with subparagraph (A).
       ``(ii) The procedures specified in subparagraph (B) shall 
     be repeated, in accordance with regulations that the 
     Librarian of Congress shall prescribe, upon filing of a 
     petition in accordance with section 803(a)(1) during a 60-day 
     period commencing--
       ``(I) 6 months after publication of a notice of the 
     initiation of voluntary negotiation proceedings under 
     subparagraph (A) pursuant to a petition under clause (i)(I); 
     or
       ``(II) on July 1, 2000, and at 2-year intervals thereafter, 
     except to the extent that different years for the repeating 
     of such proceedings may be determined in accordance with 
     subparagraph (A).
       ``(iii) The procedures specified in subparagraph (B) shall 
     be concluded in accordance with section 802.
       ``(3) License agreements voluntarily negotiated at any time 
     between 1 or more copyright owners of sound recordings and 1 
     or more entities performing sound recordings

[[Page H7085]]

     shall be given effect in lieu of any determination by a 
     copyright arbitration royalty panel or decision by the 
     Librarian of Congress.
       ``(4)(A) The Librarian of Congress shall also establish 
     requirements by which copyright owners may receive reasonable 
     notice of the use of their sound recordings under this 
     section, and under which records of such use shall be kept 
     and made available by entities performing sound recordings.
       ``(B) Any person who wishes to perform a sound recording 
     publicly by means of a transmission eligible for statutory 
     licensing under this subsection may do so without infringing 
     the exclusive right of the copyright owner of the sound 
     recording--
       ``(i) by complying with such notice requirements as the 
     Librarian of Congress shall prescribe by regulation and by 
     paying royalty fees in accordance with this subsection; or
       ``(ii) if such royalty fees have not been set, by agreeing 
     to pay such royalty fees as shall be determined in accordance 
     with this subsection.
       ``(C) Any royalty payments in arrears shall be made on or 
     before the twentieth day of the month next succeeding the 
     month in which the royalty fees are set.''.
       (3) Subsection (g) is amended--
       (A) in the subsection heading by striking ``Subscription'';
       (B) in paragraph (1) in the matter preceding subparagraph 
     (A), by striking ``subscription transmission licensed'' and 
     inserting ``transmission licensed under a statutory 
     license'';
       (C) in subparagraphs (A) and (B) by striking 
     ``subscription''; and
       (D) in paragraph (2) by striking ``subscription''.
       (4) Subsection (j) is amended--
       (A) by redesignating paragraphs (2), (3), (5), (6), (7), 
     and (8) as paragraphs (3), (5), (9), (11), (12), and (13), 
     respectively;
       (B) by inserting after paragraph (1) the following:
       ``(2) An `archived program' is a prerecorded program that 
     is available repeatedly on demand and that is performed in 
     the same predetermined order from the beginning.'';
       (C) by inserting after paragraph (3), as so redesignated, 
     the following:
       ``(4) A `continuous program' is a prerecorded program that 
     is continuously performed in the same predetermined order and 
     the point in the program at which it is accessed is beyond 
     the control of the transmission recipient.'';
       (D) by inserting after paragraph (5), as so redesignated, 
     the following:
       ``(6) An `eligible nonsubscription transmission' is a 
     noninteractive, nonsubscription transmission made as part of 
     a service that provides audio programming consisting, in 
     whole or in part, of performances of sound recordings, 
     including retransmissions of broadcast transmissions, if the 
     primary purpose of the service is to provide to the public 
     such audio or other entertainment programming, and the 
     primary purpose of the service is not to sell, advertise, or 
     promote particular products or services other than sound 
     recordings, live concerts, or other music-related events.
       ``(7) An `interactive service' is one that enables a member 
     of the public to receive a transmission of a program 
     specially created for the recipient, or on request, a 
     transmission of a particular sound recording, whether or not 
     as part of a program, which is selected by or on behalf of 
     the recipient. The ability of individuals to request that 
     particular sound recordings be performed for reception by the 
     public at large does not make a service interactive, if the 
     programming on each channel of the service does not 
     substantially consist of sound recordings that are performed 
     within 1 hour of the request or at a time designated by 
     either the transmitting entity or the individual making such 
     request. If an entity offers both interactive and 
     noninteractive services (either concurrently or at different 
     times), the noninteractive component shall not be treated as 
     part of an interactive service.
       ``(8) A `new subscription service' is a service that 
     performs sound recordings by means of subscription digital 
     audio transmissions and that is not a preexisting 
     subscription service.'';
       (E) by inserting after paragraph (9), as so redesignated, 
     the following:
       ``(10) A `preexisting subscription service' is a service 
     that performs sound recordings by means of noninteractive 
     audio-only subscription digital audio transmissions, which 
     was in existence and was making such transmission to the 
     public for a fee on or before July 31, 1998.''; and
       (F) by adding at the end the following:
       ``(14) A `transmission' is either an initial transmission 
     or a retransmission.''.
       (b) Ephemeral Recordings.--Section 112 of title 17, United 
     States Code, is amended by adding at the end the following:
       ``(f) Statutory License.--(1) An ephemeral recording of a 
     sound recording by a transmitting organization entitled to 
     transmit to the public a performance of that sound recording 
     by means of a digital audio transmission under a statutory 
     license in accordance with section 114(f) or an exemption 
     provided in section 114(d)(1)(B) or (C) is subject to 
     statutory licensing under the conditions specified by this 
     subsection.
       ``(2) A statutory license under this subsection grants a 
     transmitting organization entitled to transmit to the public 
     a performance of a sound recording by means of a digital 
     audio transmission under a statutory license in accordance 
     with section 114(f) or an exemption provided in section 
     114(d)(1)(B) or (C) the privilege of making no more than 1 
     phonorecord of the sound recording (unless the terms and 
     conditions of the statutory license allow for more), if--
       ``(A) the phonorecord is retained and used solely by the 
     transmitting organization that made it, and no further 
     phonorecords are reproduced from it; and
       ``(B) the phonorecord is used solely for the transmitting 
     organization's own transmissions in the United States under a 
     statutory license in accordance with section 114(f) or an 
     exemption provided in section 114(d)(1)(B) or (C);
       ``(C) unless preserved exclusively for purposes of archival 
     preservation, the phonorecord is destroyed within 6 months 
     from the date the sound recording was first transmitted to 
     the public using the phonorecord; and
       ``(D) phonorecords of the sound recording have been 
     distributed to the public in the United States under the 
     authority of the copyright owner or the copyright owner 
     authorizes the transmitting entity to transmit the sound 
     recording, and the transmitting entity makes the transmission 
     from a phonorecord lawfully made and acquired under this 
     title.
       ``(3) Notwithstanding any provision of the antitrust laws, 
     any copyright owners of sound recordings and any transmitting 
     organizations entitled to obtain a statutory license under 
     this subsection may negotiate and agree upon royalty rates 
     and license terms and conditions for ephemeral recordings of 
     such sound recordings and the proportionate division of fees 
     paid among copyright owners, and may designate common agents 
     to negotiate, agree to, pay, or receive such royalty 
     payments.
       ``(4) No later than 30 days after the date of the enactment 
     of the Digital Millennium Copyright Act, the Librarian of 
     Congress shall cause notice to be published in the Federal 
     Register of the initiation of voluntary negotiation 
     proceedings for the purpose of determining reasonable terms 
     and rates of royalty payments for the activities specified by 
     paragraph (2) of this subsection during the period beginning 
     on the date of the enactment of such Act and ending on 
     December 31, 2000, or such other date as the parties may 
     agree. Such rates shall include a minimum fee for each type 
     of service. Any copyright owners of sound recordings or any 
     transmitting organizations entitled to obtain a statutory 
     license under this subsection may submit to the Librarian of 
     Congress licenses covering such activities with respect to 
     such sound recordings. The parties to each negotiation 
     proceeding shall bear their own costs.
       ``(5) In the absence of license agreements negotiated under 
     paragraph (3), during the 60-day period commencing 6 months 
     after publication of the notice specified in paragraph (4), 
     and upon the filing of a petition in accordance with section 
     803(a)(1), the Librarian of Congress shall, pursuant to 
     chapter 8, convene a copyright arbitration royalty panel to 
     determine and publish in the Federal Register a schedule of 
     reasonable rates and terms which, subject to paragraph (6), 
     shall be binding on all copyright owners of sound recordings 
     and transmitting organizations entitled to obtain a statutory 
     license under this subsection during the period beginning on 
     the date of the enactment of the Digital Millennium Copyright 
     Act and ending on December 31, 2000, or such other date as 
     the parties may agree. Such rates shall include a minimum fee 
     for each type of service. The copyright arbitration royalty 
     panel shall establish rates that most clearly represent the 
     fees that would have been negotiated in the marketplace 
     between a willing buyer and a willing seller. In determining 
     such rates and terms, the copyright arbitration royalty panel 
     shall base its decision on economic, competitive, and 
     programming information presented by the parties, including--
       ``(A) whether use of the service may substitute for or may 
     promote the sales of phonorecords or otherwise interferes 
     with or enhances the copyright owner's traditional streams of 
     revenue;
       ``(B) the relative rules of the copyright owner and the 
     copyright user in the copyrighted work and the service made 
     available to the public with respect to relative creative 
     contribution, technological contribution, capital investment, 
     cost, and risk.

     In establishing such rates and terms, the copyright 
     arbitration royalty panel may consider the rates and terms 
     under voluntary license agreements negotiated as provided in 
     paragraphs (3) and (4). The Librarian of Congress shall also 
     establish requirements by which copyright owners may receive 
     reasonable notice of the use of their sound recordings under 
     this section, and under which records of such use shall be 
     kept and made available by transmitting organizations 
     entitled to obtain a statutory license under this subsection.
       ``(6) License agreements voluntarily negotiated at any time 
     between 1 or more copyright owners of sound recordings and 1 
     or more transmitting organizations entitled to obtain a 
     statutory license under this subsection shall be given effect 
     in lieu of any determination by a copyright arbitration 
     royalty panel or decision by the Librarian of Congress.
       ``(7) Publication of a notice of the initiation of 
     voluntary negotiation proceedings as specified in paragraph 
     (4) shall be repeated, in accordance with regulations that 
     the Librarian of Congress shall prescribe, in

[[Page H7086]]

     the first week of January 2000, and at 2-year intervals 
     thereafter, except to the extent that different years for the 
     repeating of such proceedings may be determined in accordance 
     with paragraph (4). The procedures specified in paragraph (5) 
     shall be repeated, in accordance with regulations that the 
     Librarian of Congress shall prescribe, upon filing of a 
     petition in accordance with section 803(a)(1) during a 60-day 
     period commencing on July 1, 2000, and at 2-year intervals 
     thereafter, except to the extent that different years for the 
     repeating of such proceedings may be determined in accordance 
     with paragraph (4). The procedures specified in paragraph (5) 
     shall be concluded in accordance with section 802.
       ``(8)(A) Any person who wishes to make an ephemeral 
     recording of a sound recording under a statutory license in 
     accordance with this subsection may do so without infringing 
     the exclusive right of the copyright owner of the sound 
     recording under section 106(1)--
       ``(i) by complying with such notice requirements as the 
     Librarian of Congress shall prescribe by regulation and by 
     paying royalty fees in accordance with this subsection; or
       ``(ii) if such royalty fees have not been set, by agreeing 
     to pay such royalty fees as shall be determined in accordance 
     with this subsection.
       ``(B) Any royalty payments in arrears shall be made on or 
     before the 20th day of the month next succeeding the month in 
     which the royalty fees are set.
       ``(9) If a transmitting organization entitled to make a 
     phonorecord under this subsection is prevented from making 
     such phonorecord by reason of the application by the 
     copyright owner of technical measures that prevent the 
     reproduction of the sound recording, the copyright owner 
     shall make available to the transmitting organization the 
     necessary means for permitting the making of such phonorecord 
     within the meaning of this subsection, if it is 
     technologically feasible and economically reasonable for the 
     copyright owner to do so. If the copyright owner fails to do 
     so in a timely manner in light of the transmitting 
     organization's reasonable business requirements, the 
     transmitting organization shall not be liable for a violation 
     of section 1201(a)(1) of this title for engaging in such 
     activities as are necessary to make such phonorecords as 
     permitted under this subsection.''.

     SEC. 416. ASSUMPTION OF CONTRACTUAL OBLIGATIONS RELATED TO 
                   TRANSFERS OF RIGHTS IN MOTION PICTURES.

       (a) In General.--Part VI of title 28, United States Code, 
     is amended by adding at the end the following new chapter:

      ``CHAPTER 180--ASSUMPTION OF CERTAIN CONTRACTUAL OBLIGATIONS

``Sec.
``4001. Assumption of contractual obligations related to transfers of 
              rights in motion pictures.

     ``Sec. 4001. Assumption of contractual obligations related to 
       transfers of rights in motion pictures

       ``(a) Assumption of Obligations.--In the case of a transfer 
     of copyright ownership in a motion picture (as defined in 
     section 101 of title 17) that is produced subject to 1 or 
     more collective bargaining agreements negotiated under the 
     laws of the United States, if the transfer is executed on or 
     after the effective date of this chapter and is not limited 
     to public performance rights, the transfer instrument shall 
     be deemed to incorporate the assumption agreements applicable 
     to the copyright ownership being transferred that are 
     required by the applicable collective bargaining agreement, 
     and the transferee shall be subject to the obligations under 
     each such assumption agreement to make residual payments and 
     provide related notices, accruing after the effective date of 
     the transfer and applicable to the exploitation of the rights 
     transferred, and any remedies under each such assumption 
     agreement for breach of those obligations, as those 
     obligations and remedies are set forth in the applicable 
     collective bargaining agreement, if--
       ``(1) the transferee knows or has reason to know at the 
     time of the transfer that such collective bargaining 
     agreement was or will be applicable to the motion picture; or
       ``(2) in the event of a court order confirming an 
     arbitration award against the transferor under the collective 
     bargaining agreement, the transferor does not have the 
     financial ability to satisfy the award within 90 days after 
     the order is issued.
       ``(b) Failure To Notify.--If the transferor under 
     subsection (a) fails to notify the transferee under 
     subsection (a) of applicable collective bargaining 
     obligations before the execution of the transfer instrument, 
     and subsection (a) is made applicable to the transferee 
     solely by virtue of subsection (a)(2), the transferor shall 
     be liable to the transferee for any damages suffered by the 
     transferee as a result of the failure to notify.
       ``(c) Determination of Disputes and Claims.--Any dispute 
     concerning the application of subsection (a) and any claim 
     made under subsection (b) shall be determined by an action in 
     United States district court, and the court in its discretion 
     may allow the recovery of full costs by or against any party 
     and may also award a reasonable attorney's fee to the 
     prevailing party as part of the costs.''.
       (b) Conforming Amendment.--The table of chapters for part 
     VI of title 28, United States Code, is amended by adding at 
     the end the following:

``180. Assumption of Certain Contractual Obligations........4001''.....

    

     SEC. 417. FIRST SALE CLARIFICATION.

       Section 109(a) of title 17, United States Code, is amended 
     by striking the first sentence and inserting the following: 
     ``Notwithstanding the provisions of section 106(3), the owner 
     of a particular lawfully made copy or phonorecord that has 
     been distributed in the United States by the authority of the 
     copyright owner, or any person authorized by the owner of 
     that copy or phonorecord, is entitled, without the authority 
     of the copyright owner, to sell or otherwise dispose of the 
     possession of that copy or phonorecord.''.
           TITLE V--COLLECTIONS OF INFORMATION ANTIPIRACY ACT

     SEC. 501. SHORT TITLE.

       This title may be cited as the ``Collections of Information 
     Antipiracy Act''.

     SEC. 502. MISAPPROPRIATION OF COLLECTIONS OF INFORMATION.

       Title 17, United States Code, is amended by adding at the 
     end the following new chapter:

      ``CHAPTER 13--MISAPPROPRIATION OF COLLECTIONS OF INFORMATION

``Sec.
``1301. Definitions.
``1302. Prohibition against misappropriation.
``1303. Permitted acts.
``1304. Exclusions.
``1305. Relationship to other laws.
``1306. Civil remedies.
``1307. Criminal offenses and penalties.
``1308. Limitations on actions.

     ``Sec. 1301. Definitions

       ``As used in this chapter:
       ``(1) Collection of information.--The term `collection of 
     information' means information that has been collected and 
     has been organized for the purpose of bringing discrete items 
     of information together in one place or through one source so 
     that users may access them.
       ``(2) Information.--The term `information' means facts, 
     data, works of authorship, or any other intangible material 
     capable of being collected and organized in a systematic way.
       ``(3) Potential market.--The term `potential market' means 
     any market that a person claiming protection under section 
     1302 has current and demonstrable plans to exploit or that is 
     commonly exploited by persons offering similar products or 
     services incorporating collections of information.
       ``(4) Commerce.--The term `commerce' means all commerce 
     which may be lawfully regulated by the Congress.
       ``(5) Product or service.--A product or service 
     incorporating a collection of information does not include a 
     product or service incorporating a collection of information 
     gathered, organized, or maintained to address, route, 
     forward, transmit, or store digital online communications or 
     provide or receive access to connections for digital online 
     communications.

     ``Sec. 1302. Prohibition against misappropriation

       ``Any person who extracts, or uses in commerce, all or a 
     substantial part, measured either quantitatively or 
     qualitatively, of a collection of information gathered, 
     organized, or maintained by another person through the 
     investment of substantial monetary or other resources, so as 
     to cause harm to the actual or potential market of that other 
     person, or a successor in interest of that other person, for 
     a product or service that incorporates that collection of 
     information and is offered or intended to be offered for sale 
     or otherwise in commerce by that other person, or a successor 
     in interest of that person, shall be liable to that person or 
     successor in interest for the remedies set forth in section 
     1306.

     ``Sec. 1303. Permitted acts

       ``(a) Individual Items of Information and Other 
     Insubstantial Parts.--Nothing in this chapter shall prevent 
     the extraction or use of an individual item of information, 
     or other insubstantial part of a collection of information, 
     in itself. An individual item of information, including a 
     work of authorship, shall not itself be considered a 
     substantial part of a collection of information under section 
     1302. Nothing in this subsection shall permit the repeated or 
     systematic extraction or use of individual items or 
     insubstantial parts of a collection of information so as to 
     circumvent the prohibition contained in section 1302.
       ``(b) Gathering or Use of Information Obtained Through 
     Other Means.--Nothing in this chapter shall restrict any 
     person from independently gathering information or using 
     information obtained by means other than extracting it from a 
     collection of information gathered, organized, or maintained 
     by another person through the investment of substantial 
     monetary or other resources.
       ``(c) Use of Information for Verification.--Nothing in this 
     chapter shall restrict any person from extracting or using a 
     collection of information within any entity or organization, 
     for the sole purpose of verifying the accuracy of information 
     independently gathered, organized, or maintained by that 
     person. Under no circumstances shall the information so used 
     be extracted from the original collection and made available 
     to others in a manner that harms the actual or potential 
     market for the collection of information from which it is 
     extracted or used.
       ``(d) Nonprofit Educational, Scientific, or Research 
     Uses.--Notwithstanding section 1302, no person shall be 
     restricted from extracting or using information for nonprofit 
     educational, scientific, or research purposes in a manner 
     that does not harm directly the

[[Page H7087]]

     actual market for the product or service referred to in 
     section 1302.
       ``(e) News Reporting.--Nothing in this chapter shall 
     restrict any person from extracting or using information for 
     the sole purpose of news reporting, including news gathering, 
     dissemination, and comment, unless the information so 
     extracted or used is time sensitive and has been gathered by 
     a news reporting entity, and the extraction or use is part of 
     a consistent pattern engaged in for the purpose of direct 
     competition.
       ``(f) Transfer of Copy.--Nothing in this chapter shall 
     restrict the owner of a particular lawfully made copy of all 
     or part of a collection of information from selling or 
     otherwise disposing of the possession of that copy.

     ``Sec. 1304. Exclusions

       ``(a) Government Collections of Information.--
       ``(1) Exclusion.--Protection under this chapter shall not 
     extend to collections of information gathered, organized, or 
     maintained by or for a government entity, whether Federal, 
     State, or local, including any employee or agent of such 
     entity, or any person exclusively licensed by such entity, 
     within the scope of the employment, agency, or license. 
     Nothing in this subsection shall preclude protection under 
     this chapter for information gathered, organized, 
     or maintained by such an agent or licensee that is not 
     within the scope of such agency or license, or by a 
     Federal or State educational institution in the course of 
     engaging in education or scholarship.
       ``(2) Exception.--The exclusion under paragraph (1) does 
     not apply to any information required to be collected and 
     disseminated--
       ``(A) under the Securities Exchange Act of 1934 by a 
     national securities exchange, a registered securities 
     association, or a registered securities information 
     processor, subject to section 1305(g) of this title; or
       ``(B) under the Commodity Exchange Act by a contract 
     market, subject to section 1305(g) of this title.
       ``(b) Computer Programs.--
       ``(1) Protection not extended.--Subject to paragraph (2), 
     protection under this chapter shall not extend to computer 
     programs, including, but not limited to, any computer program 
     used in the manufacture, production, operation, or 
     maintenance of a collection of information, or any element of 
     a computer program necessary to its operation.
       ``(2) Incorporated collections of information.--A 
     collection of information that is otherwise subject to 
     protection under this chapter is not disqualified from such 
     protection solely because it is incorporated into a computer 
     program.

     ``Sec. 1305. Relationship to other laws

       ``(a) Other Rights Not Affected.--Subject to subsection 
     (b), nothing in this chapter shall affect rights, 
     limitations, or remedies concerning copyright, or any other 
     rights or obligations relating to information, including laws 
     with respect to patent, trademark, design rights, antitrust, 
     trade secrets, privacy, access to public documents, and the 
     law of contract.
       ``(b) Preemption of State Law.--On or after the effective 
     date of this chapter, all rights that are equivalent to the 
     rights specified in section 1302 with respect to the subject 
     matter of this chapter shall be governed exclusively by 
     Federal law, and no person is entitled to any equivalent 
     right in such subject matter under the common law or statutes 
     of any State. State laws with respect to trademark, design 
     rights, antitrust, trade secrets, privacy, access to public 
     documents, and the law of contract shall not be deemed to 
     provide equivalent rights for purposes of this subsection.
       ``(c) Relationship to Copyright.--Protection under this 
     chapter is independent of, and does not affect or enlarge the 
     scope, duration, ownership, or subsistence of, any copyright 
     protection or limitation, including, but not limited to, fair 
     use, in any work of authorship that is contained in or 
     consists in whole or part of a collection of information. 
     This chapter does not provide any greater protection to a 
     work of authorship contained in a collection of information, 
     other than a work that is itself a collection of information, 
     than is available to that work under any other chapter of 
     this title.
       ``(d) Antitrust.--Nothing in this chapter shall limit in 
     any way the constraints on the manner in which products and 
     services may be provided to the public that are imposed by 
     Federal and State antitrust laws, including those regarding 
     single suppliers of products and services.
       ``(e) Licensing.--Nothing in this chapter shall restrict 
     the rights of parties freely to enter into licenses or any 
     other contracts with respect to the use of collections of 
     information.
       ``(f) Communications Act of 1934.--Nothing in this chapter 
     shall affect the operation of the provisions of the 
     Communications Act of 1934 (47 U.S.C. 151 et seq.), or shall 
     restrict any person from extracting or using subscriber list 
     information, as such term is defined in section 222(f)(3) of 
     the Communications Act of 1934 (47 U.S.C. 222(f)(3)), for the 
     purpose of publishing telephone directories in any format.
       ``(g) Securities and Commodities Market Information.--
       ``(1) Federal agencies and acts.--Nothing in this Act shall 
     affect:
       ``(A) the operation of the provisions of the Securities 
     Exchange Act of 1934 (15 U.S.C. 78a et seq.) or the Commodity 
     Exchange Act (7 U.S.C. 1 et seq.);
       ``(B) the jurisdiction or authority of the Securities and 
     Exchange Commission and the Commodity Futures Trading 
     Commission; or
       ``(C) the functions and operations of self-regulatory 
     organizations and securities information processors under the 
     provisions of the Securities Exchange Act of 1934 and the 
     rules and regulations thereunder, including making market 
     information available pursuant to the provisions of that Act 
     and the rules and regulations promulgated thereunder.
       ``(2) Prohibition.--Notwithstanding any provision in 
     subsection (a), (b), (c), (d), or (f) of section 1303, 
     nothing in this chapter shall permit the extraction, use, 
     resale, or other disposition of real-time market information 
     except as the Securities Exchange Act of 1934, the Commodity 
     Exchange Act, and the rules and regulations thereunder may 
     otherwise provide. In addition, nothing in subsection (e) of 
     section 1303 shall be construed to permit any person to 
     extract or use real-time market information in a manner that 
     constitutes a market substitute for a real-time market 
     information service (including the real-time systematic 
     updating of or display of a substantial part of market 
     information) provided on a real-time basis.
       ``(3) Definition.--As used in this subsection, the term 
     `market information' means information relating to quotations 
     and transactions that is collected, processed, distributed, 
     or published pursuant to the provisions of the Securities 
     Exchange Act of 1934 or by a contract market that is 
     designated by the Commodity Futures Trading Commission 
     pursuant to the Commodity Exchange Act and the rules and 
     regulations thereunder.

     ``Sec. 1306. Civil remedies

       ``(a) Civil Actions.--Any person who is injured by a 
     violation of section 1302 may bring a civil action for such a 
     violation in an appropriate United States district court 
     without regard to the amount in controversy, except that any 
     action against a State governmental entity may be brought in 
     any court that has jurisdiction over claims against such 
     entity.
       ``(b) Temporary and Permanent Injunctions.--Any court 
     having jurisdiction of a civil action under this section 
     shall have the power to grant temporary and permanent 
     injunctions, according to the principles of equity and upon 
     such terms as the court may deem reasonable, to prevent a 
     violation of section 1302. Any such injunction may be served 
     anywhere in the United States on the person enjoined, and may 
     be enforced by proceedings in contempt or otherwise by any 
     United States district court having jurisdiction over that 
     person.
       ``(c) Impoundment.--At any time while an action under this 
     section is pending, the court may order the impounding, on 
     such terms as it deems reasonable, of all copies of contents 
     of a collection of information extracted or used in violation 
     of section 1302, and of all masters, tapes, disks, diskettes, 
     or other articles by means of which such copies may be 
     reproduced. The court may, as part of a final judgment or 
     decree finding a violation of section 1302, order the 
     remedial modification or destruction of all copies of 
     contents of a collection of information extracted or used in 
     violation of section 1302, and of all masters, tapes, disks, 
     diskettes, or other articles by means of which such copies 
     may be reproduced.
       ``(d) Monetary Relief.--When a violation of section 1302 
     has been established in any civil action arising under this 
     section, the plaintiff shall be entitled to recover any 
     damages sustained by the plaintiff and defendant's profits 
     not taken into account in computing the damages sustained by 
     the plaintiff. The court shall assess such profits or damages 
     or cause the same to be assessed under its direction. In 
     assessing profits the plaintiff shall be required to prove 
     defendant's gross revenue only and the defendant shall be 
     required to prove all elements of cost or deduction claims. 
     In assessing damages the court may enter judgment, according 
     to the circumstances of the case, for any sum above the 
     amount found as actual damages, not exceeding three times 
     such amount. The court in its discretion may award reasonable 
     costs and attorney's fees to the prevailing party and shall 
     award such costs and fees where it determines that an action 
     was brought under this chapter in bad faith against a 
     nonprofit educational, scientific, or research institution, 
     library, or archives, or an employee or agent of such an 
     entity, acting within the scope of his or her employment.
       ``(e) Reduction or Remission of Monetary Relief for 
     Nonprofit Educational, Scientific, or Research 
     Institutions.--The court shall reduce or remit entirely 
     monetary relief under subsection (d) in any case in which a 
     defendant believed and had reasonable grounds for believing 
     that his or her conduct was permissible under this chapter, 
     if the defendant was an employee or agent of a nonprofit 
     educational, scientific, or research institution, library, or 
     archives acting within the scope of his or her employment.
       ``(f) Actions Against United States Government.--
     Subsections (b) and (c) shall not apply to any action against 
     the United States Government.
       ``(g) Relief Against State Entities.--The relief provided 
     under this section shall be available against a State 
     governmental entity to the extent permitted by applicable 
     law.

     ``Sec. 1307. Criminal offenses and penalties

       ``(a) Violation.--

[[Page H7088]]

       ``(1) In general.--Any person who violates section 1302 
     willfully, and--
       ``(A) does so for direct or indirect commercial advantage 
     or financial gain; or
       ``(B) causes loss or damage aggregating $10,000 or more in 
     any 1-year period to the person who gathered, organized, or 
     maintained the information concerned,

     shall be punished as provided in subsection (b).
       ``(2) Inapplicability.--This section shall not apply to an 
     employee or agent of a nonprofit educational, scientific, or 
     research institution, library, or archives acting within the 
     scope of his or her employment.
       ``(b) Penalties.--An offense under subsection (a) shall be 
     punishable by a fine of not more than $250,000 or 
     imprisonment for not more than 5 years, or both. A second or 
     subsequent offense under subsection (a) shall be punishable 
     by a fine of not more than $500,000 or imprisonment for not 
     more than 10 years, or both.

     ``Sec. 1308. Limitations on actions

       ``(a) Criminal Proceedings.--No criminal proceeding shall 
     be maintained under this chapter unless it is commenced 
     within three years after the cause of action arises.
       ``(b) Civil Actions.--No civil action shall be maintained 
     under this chapter unless it is commenced within three years 
     after the cause of action arises or claim accrues.
       ``(c) Additional Limitation.--No criminal or civil action 
     shall be maintained under this chapter for the extraction or 
     use of all or a substantial part of a collection of 
     information that occurs more than 15 years after the 
     investment of resources that qualified the portion of the 
     collection of information for protection under this chapter 
     that is extracted or used.''.

     SEC. 503. CONFORMING AMENDMENT.

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

``13. Misappropriation of Collections of Information........1301''.....

     SEC. 504. CONFORMING AMENDMENTS TO TITLE 28, UNITED STATES 
                   CODE.

       (a) District Court Jurisdiction.--Section 1338 of title 28, 
     United States Code, is amended--
       (1) in the section heading by inserting ``misappropriations 
     of collections of information,'' after ``trade-marks,''; and
       (2) by adding at the end the following:
       ``(d) The district courts shall have original jurisdiction 
     of any civil action arising under chapter 13 of title 17, 
     relating to misappropriation of collections of information. 
     Such jurisdiction shall be exclusive of the courts of the 
     States, except that any action against a State governmental 
     entity may be brought in any court that has jurisdiction over 
     claims against such entity.''.
       (b) Conforming Amendment.--The item relating to section 
     1338 in the table of sections for chapter 85 of title 28, 
     United States Code, is amended by inserting 
     ``misappropriations of collections of information,'' after 
     ``trade-marks,''.
       (c) Court of Federal Claims Jurisdiction.--Section 1498(e) 
     of title 28, United States Code, is amended by inserting 
     ``and to protections afforded collections of information 
     under chapter 13 of title 17'' after ``chapter 9 of title 
     17''.

     SEC. 505. EFFECTIVE DATE.

       (a) In General.--This title and the amendments made by this 
     title shall take effect on the date of the enactment of this 
     Act, and shall apply to acts committed on or after that date.
       (b) Prior Acts Not Affected.--No person shall be liable 
     under chapter 13 of title 17, United States Code, as added by 
     section 502 of this Act, for the use of information lawfully 
     extracted from a collection of information prior to the 
     effective date of this Act, by that person or by that 
     person's predecessor in interest.
            TITLE VI--PROTECTION OF CERTAIN ORIGINAL DESIGNS

     SEC. 601. SHORT TITLE.

       This Act may be referred to as the ``Vessel Hull Design 
     Protection Act''.

     SEC. 602. PROTECTION OF CERTAIN ORIGINAL DESIGNS.

       Title 17, United States Code, is amended by adding at the 
     end the following new chapter:

              ``CHAPTER 14--PROTECTION OF ORIGINAL DESIGNS

``Sec.
``1401. Designs protected.
``1402. Designs not subject to protection.
``1403. Revisions, adaptations, and rearrangements.
``1404. Commencement of protection.
``1405. Term of protection.
``1406. Design notice.
``1407. Effect of omission of notice.
``1408. Exclusive rights.
``1409. Infringement.
``1410. Application for registration.
``1411. Benefit of earlier filing date in foreign country.
``1412. Oaths and acknowledgments.
``1413. Examination of application and issue or refusal of 
              registration.
``1414. Certification of registration.
``1415. Publication of announcements and indexes.
``1416. Fees.
``1417. Regulations.
``1418. Copies of records.
``1419. Correction of errors in certificates.
``1420. Ownership and transfer.
``1421. Remedy for infringement.
``1422. Injunctions.
``1423. Recovery for infringement.
``1424. Power of court over registration.
``1425. Liability for action on registration fraudulently obtained.
``1426. Penalty for false marking.
``1427. Penalty for false representation.
``1428. Enforcement by Treasury and Postal Service .
``1429. Relation to design patent law.
``1430. Common law and other rights unaffected.
``1431. Administrator; Office of the Administrator.
``1432. No retroactive effect.

     ``Sec. 1401. Designs protected

       ``(a) Designs Protected.--
       ``(1) In general.--The designer or other owner of an 
     original design of a useful article which makes the article 
     attractive or distinctive in appearance to the purchasing or 
     using public may secure the protection provided by this 
     chapter upon complying with and subject to this chapter.
       ``(2) Vessel hulls.--The design of a vessel hull, including 
     a plug or mold, is subject to protection under this chapter, 
     notwithstanding section 1402(4).
       ``(b) Definitions.--For the purpose of this chapter, the 
     following terms have the following meanings:
       ``(1) A design is `original' if it is the result of the 
     designer's creative endeavor that provides a distinguishable 
     variation over prior work pertaining to similar articles 
     which is more than merely trivial and has not been copied 
     from another source.
       ``(2) A `useful article' is a vessel hull, including a plug 
     or mold, which in normal use has an intrinsic utilitarian 
     function that is not merely to portray the appearance of the 
     article or to convey information. An article which normally 
     is part of a useful article shall be deemed to be a useful 
     article.
       ``(3) A `vessel' is a craft, especially one larger than a 
     rowboat, designed to navigate on water, but does not include 
     any such craft that exceeds 200 feet in length.
       ``(4) A `hull' is the frame or body of a vessel, including 
     the deck of a vessel, exclusive of masts, sails, yards, and 
     rigging.
       ``(5) A `plug' means a device or model used to make a mold 
     for the purpose of exact duplication, regardless of whether 
     the device or model has an intrinsic utilitarian function 
     that is not only to portray the appearance of the product or 
     to convey information.
       ``(6) A `mold' means a matrix or form in which a substance 
     for material is used, regardless of whether the matrix or 
     form has an intrinsic utilitarian function that is not only 
     to portray the appearance of the product or to convey 
     information.

     ``Sec. 1402. Designs not subject to protection

       ``Protection under this chapter shall not be available for 
     a design that is--
       ``(1) not original;
       ``(2) staple or commonplace, such as a standard geometric 
     figure, a familiar symbol, an emblem, or a motif, or another 
     shape, pattern, or configuration which has become standard, 
     common, prevalent, or ordinary;
       ``(3) different from a design excluded by paragraph (2) 
     only in insignificant details or in elements which are 
     variants commonly used in the relevant trades;
       ``(4) dictated solely by a utilitarian function of the 
     article that embodies it; or
       ``(5) embodied in a useful article that was made public by 
     the designer or owner in the United States or a foreign 
     country more than 1 year before the date of the application 
     for registration under this chapter.

     ``Sec. 1403. Revisions, adaptations, and rearrangements

       ``Protection for a design under this chapter shall be 
     available notwithstanding the employment in the design of 
     subject matter excluded from protection under section 1402 if 
     the design is a substantial revision, adaptation, or 
     rearrangement of such subject matter. Such protection shall 
     be independent of any subsisting protection in subject matter 
     employed in the design, and shall not be construed as 
     securing any right to subject matter excluded from protection 
     under this chapter or as extending any subsisting protection 
     under this chapter.

     ``Sec. 1404. Commencement of protection

       ``The protection provided for a design under this chapter 
     shall commence upon the earlier of the date of publication of 
     the registration under section 1413(a) or the date the design 
     is first made public as defined by section 1410(b).

     ``Sec. 1405. Term of protection

       ``(a) In General.--Subject to subsection (b), the 
     protection provided under this chapter for a design shall 
     continue for a term of 10 years beginning on the date of the 
     commencement of protection under section 1404.
       ``(b) Expiration.--All terms of protection provided in this 
     section shall run to the end of the calendar year in which 
     they would otherwise expire.
       ``(c) Termination of Rights.--Upon expiration or 
     termination of protection in a particular design under this 
     chapter, all rights under this chapter in the design shall 
     terminate, regardless of the number of different articles in 
     which the design may have been used during the term of its 
     protection.

     ``Sec. 1406. Design notice

       ``(a) Contents of Design Notice.--(1) Whenever any design 
     for which protection is sought under this chapter is made 
     public under section 1410(b), the owner of the design shall, 
     subject to the provisions of section 1407, mark it or have it 
     marked legibly with a design notice consisting of--

[[Page H7089]]

       ``(A) the words `Protected Design', the abbreviation 
     `Prot'd Des.', or the letter `D' with a circle, or the symbol 
     *D*;
       ``(B) the year of the date on which protection for the 
     design commenced; and
       ``(C) the name of the owner, an abbreviation by which the 
     name can be recognized, or a generally accepted alternative 
     designation of the owner.

     Any distinctive identification of the owner may be used for 
     purposes of subparagraph (C) if it has been recorded by the 
     Administrator before the design marked with such 
     identification is registered.
       ``(2) After registration, the registration number may be 
     used instead of the elements specified in subparagraphs (B) 
     and (C) of paragraph (1).
       ``(b) Location of Notice.--The design notice shall be so 
     located and applied as to give reasonable notice of design 
     protection while the useful article embodying the design is 
     passing through its normal channels of commerce.
       ``(c) Subsequent Removal of Notice.--When the owner of a 
     design has complied with the provisions of this section, 
     protection under this chapter shall not be affected by the 
     removal, destruction, or obliteration by others of the design 
     notice on an article.

     ``Sec. 1407. Effect of omission of notice

       ``(a) Actions With Notice.--Except as provided in 
     subsection (b), the omission of the notice prescribed in 
     section 1406 shall not cause loss of the protection under 
     this chapter or prevent recovery for infringement under this 
     chapter against any person who, after receiving written 
     notice of the design protection, begins an undertaking 
     leading to infringement under this chapter.
       ``(b) Actions Without Notice.--The omission of the notice 
     prescribed in section 1406 shall prevent any recovery under 
     section 1423 against a person who began an undertaking 
     leading to infringement under this chapter before receiving 
     written notice of the design protection. No injunction shall 
     be issued under this chapter with respect to such undertaking 
     unless the owner of the design reimburses that person for any 
     reasonable expenditure or contractual obligation in 
     connection with such undertaking that was incurred before 
     receiving written notice of the design protection, as the 
     court in its discretion directs. The burden of providing 
     written notice of design protection shall be on the owner of 
     the design.

     ``Sec. 1408. Exclusive rights

       ``The owner of a design protected under this chapter has 
     the exclusive right to--
       ``(1) make, have made, or import, for sale or for use in 
     trade, any useful article embodying that design; and
       ``(2) sell or distribute for sale or for use in trade any 
     useful article embodying that design.

     ``Sec. 1409. Infringement

       ``(a) Acts of Infringement.--Except as provided in 
     subjection (b), it shall be infringement of the exclusive 
     rights in a design protected under this chapter for any 
     person, without the consent of the owner of the design, 
     within the United States and during the term of such 
     protection, to--
       ``(1) make, have made, or import, for sale or for use in 
     trade, any infringing article as defined in subsection (e); 
     or
       ``(2) sell or distribute for sale or for use in trade any 
     such infringing article.
       ``(b) Acts of Sellers and Distributors.--A seller or 
     distributor of an infringing article who did not make or 
     import the article shall be deemed to have infringed on a 
     design protected under this chapter only if that person--
       ``(1) induced or acted in collusion with a manufacturer to 
     make, or an importer to import such article, except that 
     merely purchasing or giving an order to purchase such article 
     in the ordinary course of business shall not of itself 
     constitute such inducement or collusion; or
       ``(2) refused or failed, upon the request of the owner of 
     the design, to make a prompt and full disclosure of that 
     person's source of such article, and that person orders or 
     reorders such article after receiving notice by registered or 
     certified mail of the protection subsisting in the design.
       ``(c) Acts Without Knowledge.--It shall not be infringement 
     under this section to make, have made, import, sell, or 
     distribute, any article embodying a design which was created 
     without knowledge that a design was protected under this 
     chapter and was copied from such protected design.
       ``(d) Acts in Ordinary Course of Business.--A person who 
     incorporates into that person's product of manufacture an 
     infringing article acquired from others in the ordinary 
     course of business, or who, without knowledge of the 
     protected design embodied in an infringing article, makes or 
     processes the infringing article for the account of another 
     person in the ordinary course of business, shall not be 
     deemed to have infringed the rights in that design under this 
     chapter except under a condition contained in paragraph (1) 
     or (2) of subsection (b). Accepting an order or reorder from 
     the source of the infringing article shall be deemed ordering 
     or reordering within the meaning of subsection (b)(2).
       ``(e) Infringing Article Defined.--As used in this section, 
     an `infringing article' is any article the design of which 
     has been copied from a design protected under this chapter, 
     without the consent of the owner of the protected design. An 
     infringing article is not an illustration or picture of a 
     protected design in an advertisement, book, periodical, 
     newspaper, photograph, broadcast, motion picture, or similar 
     medium. A design shall not be deemed to have been copied from 
     a protected design if it is original and not substantially 
     similar in appearance to a protected design.
       ``(f) Establishing Originality.--The party to any action or 
     proceeding under this chapter who alleges rights under this 
     chapter in a design shall have the burden of establishing the 
     design's originality whenever the opposing party introduces 
     an earlier work which is identical to such design, or so 
     similar as to make prima facie showing that such design was 
     copied from such work.
       ``(g) Reproduction for Teaching or Analysis.--It is not an 
     infringement of the exclusive rights of a design owner for a 
     person to reproduce the design in a useful article or in any 
     other form solely for the purpose of teaching, analyzing, or 
     evaluating the appearance, concepts, or techniques embodied 
     in the design, or the function of the useful article 
     embodying the design.

     ``Sec. 1410. Application for registration

       ``(a) Time Limit for Application for Registration.--
     Protection under this chapter shall be lost if application 
     for registration of the design is not made within two years 
     after the date on which the design is first made public.
       ``(b) When Design Is Made Public.--A design is made public 
     when an existing useful article embodying the design is 
     anywhere publicly exhibited, publicly distributed, or offered 
     for sale or sold to the public by the owner of the design or 
     with the owner's consent.
       ``(c) Application by Owner of Design.--Application for 
     registration may be made by the owner of the design.
       ``(d) Contents of Application.--The application for 
     registration shall be made to the Administrator and shall 
     state--
       ``(1) the name and address of the designer or designers of 
     the design;
       ``(2) the name and address of the owner if different from 
     the designer;
       ``(3) the specific name of the useful article embodying the 
     design;
       ``(4) the date, if any, that the design was first made 
     public, if such date was earlier than the date of the 
     application;
       ``(5) affirmation that the design has been fixed in a 
     useful article; and
       ``(6) such other information as may be required by the 
     Administrator.

     The application for registration may include a description 
     setting forth the salient features of the design, but the 
     absence of such a description shall not prevent registration 
     under this chapter.

       ``(e) Sworn Statement.--The application for registration 
     shall be accompanied by a statement under oath by the 
     applicant or the applicant's duly authorized agent or 
     representative, setting forth, to the best of the applicant's 
     knowledge and belief--
       ``(1) that the design is original and was created by the 
     designer or designers named in the application;
       ``(2) that the design has not previously been registered on 
     behalf of the applicant or the applicant's predecessor in 
     title; and
       ``(3) that the applicant is the person entitled to 
     protection and to registration under this chapter.
     If the design has been made public with the design notice 
     prescribed in section 1406, the statement shall also describe 
     the exact form and position of the design notice.
       ``(f) Effect of Errors.--(1) Error in any statement or 
     assertion as to the utility of the useful article named in 
     the application under this section, the design of which is 
     sought to be registered, shall not affect the protection 
     secured under this chapter.
       ``(2) Errors in omitting a joint designer or in naming an 
     alleged joint designer shall not affect the validity of the 
     registration, or the actual ownership or the protection of 
     the design, unless it is shown that the error occurred with 
     deceptive intent.
       ``(g) Design Made in Scope of Employment.--In a case in 
     which the design was made within the regular scope of the 
     designer's employment and individual authorship of the design 
     is difficult or impossible to ascribe and the application so 
     states, the name and address of the employer for whom the 
     design was made may be stated instead of that of the 
     individual designer.
       ``(h) Pictorial Representation of Design.--The application 
     for registration shall be accompanied by two copies of a 
     drawing or other pictorial representation of the useful 
     article embodying the design, having one or more views, 
     adequate to show the design, in a form and style suitable for 
     reproduction, which shall be deemed a part of the 
     application.
       ``(i) Design in More Than One Useful Article.--If the 
     distinguishing elements of a design are in substantially the 
     same form in different useful articles, the design shall be 
     protected as to all such useful articles when protected as to 
     one of them, but not more than one registration shall be 
     required for the design.
       ``(j) Application for More Than One Design.--More than one 
     design may be included in the same application under such 
     conditions as may be prescribed by the Administrator. For 
     each design included in an application the fee prescribed for 
     a single design shall be paid.

     ``Sec. 1411. Benefit of earlier filing date in foreign 
       country

       ``An application for registration of a design filed in the 
     United States by any person who has, or whose legal 
     representative or predecessor or successor in title has, 
     previously

[[Page H7090]]

     filed an application for registration of the same design in a 
     foreign country which extends to designs of owners who are 
     citizens of the United States, or to applications filed under 
     this chapter, similar protection to that provided under this 
     chapter shall have that same effect as if filed in the United 
     States on the date on which the application was first filed 
     in such foreign country, if the application in the United 
     States is filed within 6 months after the earliest date on 
     which any such foreign application was filed.

     ``Sec. 1412. Oaths and acknowledgments

       ``(a) In General.--Oaths and acknowledgments required by 
     this chapter--
       ``(1) may be made--
       ``(A) before any person in the United States authorized by 
     law to administer oaths; or
       ``(B) when made in a foreign country, before any diplomatic 
     or consular officer of the United States authorized to 
     administer oaths, or before any official authorized to 
     administer oaths in the foreign country concerned, whose 
     authority shall be proved by a certificate of a diplomatic or 
     consular officer of the United States; and
       ``(2) shall be valid if they comply with the laws of the 
     State or country where made.
       ``(b) Written Declaration in Lieu of Oath.--(1) The 
     Administrator may by rule prescribe that any document which 
     is to be filed under this chapter in the Office of the 
     Administrator and which is required by any law, rule, or 
     other regulation to be under oath, may be subscribed to by a 
     written declaration in such form as the Administrator may 
     prescribe, and such declaration shall be in lieu of the oath 
     otherwise required.
       ``(2) Whenever a written declaration under paragraph (1) is 
     used, the document containing the declaration shall state 
     that willful false statements are punishable by fine or 
     imprisonment, or both, pursuant to section 1001 of title 18, 
     and may jeopardize the validity of the application or 
     document or a registration resulting therefrom.

     ``Sec. 1413. Examination of application and issue or refusal 
       of registration

       ``(a) Determination of Registrability of Design; 
     Registration.--Upon the filing of an application for 
     registration in proper form under section 1410, and upon 
     payment of the fee prescribed under section 1416, the 
     Administrator shall determine whether or not the application 
     relates to a design which on its face appears to be subject 
     to protection under this chapter, and, if so, the Register 
     shall register the design. Registration under this subsection 
     shall be announced by publication. The date of registration 
     shall be the date of publication.
       ``(b) Refusal To Register; Reconsideration.--If, in the 
     judgment of the Administrator, the application for 
     registration relates to a design which on its face is not 
     subject to protection under this chapter, the Administrator 
     shall send to the applicant a notice of refusal to register 
     and the grounds for the refusal. Within 3 months after the 
     date on which the notice of refusal is sent, the applicant 
     may, by written request, seek reconsideration of the 
     application. After consideration of such a request, the 
     Administrator shall either register the design or send to the 
     applicant a notice of final refusal to register.
       ``(c) Application To Cancel Registration.--Any person who 
     believes he or she is or will be damaged by a registration 
     under this chapter may, upon payment of the prescribed fee, 
     apply to the Administrator at any time to cancel the 
     registration on the ground that the design is not subject to 
     protection under this chapter, stating the reasons for the 
     request. Upon receipt of an application for cancellation, the 
     Administrator shall send to the owner of the design, as shown 
     in the records of the Office of the Administrator, a notice 
     of the application, and the owner shall have a period of 3 
     months after the date on which such notice is mailed in which 
     to present arguments to the Administrator for support of the 
     validity of the registration. The Administrator shall also 
     have the authority to establish, by regulation, conditions 
     under which the opposing parties may appear and be heard in 
     support of their arguments. If, after the periods provided 
     for the presentation of arguments have expired, the 
     Administrator determines that the applicant for cancellation 
     has established that the design is not subject to protection 
     under this chapter, the Administrator shall order the 
     registration stricken from the record. Cancellation under 
     this subsection shall be announced by publication, and notice 
     of the Administrator's final determination with respect to 
     any application for cancellation shall be sent to the 
     applicant and to the owner of record.

     ``Sec. 1414. Certification of registration

       ``Certificates of registration shall be issued in the name 
     of the United States under the seal of the Office of the 
     Administrator and shall be recorded in the official records 
     of the Office. The certificate shall state the name of the 
     useful article, the date of filing of the application, the 
     date of registration, and the date the design was made 
     public, if earlier than the date of filing of the 
     application, and shall contain a reproduction of the drawing 
     or other pictorial representation of the design. If a 
     description of the salient features of the design appears in 
     the application, the description shall also appear in the 
     certificate. A certificate of registration shall be admitted 
     in any court as prima facie evidence of the facts stated in 
     the certificate.

     ``Sec. 1415. Publication of announcements and indexes

       ``(a) Publications of the Administrator.--The Administrator 
     shall publish lists and indexes of registered designs and 
     cancellations of designs and may also publish the drawings or 
     other pictorial representations of registered designs for 
     sale or other distribution.
       ``(b) File of Representatives of Registered Designs.--The 
     Administrator shall establish and maintain a file of the 
     drawings or other pictorial representations of registered 
     designs. The file shall be available for use by the public 
     under such conditions as the Administrator may prescribe.

     ``Sec. 1416. Fees

       ``The Administrator shall by regulation set reasonable fees 
     for the filing of applications to register designs under this 
     chapter and for other services relating to the administration 
     of this chapter, taking into consideration the cost of 
     providing these services and the benefit of a public record.

     ``Sec. 1417. Regulations

       ``The Administrator may establish regulations for the 
     administration of this chapter.

     ``Sec. 1418. Copies of records

       ``Upon payment of the prescribed fee, any person may obtain 
     a certified copy of any official record of the Office of the 
     Administrator that relates to this chapter. That copy shall 
     be admissible in evidence with the same effect as the 
     original.

     ``Sec. 1419. Correction of errors in certificates

       ``The Administrator may, by a certificate of correction 
     under seal, correct any error in a registration incurred 
     through the fault of the Office, or, upon payment of the 
     required fee, any error of a clerical or typographical nature 
     occurring in good faith but not through the fault of the 
     Office. Such registration, together with the certificate, 
     shall thereafter have the same effect as if it had been 
     originally issued in such corrected form.

     ``Sec. 1420. Ownership and transfer

       ``(a) Property Right in Design.--The property right in a 
     design subject to protection under this chapter shall vest in 
     the designer, the legal representatives of a deceased 
     designer or of one under legal incapacity, the employer for 
     whom the designer created the design in the case of a design 
     made within the regular scope of the designer's employment, 
     or a person to whom the rights of the designer or of such 
     employer have been transferred. The person in whom the 
     property right is vested shall be considered the owner of the 
     design.
       ``(b) Transfer of Property Right.--The property right in a 
     registered design, or a design for which an application for 
     registration has been or may be filed, may be assigned, 
     granted, conveyed, or mortgaged by an instrument in writing, 
     signed by the owner, or may be bequeathed by will.
       ``(c) Oath or Acknowledgement of Transfer.--An oath or 
     acknowledgment under section 1412 shall be prima facie 
     evidence of the execution of an assignment, grant, 
     conveyance, or mortgage under subsection (b).
       ``(d) Recordation of Transfer.--An assignment, grant, 
     conveyance, or mortgage under subsection (b) shall be void as 
     against any subsequent purchaser or mortgagee for a valuable 
     consideration, unless it is recorded in the Office of the 
     Administrator within 3 months after its date of execution or 
     before the date of such subsequent purchase or mortgage.

     ``Sec. 1421. Remedy for infringement

       ``(a) In General.--The owner of a design is entitled, after 
     issuance of a certificate of registration of the design under 
     this chapter, to institute an action for any infringement of 
     the design.
       ``(b) Review of Refusal To Register.--(1) Subject to 
     paragraph (2), the owner of a design may seek judicial review 
     of a final refusal of the Administrator to register the 
     design under this chapter by bringing a civil action, and may 
     in the same action, if the court adjudges the design subject 
     to protection under this chapter, enforce the rights in that 
     design under this chapter.
       ``(2) The owner of a design may seek judicial review under 
     this section if--
       ``(A) the owner has previously duly filed and prosecuted to 
     final refusal an application in proper form for registration 
     of the design;
       ``(B) the owner causes a copy of the complaint in the 
     action to be delivered to the Administrator within 10 days 
     after the commencement of the action; and
       ``(C) the defendant has committed acts in respect to the 
     design which would constitute infringement with respect to a 
     design protected under this chapter.
       ``(c) Administrator as Party to Action.--The Administrator 
     may, at the Administrator's option, become a party to the 
     action with respect to the issue of registrability of the 
     design claim by entering an appearance within 60 days after 
     being served with the complaint, but the failure of the 
     Administrator to become a party shall not deprive the court 
     of jurisdiction to determine that issue.
       ``(d) Use of Arbitration To Resolve Dispute.--The parties 
     to an infringement dispute under this chapter, within such 
     time as may be specified by the Administrator by regulation, 
     may determine the dispute, or any aspect of the dispute, by 
     arbitration. Arbitration shall be governed by title 9. The 
     parties shall give notice of any arbitration award to the 
     Administrator, and such award shall, as between the parties 
     to the arbitration, be dispositive of the issues to which it

[[Page H7091]]

     relates. The arbitration award shall be unenforceable until 
     such notice is given. Nothing in this subsection shall 
     preclude the Administrator from determining whether a design 
     is subject to registration in a cancellation proceeding under 
     section 1413(c).

     Sec. 1422. Injunctions

       ``(a) In General.--A court having jurisdiction over actions 
     under this chapter may grant injunctions in accordance with 
     the principles of equity to prevent infringement of a design 
     under this chapter, including, in its discretion, prompt 
     relief by temporary restraining orders and preliminary 
     injunctions.
       ``(b) Damages for Injunctive Relief Wrongfully Obtained.--A 
     seller or distributor who suffers damage by reason of 
     injunctive relief wrongfully obtained under this section has 
     a cause of action against the applicant for such injunctive 
     relief and may recover such relief as may be appropriate, 
     including damages for lost profits, cost of materials, loss 
     of good will, and punitive damages in instances where the 
     injunctive relief was sought in bad faith, and, unless the 
     court finds extenuating circumstances, reasonable attorney's 
     fees.

     ``Sec. 1423. Recovery for infringement

       ``(a) Damages.--Upon a finding for the claimant in an 
     action for infringement under this chapter, the court shall 
     award the claimant damages adequate to compensate for the 
     infringement. In addition, the court may increase the damages 
     to such amount, not exceeding $50,000 or $1 per copy, 
     whichever is greater, as the court determines to be just. The 
     damages awarded shall constitute compensation and not a 
     penalty. The court may receive expert testimony as an aid to 
     the determination of damages.
       ``(b) Infringer's Profits.--As an alternative to the 
     remedies provided in subsection (a), the court may award the 
     claimant the infringer's profits resulting from the sale of 
     the copies if the court finds that the infringer's sales are 
     reasonably related to the use of the claimant's design. In 
     such a case, the claimant shall be required to prove only the 
     amount of the infringer's sales and the infringer shall be 
     required to prove its expenses against such sales.
       ``(c) Statute of Limitations.--No recovery under subsection 
     (a) or (b) shall be had for any infringement committed more 
     than 3 years before the date on which the complaint is filed.
       ``(d) Attorney's Fees.--In an action for infringement under 
     this chapter, the court may award reasonable attorney's fees 
     to the prevailing party.
       ``(e) Disposition of Infringing and Other Articles.--The 
     court may order that all infringing articles, and any plates, 
     molds, patterns, models, or other means specifically adapted 
     for making the articles, be delivered up for destruction or 
     other disposition as the court may direct.

     ``Sec. 1424. Power of court over registration

       ``In any action involving the protection of a design under 
     this chapter, the court, when appropriate, may order 
     registration of a design under this chapter or the 
     cancellation of such a registration. Any such order shall be 
     certified by the court to the Administrator, who shall make 
     an appropriate entry upon the record.

     ``Sec. 1425. Liability for action on registration 
       fraudulently obtained

       ``Any person who brings an action for infringement knowing 
     that registration of the design was obtained by a false or 
     fraudulent representation materially affecting the rights 
     under this chapter, shall be liable in the sum of $10,000, or 
     such part of that amount as the court may determine. That 
     amount shall be to compensate the defendant and shall be 
     charged against the plaintiff and paid to the defendant, in 
     addition to such costs and attorney's fees of the defendant 
     as may be assessed by the court.

     ``Sec. 1426. Penalty for false marking

       ``(a) In General.--Whoever, for the purpose of deceiving 
     the public, marks upon, applies to, or uses in advertising in 
     connection with an article made, used, distributed, or sold, 
     a design which is not protected under this chapter, a design 
     notice specified in section 1406, or any other words or 
     symbols importing that the design is protected under this 
     chapter, knowing that the design is not so protected, shall 
     pay a civil fine of not more than $500 for each such offense.
       ``(b) Suit by Private Persons.--Any person may sue for the 
     penalty established by subsection (a), in which event one-
     half of the penalty shall be awarded to the person suing and 
     the remainder shall be awarded to the United States.

     ``Sec. 1427. Penalty for false representation

       ``Whoever knowingly makes a false representation materially 
     affecting the rights obtainable under this chapter for the 
     purpose of obtaining registration of a design under this 
     chapter shall pay a penalty of not less than $500 and not 
     more than $1,000, and any rights or privileges that 
     individual may have in the design under this chapter shall be 
     forfeited.

     ``Sec. 1428. Enforcement by Treasury and Postal Service

       ``(a) Regulations.--The Secretary of the Treasury and the 
     United States Postal Service shall separately or jointly 
     issue regulations for the enforcement of the rights set forth 
     in section 1408 with respect to importation. Such regulations 
     may require, as a condition for the exclusion of articles 
     from the United States, that the person seeking exclusion 
     take any one or more of the following actions:
       ``(1) Obtain a court order enjoining, or an order of the 
     International Trade Commission under section 337 of the 
     Tariff Act of 1930 excluding, importation of the articles.
       ``(2) Furnish proof that the design involved is protected 
     under this chapter and that the importation of the articles 
     would infringe the rights in the design under this chapter.
       ``(3) Post a surety bond for any injury that may result if 
     the detention or exclusion of the articles proves to be 
     unjustified.
       ``(b) Seizure and Forfeiture.--Articles imported in 
     violation of the rights set forth in section 1408 are subject 
     to seizure and forfeiture in the same manner as property 
     imported in violation of the customs laws. Any such forfeited 
     articles shall be destroyed as directed by the Secretary of 
     the Treasury or the court, as the case may be, except that 
     the articles may be returned to the country of export 
     whenever it is shown to the satisfaction of the Secretary of 
     the Treasury that the importer had no reasonable grounds for 
     believing that his or her acts constituted a violation of the 
     law.

     ``Sec. 1429. Relation to design patent law

       ``The issuance of a design patent under title 35 for an 
     original design for an article of manufacture shall terminate 
     any protection of the original design under this chapter.

     ``Sec. 1430. Common law and other rights unaffected

       ``Nothing in this chapter shall annul or limit--
       ``(1) common law or other rights or remedies, if any, 
     available to or held by any person with respect to a design 
     which has not been registered under this chapter; or
       ``(2) any right under the trademark laws or any right 
     protected against unfair competition.

     ``Sec. 1431. Administrator; Office of the Administrator

       ``In this chapter, the `Administrator' is the Register of 
     Copyrights, and the `Office of the Administrator' and the 
     `Office' refer to the Copyright Office of the Library of 
     Congress.

     ``Sec. 1432. No retroactive effect

       ``Protection under this chapter shall not be available for 
     any design that has been made public under section 1410(b) 
     before the effective date of this chapter.''.

     SEC. 603. CONFORMING AMENDMENTS.

       (a) Table of Chapters.--The table of chapters for title 17, 
     United States Code, is amended by adding at the end the 
     following:

``14. Protection of Original Designs........................1401''.....

       (b) Jurisdiction of District Courts Over Design Actions.--
     (1) Section 1338(c) of title 28, United States Code, is 
     amended by inserting ``, and to exclusive rights in designs 
     under chapter 14 of title 17,'' after ``title 17''.
       (2)(A) The section heading for section 1338 of title 28, 
     United States Code, is amended by inserting ``designs,'' 
     after ``mask works,''.
       (B) The item relating to section 1338 in the table of 
     sections at the beginning of chapter 85 of title 28, United 
     States Code, is amended by inserting ``designs,'' after 
     ``mask works,''.
       (c) Place for Bringing Design Actions.--Section 1400(a) of 
     title 28, United States Code, is amended by inserting ``or 
     designs'' after ``mask works''.
       (d) Actions Against the United States.--Section 1498(e) of 
     title 28, United States Code, is amended by inserting ``, and 
     to exclusive rights in designs under chapter 14 of title 
     17,'' after ``title 17''.

     SEC. 604. EFFECTIVE DATE.

       The amendments made by sections 602 and 603 shall take 
     effect one year after the date of the enactment of this Act.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
North Carolina (Mr. Coble) and the gentleman from Massachusetts (Mr. 
Frank) each will control 20 minutes.
  The Chair recognizes the gentleman from North Carolina (Mr. Coble).


                             General Leave

  Mr. COBLE. Madam Speaker, I ask unanimous consent that all Members 
may have 10 legislative days within which to revise and extend their 
remarks on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from North Carolina?
  There was no objection.
  Mr. COBLE. Madam Speaker, I ask unanimous consent that the gentleman 
from Virginia (Mr. Bliley), the chairman of the Committee on Commerce, 
be allowed to control 10 of my 20 minutes.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from North Carolina?
  There was no objection.
  Mr. COBLE. Madam Speaker, I yield myself such time as I may consume. 
Oftentimes when significant legislation comes to the floor, it is 
described as landmark legislation. At the risk of being presumptuous 
and immodest, I think this may well indeed be landmark legislation.
  This bill will implement two treaties which are extremely important 
to ensure the adequate protection for American works in countries 
around the world, particularly at a time when the

[[Page H7092]]

digital environment now allows users to send and retrieve perfect 
copies of copyrighted material over the Internet. While digital 
dissemination of copies will benefit owners and consumers, it will 
unfortunately also facilitate pirates who aim to destroy the value of 
American intellectual property. In compliance with the treaties, H.R. 
2281 makes it unlawful to defeat technological protections used by 
copyright owners to protect their works, including preventing unlawful 
access and targeting devices made to circumvent encrypted copyrighted 
material. It also makes it unlawful to deliberately alter or delete 
information provided by a copyright owner which identifies a work, its 
owners, and its permissible use.
  H.R. 2281, Madam Speaker, is a comprehensive copyright bill that adds 
substantial value to our copyright law. It represents five years of 
research, debate, hearings and negotiations. It is only the beginning 
of Congress' evaluation of the impact of the digital age on copyrighted 
works. Although it is just a beginning, it is essential to maintain the 
United States' position as the world leader in the protection of 
intellectual property in the digital environment.
  H.R. 2281 also represents the collective efforts of many. In 
particular I want to commend the gentleman from Illinois (Mr. Hyde), 
the chairman of the Committee on the Judiciary; the gentleman from 
Michigan (Mr. Conyers), the ranking member of the Committee on the 
Judiciary; and the gentleman from Massachusetts (Mr. Frank), the 
ranking member of the Subcommittee on Courts and Intellectual Property.
  H.R. 2281, Madam Speaker, in my opinion is necessary legislation to 
ensure the protection of copyrighted works as the world moves into the 
digital environment. I urge its passage.
  Madam Speaker, I reserve the balance of my time.
  Mr. FRANK of Massachusetts. Madam Speaker, I yield myself such time 
as I may consume.
  Madam Speaker, I first want to note that this is a matter that the 
Committee on the Judiciary has been working on for some time. It then 
went, under our rules, to the Committee on Commerce. Both committees 
and indeed both parties in both committees bring this bill forward. I 
note that because people who have been unduly addicted to the media 
would not, I think, have an understanding of what has been happening. 
We have here some very complex issues dealing with the economy and how 
we adapt some fundamental principles, intellectual property principles 
which are very important to us, to modern technology. There were some 
sharp disagreements. There were some conflicting and competing values, 
as is often the case. What has happened is for a period of some time, 
first in the Committee on the Judiciary and then in the Committee on 
Commerce, people have worked on this and come up with what I believe is 
a very good set of solutions.
  I note that because I do think the public is entitled to know that 
the portrayals of the Congress in general, the Committee on the 
Judiciary in particular as somehow the set of a Three Stooges movie or 
the scene of ferocious battles simply is not true. One of the problems 
we have today is that there is an inattention on the part of our 
friends in the media to what is the actual business of this place. I 
think it is important for people to understand. These are very serious 
issues that had to be dealt with, conflicting values.
  For example, many of us feel very strongly on the need to protect 
intellectual property. If we do not see that authors and composers and 
singers and musicians and other creative people are rewarded for their 
work, not only is that unfair, to many of us, but the amount of work we 
get will diminish.

                              {time}  1345

  There may be some people fortunate enough to be able to create out of 
love without regard to compensation. We cannot depend only on the 
independently wealthy to be our creative people. It is important for us 
as a vibrant society to sustain that, and one way to sustain that is to 
recognize the property that people have in the product of their 
intellectual labors, their creative intellectual labors.
  That was, to some extent, threatened by modern technology, by 
technological change which makes it easier for that minority of people 
who do not respect others' intellectual property to steal it because of 
the collection of technology we now use, the short end of the Internet. 
What we wanted to do was to come up with ways to adapt the protection 
of intellectual property to a modern technological era without unduly 
diminishing people's rights to enjoy things. We do not want to prevent 
the public from having the enjoyment of these products.
  Madam Speaker, I have one thing that bothered me in particular, and I 
am pleased that this bill addresses it in a reasonable way because 
there was no guarantee that it would.
  One of the things we do here is to say:

       ``If you are an on-line service provider, if you are 
     responsible for the production of all of this out to the 
     public, you will not be held automatically responsible if 
     someone misuses the electronic airway you provide to steal 
     other people's property.

  There is a balance here. We want to protect property, but we do not 
want to deter people from making this widely available. We have a 
problem here of making sure that intellectual property is protected, 
but we do not want freedom of expression impinged upon.
  Madam Speaker, I found that particularly important for this reason, 
and I think this is a point that I want very much to stress:
  We live in as free a society from the standpoint of expression as I 
believe has ever existed in the world. The level of freedom of 
expression which Americans enjoy is very, very profound, and that is 
very important to us.
  The problem is we have had two doctrines of freedom of expression. We 
have had one which covered all speech and written speech, newspapers, 
magazines, theater, billboards; that has been very free.
  Beginning in the 1930s when radio came to play, we started a new form 
of speech, and that was speech electronically transmitted. And because 
we started with a limited spectrum, because we started with physical 
limitations on the amount of speech that could go out, we began with 
electronically-communicated speech in the 1930s to develop a parallel 
doctrine which gave less protection to speech electronically 
transmitted. Over time we had a tradition of constitutionally very 
protected speech, and then speech transmitted electronically that was 
less protected.
  The problem here is that as this society goes forward, an 
increasingly high percentage of what we say to each other will be 
electronically transmitted through E-mail and through other ways. It 
seems to me important for us to reverse this notion that 
electronically-transmitted speech is entitled to a lesser degree of 
protection in the area of freedom of expression than all other forms of 
speech or we will be, 30 years from now, a less free society. That has 
application to legislation of various kinds, and we will deal with that 
in another context.
  But one of the things that was a potential danger here was that by 
protecting intellectual property, a very important job, we would have 
imposed on the on-line service providers such a degree of liability as, 
in fact, to diminish to some extent the freedom they felt in presenting 
things.
  What I am most happy about in this bill is I think we have hit about 
the right balance. We have hit a balance which fully protects 
intellectual property, which is essential to the creative life of 
America, to the quality of our life, because if we do not protect the 
creators, there will be less creation. But at the same time we have 
done this in a way that will not give to the people in the business of 
running the on-line service entities and running Internet, it will not 
give them either an incentive or an excuse to censor.
  No bill is perfect. There are some tensions here. This will go to 
conference, and then there will be room for some further changes.
  But for achieving that essential balance I am very pleased, and I 
want to note again the two committees of this House and the parties 
represented in both committees worked very closely together to bring 
forward legislation without rancor, without partisanship, in fact 
serving very well the needs of this country.
  Madam Speaker, I reserve the balance of the time.

[[Page H7093]]

  Mr. BLILEY. Madam Speaker, I yield myself 2 minutes.
  (Mr. BLILEY asked and was given permission to revise and extend his 
remarks and include extraneous material.)
  Mr. BLILEY. Madam Speaker, I rise in support of H.R. 2281, and would 
like to begin by commending my good friend and colleague, the gentleman 
from Illinois (Mr. Hyde), the chairman of the House Committee on the 
Judiciary, and his very able subcommittee chairman, the gentleman from 
Greensboro, North Carolina (Mr. Coble), the chairman of the 
Subcommittee on Courts and Intellectual Property of the Committee on 
the Judiciary.
  And I would also like to thank two members of the Committee on 
Commerce in addition to my ranking member, the gentleman from Michigan 
(Mr. Dingell), but I would also like to thank the gentleman from 
Wisconsin (Mr. Klug) and the gentleman from Virginia (Mr. Boucher) whom 
I believe through their work have improved this legislation. It is 
because of the steadfast commitment to enacting this important 
legislation that we are here today on the brink of enactment.
  I would like to thank the gentleman from Massachusetts (Mr. Frank), 
the ranking member of the subcommittee, for his work, as well as the 
gentleman from Massachusetts (Mr. Markey) for his contributions. It 
shows that we can work together and we can achieve very important 
legislation.
  As my colleagues know, Madam Speaker, with the growth of electronic 
commerce having such a profound effect on the economy, the Committee on 
Commerce has been engaged in a wide-ranging review of the subject, 
including the issues raised by H.R. 2281. The Committee on Commerce's 
version of this bill strikes an appropriate balance between the goal of 
promoting electronic commerce and the interests of copyright owners.
  Let me specifically highlight two of the most important changes that 
the Committee on Commerce added to the bill before us today:
  First, the Committee on Commerce included a strong fair use provision 
to ensure that consumers as well as libraries and institutions of 
higher learning will be able to continue to exercise their historical 
fair use rights. The bill before us today contains the substance of the 
Committee on Commerce provision on fair use, and I am pleased to say 
that major newspapers such as the New York Times and the Washington 
Post have strongly endorsed the Committee on Commerce's language on 
fair use.
  Madam Speaker, I include those editorials following my statement in 
the RECORD.
  The editorials referred to are as follows:

                [From the New York Times, July 24, 1998]

                     Protecting Digital Copyrights

       Traditional copyright concepts that have served this nation 
     well for centuries should guide the debate on copyright in 
     the digital universe. As Congress fashions ways to protect 
     commercial interests in the digital realm, it must be careful 
     also to protect the larger public interest in broad access to 
     information.
       Digital copyright legislation, required to institute two 
     international treaties that would protect movies, music and 
     other intellectual property from piracy, passed the Senate 
     and the House Judiciary Committee this spring. But 
     controversy continues to swirl around a provision in the 
     legislation that would make it a crime to circumvent 
     encryption used to control access to digital material or to 
     manufacture or sell devices that could be used to circumvent 
     protection measures.
       Movie and music producers argue that making circumvention 
     illegal is the only way to prevent consumer theft of on-line 
     movies, recordings and other products. But libraries and 
     schools believe that the prohibition is so broad that it 
     could greatly limit access to electronic information that 
     copyright law would otherwise allow.
       Existing law assures producers the right to profit from 
     their creative works. But the law does not allow a creator to 
     control who looks at the material or prevent the material 
     from being circulated or lent to others. It specifically 
     allows the ``fair use'' of copyrighted materials for 
     commentary, criticism, teaching, news reporting, scholarship 
     and research under certain circumstances without permission 
     from the copyright owner.
       Thus a library can purchase a book, allow hundreds of 
     patrons to borrow it and let teachers make copies of material 
     in it for classroom use, all without infringing the 
     copyright. Preserving these user rights is important in the 
     digital world where copyright owners, with the right 
     technology, could limit or prevent access to information.
       The content producers dismiss fears that the Internet could 
     become a strictly pay-for-use world as unrealistic, but 
     neither they nor Congress can predict how the Internet will 
     develop. That is why legislation needs to be flexible enough 
     to deal with rapid evolution in technology and electronic 
     commerce.
       A prudent compromise approved by the House Commerce 
     Committee last week would delay the anti-circumvention rule 
     for two years while the Commerce Department and the Federal 
     patent and copyright officers study the effect of the 
     prohibition on users. The Commerce Secretary could waive the 
     rule for any class of works where technological shields were 
     impeding the lawful use of copyrighted matter. The situation 
     would be reviewed every two years. Both the content producers 
     and the libraries and schools are willing to accept this more 
     fluid approach. Congress should adopt this plan in the final 
     version of the digital copyright legislation.
                                  ____


                [From The Washington Post, Aug. 4, 1998]

                          A Pay-Per-View World

       Congress has been trying for most of this year to ratify 
     the international treaties that are supposed to bring 
     copyright law into the digital age. It's been a large and 
     complicated endeavor, requiring people to rethink such 
     fundamental aspects of intellectual property rights as what 
     constitutes ``copying'' in a digital environment (is it 
     copying a document just to read it on your computer? To print 
     it out to read later?) and when such copying represents a 
     copyright violation. But the major snag is none of these 
     weighty issues but, rather, a fierce face-off between 
     libraries and big-time copyright-holding interests over a 
     seemingly minor provision that would make it a crime to break 
     any technological locking device designed to prevent 
     unauthorized copying.
       This debate over the ``anti-circumvention'' provision is 
     now the main item of disagreement between versions of the 
     copyright bill produced by the Judiciary and Commerce 
     committees. (The Senate passed copyright legislation in May.) 
     Those who expect movies, songs, software and even books to be 
     eventually delivered mainly over the Internet want to make 
     sure that this will not mean widespread unauthorized copying 
     and the subsequent collapse of any market for the work. 
     (Newspapers, as creators of copyrighted material, have an 
     interest here as well.) They picture every piece of 
     intellectual property being distributed with some kind of 
     ``lock'' that would permit, say, just one viewing of a 
     downloaded movie. It's the disabling of this lock that would 
     be made a crime, except in specified circumstances.
       There's room for doubt whether it makes sense to make the 
     lock-breaking a crime here rather than merely, as till now, 
     the actual copyright violation. But the real problem is more 
     pragmatic. This ``transition to a pay-per-view world,'' as 
     one enthusiastic movie distributor put it, works fine for the 
     entertainment industries and the commercial market. Where it 
     doesn't work is in libraries and other places where use of 
     books and research material is not pay-per-view but, till 
     now, free.
       Libraries are worried that the ``fair use'' exemption that 
     allows limited use of copyrighted material without permission 
     for such purposes as comment, criticism, education or 
     research--though technically unchanged in the law--would 
     become sharply limited in practice if all material were 
     distributed with ``locks'' and libraries were prohibited from 
     ``unlocking'' it. What happens, they ask if a chart of 
     environmental data that now can be photocopied for use in a 
     class were made available only on a CD from which printouts 
     can't be made? What if research journals are provided to 
     libraries on a pay-per-view basis that keeps independent 
     researchers from making photocopies for their own use?
       Language in the Commerce bill sought to address this 
     problem by creating a mandatory review every two years of the 
     provision's effect on ``fair use'' in various contexts. On 
     the floor or in conference, these protections from a 
     permanent ``pay-per-review world'' ought to be maintained.

  As the Chairman of the Committee which was principally responsible 
for rewriting H.R. 2281 and eliminating the most harmful aspects of the 
bill as proposed by the Administration, I want to share with my 
colleagues the Committee's perspective on the scope of this legislation 
and to note, where appropriate, the instances in which we sought to 
clarify the bills as reported by the Committee on the Judiciary and as 
approved by the Senate.
  As noted at the outset, the Committee has been engaged in a wide-
ranging review of all the issues affecting the growth of electronic 
commerce. Our Committee has a long-standing, well-established role in 
assessing the impact of possible changes in law on the use and 
availability of the products and services that have made our 
information technology industry the envy of the world. We therefore 
paid particular attention to the potential harmful impacts on 
electronic commerce of the bill as reported by the Committee on the 
Judiciary.
  Today, the U.S. information technology industry is developing 
exciting new products to enhance the lives of individuals throughout 
the world, and our telecommunications industry is developing new means 
of distributing information to these consumers in every part of the

[[Page H7094]]

globe. In this environment, the development of new laws and regulations 
could well have a profound impact on the growth of electronic commerce.
  In recognition of these developments and as part of the effort to 
begin updating national laws for the digital era, delegates from over 
150 countries (including the United States) convened in December 1996 
to negotiate two separate treaties under the auspices of the World 
Intellectual Property Organization: the Copyright Treaty and the 
Performance and Phonograms Treaty. In July 1997, the Clinton 
Administration submitted the treaties to the Senate for ratification 
and submitted proposed implementing legislation to both the House and 
the Senate. The Committee on the Judiciary largely reported out the 
bill as proposed by the Administration.
  In holding hearings, it became apparent to our Committee that this 
and the Senate version of the legislation contained serious flaws. Not 
surprisingly, these bills were opposed by significant private and 
public sector interests, including libraries, institutions of higher 
learning, consumer electronics and computer product manufacturers, and 
others with a vital stake in the growth of electronic commerce. It also 
became apparent that the main provisions of the treaties to be 
implemented have little to do with copyright law. In fact, the ``anti-
circumvention'' provisions of the Administration's bill created 
entirely new rights for content providers that are wholly divorced from 
copyright law. These new provisions (and the accompanying penalty 
provisions for violations of them) would be separate from, and 
cumulative to, the claims available to copyright owners under the 
Copyright Act.
  In carrying out its responsibilities under the Constitution. Congress 
has historically regulated the use of information--not the devices or 
means by which information is delivered or used by information 
consumers--and has ensured an appropriate balance between the interests 
of copyright owners and information users. Section 106 of the Copyright 
Act of 1976, for example, establishes certain rights copyright owners 
have in their works, including limitations on the use of these works 
without their authorization. Sections 107 through 121 of the Copyright 
Act set forth the circumstances in which such uses are deemed lawful 
even though unauthorized.
  In general, all of these provisions are technology neutral. They do 
not regulate commerce in information technology, i.e., products and 
devices for transmitting, storing, and using information. Instead, they 
prohibit certain actions and create exceptions to permit certain 
conduct deemed to be in the greater public interest, all in a way that 
balances the interests of copyright owners and users of copyrighted 
works.
  In writing its bill, the Committee sought to preserve that tradition. 
We worked hard to reduce the risk that enactment of H.R. 2281 could 
establish the legal framework that would inexorably create a ``pay-per-
use'' society. In short, the Committee endeavored to specify, with as 
much clarity as possible, how the anti-circumvention right in 
particular would be qualified to maintain balance between the interests 
of content creators and information users.
  The Committee considered it particularly important to ensure that the 
concept of fair use would remain firmly established in the law. Section 
1201(a)(1) is one of the most important provisions of this legislation, 
and one that must be included in any version of this bill eventually 
sent to the President for signature. It was crafted by the Commerce 
Committee to protect ``fair use'' and other users of information now 
lawful under the Copyright Act. Let us make no mistake about the scope 
of what we are doing here today in adopting H.R. 2281, about the 
tremendously powerful new right to control access to information that 
we are granting to information owners for the very first time.
  If left unqualified, this new right, as the Commerce Committee heard 
in testimony from the public and private sectors alike, could well 
prove to be the legal foundation for a society in which information 
becomes available only on a ``pay-per-use'' basis. That's why this bill 
assures that institutions like schools and libraries, and the public, 
will have an opportunity in a credible and permanent process to make 
the case that the new right we've adopted is interfering with fair use 
and other rights now enjoyed by information users under current law. 
Moreover, the Commerce Committee's report, I note for the record makes 
clear that the showing that must be made in this process is not 
intended to be unduly burdensome for either institutions or the public. 
Indeed, the Committee took pains to make clear that evidence of loss of 
access to a ``particular class of works''--intended to be gauged 
narrowly--would result in relief from the prohibition otherwise imposed 
on access to information by this legislation.
  That's also why--in express recognition of the importance of the 
Commerce Committee's work--today's Washington Post carries an editorial 
urging that ``on the floor, or in conference, these protections from a 
permanent `pay-per-view world ought to be maintained.' '' Copyright law 
is not just about protecting information. It's just as much about 
affording reasonable access to it as a means of keeping our democracy 
healthy and doing what the Constitution says copyright law is all 
about: promoting ``Progress in Science and the useful Arts.'' If this 
bill ceases to strike that balance, it will no longer deserve Congress' 
or the public's support.
  Section 1201(a)(2) makes it illegal to manufacture, import, offer to 
the public, provide, or otherwise traffic in any technology, product, 
service, device, component, or part thereof that is primarily designed 
or produced for the purpose of circumventing a technological measure 
that effectively controls access to certain works; has only limited 
commercially significant purposes or uses other than to circumvent such 
a measure; or is marketed for use in circumventing such a measure. 
Section 1201(b)(1) similarly makes it illegal to manufacture, import, 
offer to the public, provide, or otherwise traffic in any technology, 
product, service, device, component, or part thereof that is primarily 
designed or produced for the purpose of circumventing a protection 
measure that protects certain rights of copyright owners under title 
17, United States Code; has only limited commercially significant 
purposes or uses other than to circumvent such a measure; or is 
marketed for use in circumventing such a measure.
  In our report, the Committee stressed that section 1201(a)(2) is 
aimed fundamentally at outlaying so-called ``black boxes'' that are 
expressly intended to facilitate circumvention of protection measures 
for purposes of gaining access to a work. This provision is not aimed 
at products that are capable of commercially significant noninfringing 
uses, such as the consumer electronics, telecommunications, and 
computer products--including videocassette recorders, 
telecommunications switches, personal computers, and servers--used by 
businesses and consumers everyday for perfectly legitimate purposes. 
Moreover, as section 1201(c)(3) makes clear, such a device does not 
need to be designed or assembled, or parts or components for inclusion 
in a device be designed, selected, or assembled, so as affirmatively to 
accommodate or respond to any particular technological measure.
  Section 2101(a)(3) of H.R. 2281 defines certain terms used throughout 
Section 1201(a). As we made clear in our report, the measures that 
would be deemed to ``effectively control access to a work'' would be 
those based on encryption, scrambling, authentication, or some other 
measure which requires the use of a ``key'' provided by a copyright 
owner to gain access to a work.
  Section 2101(b)(1) of H.R. 2281 makes it illegal to manufacture, 
import, offer to the public, provide, or otherwise traffic in any 
technology, product, service, device, component, or part thereof that 
is primarily designed or produced for the purpose of circumventing a 
protection measure that protects certain rights of copyright owners 
under title 17, United States Code; has only limited commercially 
significant purposes or uses other than to circumvent such a measure; 
or is marketed for use in circumventing such a measure. The Committee 
believes it is very important to emphasize that this section, like 
section 1201(a)(2), is aimed fundamentally at outlawing so-called 
``black boxes'' that are expressly intended to facilitate circumvention 
of protection measures. Thus, this section similarly would not outlaw 
the manufacturing, importing, or distributing of standard videocassette 
recorders and computer products.
  Section 1201(b)(2) of H.R. 2281 defines important phrases, including 
when a protection measure ``effectively protects a right of a copyright 
owner under title 17, United States Code.'' In our view, the measures 
that would be deemed to ``effectively'' protect such rights would be 
those based on encryption, scrambling, authentication, or some other 
measure which requires the use of a ``key'' to copy a work.
  With respect to the effectiveness of the measures covered by the 
legislation, the Committee stressed in its report that those measures 
that cause noticeable and recurring adverse effects on the authorized 
display or performance of works should not be deemed to be effective. 
Given our keen interest in the development of new products, in 
particular digital television monitors, the Committee is particularly 
concerned that the introduction of such measures not frustrate consumer 
expectations and that this legislation not be interpreted to in any way 
limit the authority of manufacturers and retailers to address the 
legitimate concerns of their customers.
  Based on prior experience, the Committee on Commerce was concerned 
that manufacturers, retailers, and consumers may be adversely affected 
by the introduction of some technological measures and systems for 
preserving copyright management information. In fact, the Committee 
learned as part of its review of H.R. 2281 that, as initially proposed, 
a

[[Page H7095]]

proprietary copy protection scheme that is today widely used to protect 
analog motion pictures could have caused significant view-ability 
problems, including noticeable artifacts, with certain television sets 
until it was modified with the cooperation of the consumer electronics 
industry.
  As advances in technology occur, consumers will enjoy additional 
benefits if devices are able to interact and share information. 
Achieving interoperability in the consumer electronics environment will 
be a critical factor in the growth of electronic commerce. In our view, 
manufacturers, consumers, retailers, and servicers should not be 
prevented from correcting an interoperability problem resulting from a 
protection measure causing one or more devices in the home or in a 
business to fail to interoperate with other technologies.

  Under the bill under consideration today, nothing would make it 
illegal for a manufacturer of a product or device (to which section 
1201 would otherwise apply) to design or modify the product or device 
solely to the extent necessary to mitigate a frequently occurring and 
noticeable adverse effect on the authorized performance or display of a 
work that is caused by a protection measure in the ordinary course of 
its design and operation. Similarly, recognizing that a technological 
measure may cause a problem with a particular device, or combination of 
devices, used by a consumer, it is our view that nothing in the bill 
should be interpreted to make it illegal for a retailer or individual 
consumer to modify a product or device solely to the extent necessary 
to mitigate a noticeable adverse effect on the authorized performance 
or display of a work that is communicated to or received by that 
particular product or device if that adverse effect is caused by a 
protection measure in the ordinary course of its design and operation. 
I might add that nothing in section 1202 makes it illegal for such a 
person to design or modify a product or device solely to the extent 
necessary to mitigate a frequently occurring and noticeable adverse 
effect on the authorized performance or display of a work that is 
caused by the use of copyright management information.
  I wish to stress that I and other Members of the Committee on 
Commerce believe that the affected industries should be able to work 
together to avoid such problems. We know that multi-industry efforts to 
develop copy control technologies that are both effective and avoid 
such noticeable and recurring adverse effects have been underway over 
the past two years. We strongly encourage the continuation of those 
efforts, which should offer substantial benefits to copyright owners in 
whose interest it is to achieve the introduction of effective 
protection (and copyright management information) measures that do not 
interfere with the normal operations of affected products. We look 
forward to working with interested parties to the extent additional 
legislation is required to implement such technologies or to avoid 
their circumvention.
  As the Chairman of the Committee that eliminated the inherent 
ambiguity in the Senate's version of this legislation, I also want to 
put section 1201(c)(3) in context. It provides that nothing in section 
1201 requires that the design of, or design and selection of parts and 
components for, a consumer electronics, telecommunications, or computer 
product provide for a response to any particular protection measure. We 
specifically modified the Senate version of this provision because of 
our strong belief that product manufacturers should remain free to 
design and produce consumer electronics, telecommunications, and 
computing products without the threat of incurring liability for their 
design decisions. Imposing design requirements on product and component 
manufacturers would have a dampening effect on innovation, on the 
research and development of new products, and hence on the growth of 
electronic commerce.
  As the hearing record demonstrates, there is a fundamental difference 
between a device that does not respond to a protection measure and one 
that affirmatively removes such a measure. Section 1202(c)(3) is 
intended to make clear that nothing in section 1201 requires that the 
design of, or design and selection of parts and components for, a 
consumer electronics, telecommunications, or computing product provide 
for a response to any particular technological measure that might be 
used to control access to or the copying of a work protected under 
title 17, United States Code. Of course, this provision is not intended 
to create a loophole to remove from the proscriptions of section 1201 
devices, or components or parts thereof, that circumvent by, for 
example, affirmatively decrypting an encrypted work or descrambling a 
scrambled work.
  Mr. BLILEY. Madam Speaker, I reserve the balance of my time.
  Mr. COBLE. Madam Speaker, I yield 3\1/2\ minutes to the gentleman 
from Virginia (Mr. Goodlatte) a member of the subcommittee and the full 
committee.
  (Mr. GOODLATTE asked and was given permission to revise and extend 
his remarks.)
  Mr. GOODLATTE. Madam Speaker, I rise today in support of H.R. 2281, 
the World Intellectual Property Organization Copyright Treaties 
Implementation Act. I would like to thank the gentleman from North 
Carolina (Mr. Coble) and the gentleman from Illinois (Mr. Hyde), as 
well as the gentleman from Virginia (Mr. Bliley) and the gentleman from 
Massachusetts (Mr. Frank) for their leadership on this issue.
  Additionally, I would like to thank the gentleman from North Carolina 
(Mr. Coble) for asking me to lead the negotiations between the various 
parties on the issue of on-line service provider liability for 
copyright infringement which is included in this important bill. Madam 
Speaker, the issue of liability for on-line copyright infringement, 
especially where it involves third parties, is difficult and complex.
  For me personally this issue is not a new one. During the 104th 
Congress then-Chairman Carlos Moorhead asked me to lead negotiations 
between the parties. Although I held numerous meetings involving 
members of the content community and members of the service provider 
community, unfortunately we were not able to resolve this issue.
  At the beginning of the 105th Congress the gentleman from North 
Carolina (Mr. Coble) asked me to again lead the negotiations between 
the parties on this issue. After a great deal of meetings and 
negotiation sessions, the copyright community and the service provider 
community were able to successfully reach agreement. That agreement is 
included in the bill we are considering today. No one is happier, 
except maybe those in each community who spent countless hours and a 
great deal of effort trying to reach agreement, than I am with the 
agreement contained in this bill.
  Madam Speaker, this is a critical issue to the development of the 
Internet, and I believe that both sides in this debate need each other. 
If America's creators do not believe that their works will be protected 
when they put them on-line, then the Internet will lack the creative 
content it needs to reach its true potential; and if America's service 
providers are subject to litigation for the acts of third parties at 
the drop of a hat, they will lack the incentive to provide quick and 
sufficient access to the Internet.
  The provisions of H.R. 2281 will allow the Internet to flourish and I 
believe will prove to be a win-win not only for both sides, but for 
consumers and Internet users throughout the Nation.
  I would also like to discuss the importance of the World Intellectual 
Property Organization treaties and this accompanying implementing 
legislation which are critical to protecting U.S. copyrights overseas.
  The United States is the world leader in intellectual property. We 
export billions of dollars worth of creative works every year in the 
form of software books, tapes, videotapes and records. Our ability to 
create so many quality products has become a bulwark of our national 
economy, and it is vital that copyright protection for these products 
not stop at our borders. International protection of U.S. copyrights 
will be of tremendous benefit to our economy, but we need to ratify the 
WIPO treaties for this to happen.
  I would like to state for the record my understanding that sections 
102(a)(2) and 102(b)(1) of this bill are not intended to address 
computer system security, such as devices used to crack into computer 
security systems such as firewalls or discover log-on passwords that 
protect an entire system. The ban contained in these provisions is 
intended to cover circumvention devices aimed at technological 
protection measures that protect particular works covered under Title 
17 such as movies, songs or computer programs. Unauthorized hacking 
into computer programs is already covered by other laws.
  This bill is critical not only because it will allow the Internet to 
flourish but also because it ensures that America will remain the world 
leader in the development of intellectual property. I urge each of my 
colleagues to support this legislation.
  Mr. FRANK of Massachusetts. Madam Speaker, I yield 4 minutes to the 
gentleman from Virginia (Mr. Boucher).
  (Mr. BOUCHER asked and was given permission to revise and extend his 
remarks.)

[[Page H7096]]

  Mr. BOUCHER. Madam Speaker, I thank the gentleman from Massachusetts 
(Mr. Frank) for yielding this time to me, and I am pleased to rise 
today in support of the passage of H.R. 2281, which will extend new 
protections against the theft of their works to copyright owners.
  Madam Speaker, new protections are needed due to the ease with which 
flawless copies of copyrighted materials can both be made and 
transmitted in the digital network environment. Essential, however, to 
the creation of new guarantees for copyright owners is the retention of 
the traditional rights of the users of intellectual property. A balance 
has always existed in our law between these conflicting interests, and 
the major challenge in the writing of this legislation is to assure 
that no fundamental altering of that delicate balance takes place.
  Another challenge is to ensure that in the effort to eliminate 
devices that are designed and produced to make illegal copies of 
copyrighted materials, that legitimate consumer electronics products 
are not also placed in a category of legal uncertainty.
  Today I want to offer congratulations primarily to the Members of the 
House Committee on Commerce who have devoted long hours in the effort 
to assure that these challenges are met. Specifically, the Committee on 
Commerce has added provisions that protect personal privacy by clearly 
permitting personal computer owners to disable cookies that are placed 
on their disks by others; that allow the encryption research that will 
lead to a new generation of trusted and secure systems; that give 
equipment manufacturers the certainty that their consumer electronics 
products need not affirmatively accommodate all technological 
protection measures; and that creative procedure for assuring the 
continuation of the fair use rights of the American public, a procedure 
that will prevent material that is generally available today under fair 
use being locked away in a pay-per-use regime in future years.

                              {time}  1400

  Report language also specifies that the technological protection 
measure circumvention restrictions will not apply when manufacturers, 
retailers and technicians need to make adjustments to devices to ensure 
that their performance is not degraded as a consequence of the 
installation of a technological protection measure. These changes, 
taken together, significantly improve the original legislation.
  The gentleman from Virginia (Chairman Bliley), the gentleman from 
Michigan (Mr. Dingell), the gentleman from Wisconsin (Mr. Klug), the 
gentleman from Florida (Mr. Stearns) and the gentleman from 
Massachusetts (Mr. Markey), among others, deserve thanks for their 
successful efforts to create new copyright protections, while ensuring 
that traditional user rights are not undermined.
  The Committee on Commerce has, in the manner for which it is known, 
mastered the intricate details of this complex subject and has produced 
a balanced result. I want to offer my congratulations to all who have 
been involved in that outstanding effort.
  It is my pleasure to urge passage of H.R. 2281.
  Madam Speaker, I will insert in the record correspondence from the 
subcommittee chairman, the gentleman from North Carolina (Mr. Coble), 
to the gentleman from California (Mr. Campbell) and myself, which 
further defines the terminology that is used in the statute.
                                         House of Representatives,


                                   Committee on the Judiciary,

                                    Washington, DC, June 16, 1998.
     Hon. Tom Campbell,
     U.S. Representative for the 15th District of California, 
         Washington, DC.

     Hon. Rick Boucher,
     U.S. Representative for the 9th District of Virginia, 
         Washington, DC.
       Dear Tom and Rick: Thank you for visiting with me in my 
     office recently regarding H.R. 2281, the ``WIPO Copyright 
     Treaties Implementation Act.'' I appreciate the concerns you 
     expressed with respect to H.R. 2281 as it was reported from 
     the House Committee on the Judiciary.
       I expressed to you that I would consider your thoughts and 
     respond to you in detail, and am pleased to do so in this 
     letter.
       I believe that many of your concerns, which are enumerated 
     in your substitute bill, H.R. 3048, have been addressed 
     already in a reasonable manner in amendments to the bill 
     adopted by the Subcommittee on Courts and Intellectual 
     Property and the Committee on the Judiciary in the House and 
     by the Committee on the Judiciary and on the floor in the 
     Senate (regarding the Senate companion bill, S. 2037). Others 
     have been addressed in legislative history in House Report 
     105-551 (Part I) which accompanies the bill, as well as in 
     Senate Report 105-190, which accompanies the Senate companion 
     bill. Still others may be addressed as the House Committee on 
     Commerce exercises its sequential jurisdiction over limited 
     portions of the bill and as I work with interested members on 
     developing a manager's amendment to be considered by the 
     whole House. I anticipate including many of the amendments 
     made by the Senate in the manager's amendment, along with 
     other provisions. I also anticipate that a conference will be 
     necessary to reconcile the House and Senate versions of the 
     bills.
       While I am unable to support the specific provisions of 
     H.R. 3048, for reasons I will explain in this letter, I am 
     willing to work with you in the coming weeks to address 
     additional concerns regarding the impact of this legislation 
     on the application of the ``fair use'' doctrine in the 
     digital environment and on the consumer electronics industry. 
     I wish to stress, however, that I believe the bill, as 
     amended by the House and Senate thus far, and explained by 
     both the House and the Senate Judiciary Committee reports, 
     already addresses these issues in several constructive ways.
       I believe it is important, in order to recognize properly 
     the efforts undertaken by the Congress and the Administration 
     to address the concerns of the consumer electronics and fair 
     use communities, to review the history of H.R. 2281 and to 
     evaluate all of the provisions that have been either added to 
     or deleted from the bill since its development leading to 
     introduction in this Congress. As I am sure you will 
     appreciate, I am sensitive to your concerns and have worked 
     diligently with members and all parties involved to create a 
     balanced and fair proposal that will result in the enactment 
     of legislation this Congress.
       In February, 1993, the Administration formed the 
     Information Infrastructure Task Force to implement 
     Administration policies regarding the emergence of the 
     Internet and other digital technologies. This task force 
     formed a Working Group on Intellectual Property Rights to 
     investigate and report on the effect of this new technology 
     on copyright and other rights and to recommend any changes in 
     law or policy. The working group held a public hearing in 
     November, 1993, at which 30 witnesses testified. These 
     witnesses represented the views of copyright owners, 
     libraries and archives, educators, and other interested 
     parties. The working group also solicited written comments 
     and received over 70 statements during a public comment 
     period. Based on oral and written testimony, the working 
     group released a ``Green Paper'' on July 7, 1994. After 
     releasing the Green Paper, the working group again heard 
     testimony from the public through four days of hearings held 
     around the country. More than 1,500 pages of written 
     testimony were filed during a four-month comment period by 
     more than 150 individuals and organizations.
       In March, 1995, then-Chairman Carlos Moorhead solicited 
     informal comments from parties who had submitted testimony 
     regarding the Green Paper, including library and university 
     groups, and computer and electronics group, in order to work 
     effectively with the Administration on jointly developing any 
     proposed updates to U.S. copyright law that might be 
     necessary in light of emerging technologies.
       In summer, 1995, the working group released a ``White 
     Paper'' based on the oral and written testimony it has 
     received after releasing the Green Paper. The White Paper 
     contained legislative recommendations which were developed 
     from public comment in conjunction with consultations between 
     the House and Senate Judiciary Committees, the Copyright 
     Office and the Administration.
       In September, 1995, Chairman Moorhead in the House and 
     Chairman Hatch in the Senate introduced legislation which 
     embodied the recommendations contained in the White Paper and 
     held a joint hearing on November 15, 1995. Testimony was 
     received from the Administration, the World Intellectual 
     Property Organization and the Copyright Office. The House 
     Subcommittee on Courts and Intellectual Property held two 
     days of further hearings in February, 1996. Testimony was 
     received from copyright owners, libraries and archives, 
     educators and other interested parties. in May, 1996, the 
     Senate Judiciary Committee held a further hearing. 
     Testimony was received from copyright owners, libraries 
     and other interested parties. These hearings were 
     supplemented with negotiations in both bodies led by 
     Representative Goodlatte (as authorized by Chairman 
     Moorhead) in the House and by Chairman Hatch in the 
     Senate. Further negotiations were held by the 
     Administration in late summer and fall of 1996.
       During consideration of the ``NII Copyright Protection Act 
     of 1995,'' Chairman Moorhead requested that Mr. Boucher and 
     Mr. Berman of California lead negotiations between interested 
     parties regarding the issue of circumvention. While these 
     negotiations were helpful in streamlining and clarifying the 
     issues to be discussed, they ultimately did not result in an 
     agreement.
       It is important to note that shortly after its 
     establishment, the Administration task force's working group 
     convened, as part of its consideration, a Conference on Fair 
     Use (CONFU) to explore the effect of digital technologies on 
     the doctrine of fair use, and to

[[Page H7097]]

     develop guidelines for uses of works by libraries and 
     educators. Because of the complexities involved in developing 
     broad-based policies for the adaptation of the fair use 
     doctrine to the digital environment, and due to much 
     disagreement among the participants (including within the 
     library and educational communities), CONFU did not issue its 
     full report until nearly two years after it was convened. An 
     Interim Report was released by CONFU in September 1997 on the 
     first phase of its work. No consensus was reached on how to 
     apply the fair use doctrine to the digital age. In fact, the 
     CONFU working group on interlibrary loan and document 
     delivery concluded in a report to its Chair that it is 
     ``premature to draft guidelines for digital transmission of 
     digital documents.'' The work of CONFU continues today and a 
     final report should be released soon with no agreed 
     conclusions. As you can see, developing sweeping legislation, 
     rather than relying on court-based ``case or controversy'' 
     applications of the doctrine, is exceedingly difficult to do.
       Since before the debate began with the establishment of a 
     task force in the United States in 1993, the international 
     community had also been considering what updates should be 
     made to the Berne Convention on Artistic and Literary Works 
     in order to provide adequate and balanced protection to 
     copyrighted works in the digital age. This culminated in a 
     Diplomatic Conference hosted by the World Intellectual 
     Property Organization at which over 150 countries agreed on 
     changes needed to accomplish this goal.
       This goal was not reached easily, however, and many of the 
     issues being debated by the Administration and the Congress 
     in the United States concerning fair use and circumvention 
     were aired at the Diplomatic Conference, with significant 
     changes made to accommodate fair use concerns and the effect 
     on the consumer electronic industries. Representatives of 
     both groups participated in the Conference and aggressively 
     sought to maintain proper limitations on copyright. They 
     succeeded. For example, language was added to ensure that 
     exceptions such as fair use could be extended into the 
     digital environment. The treaty also originally contained 
     very specific language regarding obligations to outlaw 
     circumvention. It was changed to state that all member 
     countries ``shall provide adequate legal protection and 
     effective legal remedies against the circumvention of 
     effective technological measures that are used by authors in 
     connection with the exercise of their rights under this 
     Treaty.'' This left to each country the development of 
     domestic legislation to accomplish this goal.
       After the United States signed the WIPO Treaties, the 
     Administration again began negotiations led by the Department 
     of Commerce and the Patent and Trademark Office, in 
     consultiation with the Copyright Office and the Congress, to 
     develop domestic implementing legislation for the treaties. 
     It built upon the efforts already accomplished by the release 
     of the Green Paper and the White Paper and all of the 
     testimony and comments heard as part of that process, the 
     House and Senate bills introduced in the 104th Congress and 
     all of the hearing testimony and negotiations associated with 
     them, and the negotiations held by the Administration leading 
     up to and during the Diplomatic Conference. Again, comments 
     were solicited from fair use and consumer electronics groups. 
     In the summer of 1997, the Administration submitted to the 
     Congress draft legislation to implement the treaties. In 
     July, 1997, Chairman Hatch and I introduced the current 
     pending legislation in each house. Importantly, the 
     legislation was tailored to match the treaty language by 
     establishing legal protection and remedies not against any 
     technological measures whatsoever, but only ``against the 
     circumvention of effective technological measures that are 
     used by authors in connection with the exercise of their 
     rights.''
       The fair use and consumer electronics groups succeeded, 
     just as they had at the Diplomatic Conference, in assuring in 
     the introduced version of the bills the maintenance of proper 
     limitations on copyright. The Administration had considered 
     originally banning both the manufacture and use of devices 
     which circumvent effective technological measures and had no 
     specific provision on fair use, since Section 107 of the 
     Copyright Act would, of course, continue to exist after 
     enactment of the legislation. The word ``use'' was eliminated 
     in the device provision and a specific provision relating to 
     the adoption of the fair use doctrine in the digital 
     environment was added.
       As it was introduced, H.R. 2281 contained two important 
     safeguards for fair use. First, the bill dealt separately 
     with technological measures that prevent access and 
     technological measures that prevent copying. As to the 
     latter, the bill contained no prohibition on the act of 
     circumbention itself, leaving users free to circumvent such 
     measures in order to make fair use copies. Second, the 
     savings clause in subsection 1201(d) ensures that defenses to 
     copyright protection, including fair use, are unaffected by 
     the prohibitions on circumvention. For example, circumvention 
     of an effective technological measure that controls access to 
     a work does not preclude, or affect in any way, a defense of 
     fair use for copying the work. Moreover, the bill as 
     introduced did not expand exclusive rights or diminish 
     exceptions and limitations on exclusive rights.
       Again, a series of legislative hearings were held by the 
     House and Senate Judiciary Committees at which testimony was 
     again heard from copyright owners, libraries and archives, 
     educators, consumer electronics groups and other interested 
     parties. In February, 1998, almost five years to the date of 
     the establishment of the Administration's working group, 
     taking into account all of the concessions and negotiations 
     leading up to it, the first markup was finally held in 
     Congress by the Subcommittee on Courts and Intellectual 
     Property on this important legislation. As is evident by the 
     timetable involved in the development of this legislation, 
     and considering the number of hearings, negotiations and 
     conferences dedicated to its contents, this bill certainly 
     has not been placed on any ``fast-track.''
       In the course of Subcommittee and Committee consideration 
     of the bill in the House, the gentleman from Massachusetts, 
     the Ranking Democratic member of the Subcommittee, Mr. Frank, 
     and I, proposed a number of improvements to the bill, which 
     were adopted by the Committee, that benefit libraries and 
     nonprofit educational institutions. We introduced a special 
     ``shopping privilege'' exemption that permits nonprofit 
     libraries and archives to circumvent effective technological 
     measures in order to decide whether they wish to acquire 
     lawfully a copy of the work. We added a provision that 
     requires a court to remit monetary damages for innocent 
     violations of sections 1201 or 1202. And we eliminated any 
     possibility that nonprofit libraries and archives or 
     educational institutions can be held criminally liable for 
     any violation of sections 1201 or 1202, even when such 
     violations are willful.
       These changes add protection to language already included 
     in the bill which safeguard manufacturers of legitimate 
     consumer electronic devices. Unlike the ``NII Copyright 
     Protection Act of 1995,'' which would have prohibited devices 
     ``the primary purpose or effect of which is to circumvent,'' 
     H.R. 2281 sets out three narrow bases for prohibiting 
     devices. A device is prohibited under section 1201 only if it 
     is primarily designed or produced to circumvent, has limited 
     commercially significant use other than to circumvent, or is 
     marketed specifically for use in circumventing. This 
     formulation means that under H.R. 2281, it is not enough for 
     the primary effect of the device to be circumvention. It 
     therefore excludes legitimate multi-purpose devices from the 
     prohibition of section 1201. Devices such as VCRs, and 
     personal computers do not fall within any of these three 
     categories (unless they are, in reality, black boxes 
     masquerading as VCRs or PCs).
       In addition, H.R. 2281 as introduced does not require any 
     manufacturer of a consumer electronic device to accommodate 
     existing or future technological protection measures. 
     ``Circumvention,'' as defined in the bill, requires an 
     affirmative step of ``avoiding, bypassing, removing, 
     deactivating, or otherwise impairing a technological 
     protection measure.'' Language added in the Senate, referred 
     to below, clarified this even further.
       In addition to all of the foregoing, there are a number of 
     amendments that were made in the Senate bill that will be 
     included in the manager's amendment to H.R. 2281. These 
     include:
       An expansion of the exemptions of nonprofit libraries and 
     archives in 17 U.S.C. Sec. 108 to cover the making of digital 
     copies without authorization, for purposes of preservation, 
     security or replacement of damaged, lost or stolen copies;
       An expansion of section 108 to cover the making of digital 
     copies without authorization in order to replace copies in 
     the collection that are in an obsolete format;
       A provision directing the Register of Copyrights to make 
     recommendations as to any statutory changes needed to apply 
     the limitations on liability of online service providers to 
     nonprofit educational institutions that act in the capacity 
     of service providers;
       A provision directing the Register of Copyrights to consult 
     with nonprofit libraries and nonprofit educational 
     institutions and submit recommendations on how to promote 
     distance education through digital technologies, including 
     any appropriate statutory changes;
       A savings provision stating that nothing in section 1201 
     enlarges or diminishes vicarious or contributory liability 
     for copyright infringement in connection with any technology, 
     product, service, device, component or part thereof;
       A provision that states explicitly that nothing in section 
     1201 requires accommodation of present or future 
     technological protection measures;
       A provision to ensure that the prohibition on circumvention 
     does not limit the ability to decompile computer programs to 
     the extent permitted currently under the doctrine of fair 
     use; and
       A provision ensuring that technology will be available to 
     enable parents to prevent children's access to indecent 
     material on the Internet.
       I believe that these are constructive provisions that 
     precisely and carefully address specific concerns you have 
     raised in H.R. 3048. In order to assure that fair use applies 
     in the digital environment, in addition to the above changes, 
     I have also agreed to include in the manager's amendment an 
     amendment to Section 107 of the Copyright Act to make it 
     continue to be technology-neutral with respect to means of 
     exploitation.
       It may be helpful, in addition to discussing what is 
     contained in H.R. 2281 and the Senate companion, and what 
     will be included in the

[[Page H7098]]

     manager's amendment, to raise directly with you some of the 
     identifiable problems I see associated with H.R. 3048 as 
     introduced.
       In my opinion, this extension of the first sale doctrine is 
     antithetical to the policies the doctrine was intended to 
     further. The alienability of tangible property is not at 
     issue, since no tangible property changes hands in a 
     transmission. Further, it does not address specifically the 
     ability to control the after-market for resales of the same 
     copy of a work, since in this case distribution of a work by 
     digital transmission necessarily requires a reproduction--it 
     is not the same copy. The bill's answer to this quandary--
     that the original copy must be destroyed--is unenforceable 
     and certainly not a substitute for disposition of a tangible 
     copy. Destruction involves an affirmative act, generally in 
     the privacy of a home, that is difficult to police and would 
     involve significant invasions of privacy if it were policed 
     effectively.
       Further, regardless of whether the original copy is 
     destroyed, the new copy would be free of contractual or other 
     controls placed on the original copy by the copyright owner. 
     It is also likely that this provision would have a much 
     greater impact on an owner's primary market for new copies of 
     a work than the current first sale doctrine has on the 
     primary market for physical copies. Unlike used books, 
     digital information is not subject to wear and tear. The 
     ``used'' copy is just as desirable as the new one because 
     they are indistinguishable. For this reason, Congress has 
     curtailed the first sale doctrine as it applies to the rental 
     of sound recordings and software in the past, to prevent 
     posing so great a burden on a copyright owner so as to 
     undermine the incentive to create works which is the driving 
     force behind the Copyright Act.
       H.R. 3048 would also broaden Section 110(2) of the 
     Copyright Act so that the performance, display, or 
     distribution of any work (rather than just the performance of 
     a nondramatic literary or musical work and the display of any 
     work) through digital transmission (rather than just through 
     audio broadcasts) would be allowed without the permission of 
     the copyright holder, as long as it is received by students, 
     or by government employees as part of their duties. This 
     broad expansion of the distance learning provisions currently 
     codified in the Copyright Act would permit the transmission 
     of a wide variety of Internet-based or other remote-access 
     digital transmission formats for distance education and 
     raises serious questions about safeguards to prevent such 
     transmissions from unauthorized access. In other words, it 
     may facilitate piracy.
       Both CONFU and the Senate have discussed the intricacies 
     involved in safeguarding transmissions used for distance 
     learning purposes and have agreed that it is premature to 
     enact specific legislation at this time. As discussed 
     earlier, the Senate has included a provision in its companion 
     bill, which I plan to include in the House manager's 
     amendment, that will provide for a study with legislative 
     recommendations on this issue, within a six-month time frame. 
     This study will be better able to address the complex 
     problems I have identified.
       Section 7 of H.R. 3048 would amend Section 301(a) of the 
     Copyright Act to preempt enforcement of certain license terms 
     under state law. Specifically, it would preempt any state 
     statute or common law that would enforce a ``non-negotiable 
     license term'' governing a ``work distributed to the public'' 
     if such term limited the copying of material that is not 
     subject to copyright protection or if it restricted the 
     limitations to copyright contained in the Copyright Act. In 
     effect, it would prohibit standard form agreements, used in 
     the context of copies distributed to the public, that purport 
     to govern use of noncopyrightable subject matter or limit 
     certain exceptions and limitations, such as fair use.
       The use of standard form licensing agreements has become 
     prevalent in the software and information industries, as 
     owners seek to protect their investment in these products 
     against the risk of unauthorized copying. Section 7 would 
     result in destroying the ability of the producer of a work to 
     create specific licenses tailored to the circumstances of the 
     marketplace, or, in the case of factual databases and other 
     valuable but noncopyrightable works, destroy the most 
     significant form of protection currently available. This 
     could result, for example, in the loss of crucial revenues to 
     stock and commodity exchanges who rely on such contracts to 
     disseminate information.
       Attempts to introduce language similar to Section 7 of H.R. 
     3048 into Article 2B of the Uniform Commercial Code (UCC) 
     have been rejected repeatedly by the UCC Article 2B Drafting 
     Committee on several occasions. The National Conference of 
     Commissioners on Uniform State Laws also rejected a proposal 
     similar to the one you propose as has the American Law 
     Institute. I agree with these bodies that restricting the 
     freedom to contract in the manner proposed in H.R. 3048 would 
     have a negative effect on the availability of information to 
     consumers.
       H.R. 3048 also proposes several changes to Section 108 of 
     the Copyright Act regarding archiving and library activities. 
     As you are aware, library groups and copyright owners have 
     come to an agreement regarding changes in this section to 
     update the Act for the digital environment and those changes 
     were incorporated by the Senate in the companion bill. I will 
     include those same provisions in the manager's amendment in 
     the House.
       Finally, the new Section 1201 contained in H.R. 3048 would 
     not prohibit manufacturing or trafficking in devices 
     purposely created to gain unauthorized access to copyrighted 
     works, and insofar as it prohibits conduct, would permit 
     circumvention in the fist instance for purposes of fair use. 
     In other words, H.R. 3048, as I discussed earlier, would 
     grant to users a right never before allowed--free access to 
     copyrighted works in order to make a fair use. I believe that 
     is unwise policy and tilts the balance away from the 
     protection of works in a free market economy toward the free 
     provision of works to anyone claiming to make a fair use. 
     This would, I believe, ultimately lead to much more 
     litigation against libraries and others who lawfully engage 
     in fair use and ultimately would diminish the number of works 
     made available over new media.
       While it would be impossible to communicate to you all of 
     the problems contained in the exact language of H.R. 3048, I 
     wanted to, in truncated form, reveal my serious concerns with 
     the bill. In its current form, for the above reasons and 
     others, I would oppose it as a substitute to H.R. 2281, as 
     amended. I remain dedicated, however, to working with you, as 
     I have in the past, to address your concerns in a reasonable 
     manner that will result successfully in changes to our 
     nation's copyright law that will benefit both owners and 
     users of works.
       I truly believe that we are at the beginning of a long 
     process of addressing adaptation to the digital environment. 
     It is not possible at this point to enact legislation that 
     will contemplate all uses of a work and, as CONFU members 
     aptly point out, many will have to be addressed as we move 
     forward. I am committed, however, to preserving fair use in 
     the digital age and thank you for your valuable and 
     continuing insight and interest.
           Sincerely,

                                                 Howard Coble,

                                  Chairman, Subcommittee on Courts
                                        and Intellectual Property.

  Mr. BLILEY. Madam Speaker, I yield one minute to the gentleman from 
Colorado (Mr. Dan Schaefer).
  (Mr. DAN SCHAEFER of Colorado asked and was given permission to 
revise and extend his remarks.)
  Mr. DAN SCHAEFER of Colorado. Madam Speaker, I thank the gentleman 
for yielding me time.
  Madam Speaker, the webcasting is a new use of the digital works this 
bill deals with, and even most recent copyright amendments in 1995 do 
not really address it clearly. Under current law it is difficult for 
webcasters and record companies to know their rights and their 
responsibilities for negotiating new licenses. This provision makes it 
clear what each party must do and sets a statutory licensing program to 
make it as easy as possible to comply with.
  I want to thank the gentleman from Washington (Mr. White) and the 
gentleman from North Carolina (Mr. Coble) for working with them to make 
sure this was all included, and I strictly urge my colleagues to 
carefully respect and preserve the delicate compromise that we have 
worked so hard to agree on as we move through this legislative process 
in the conference committee.
  Mr. COBLE. Madam Speaker, I yield 1\1/2\ minutes to the gentleman 
from Florida (Mr. Foley), the chairman of the House Entertainment Task 
Force.
  Mr. FOLEY. Madam Speaker, I thank the chairman and also all the 
Members who have participated in this very, very important debate, and 
particularly the leadership, the gentleman from Georgia (Mr. Gingrich), 
the gentleman from Texas (Mr. Armey), and others who have helped bring 
this platter to the floor today for full and fair debate.
  Businesses and industries that depend on copyright protection, 
including publishing, music and recording, film and video and computer 
software companies, are among the fastest growing segment of our 
society. These creative industries contribute nearly $280 billion to 
the gross domestic product yearly and provide jobs for some 3.5 million 
Americans. Moreover, they are among our biggest export earners, 
accounting for some $60 billion in foreign sales.
  What has been plaguing this huge and important industry is piracy, 
the outright theft of copyrighted works. Not piracy on the high seas, 
it is today's version, piracy on the Internet. American companies are 
losing nearly $20 billion yearly because of the international piracy of 
these copyrighted on-line works, and that is what this bill helps to 
stop.
  It has been a long process which has been carefully and thoughtfully 
negotiated. What we now have is a balanced

[[Page H7099]]

measure that protects both the interests of the users and the 
consumers, and the property rights of the creators.
  As chairman of the Entertainment Industry Task Force, I know how 
important the enactment of this bill is to one of America's most 
promising industries. I would like it thank the chairman of the 
Committee on the Judiciary, the chairman of the Committee on Commerce, 
the gentleman from North Carolina (Mr. Coble) and others who have 
worked tirelessly on this effort, as well as Members of the other side 
of the aisle, the gentleman from Massachusetts (Mr. Frank) and others, 
who have taken into consideration all the concerns of both the users 
and end users of the product, as well as those who provide the 
intellectual content, if you will, to striking what is a fair balance 
for Americans, a fair balance for consumers, but, more importantly, 
will allow the very appropriate and important works to be put on the 
Internet for future generations to come.
  Mr. FRANK of Massachusetts. Madam Speaker, I yield three minutes to 
the gentleman from California (Mr. Berman).
  Mr. BERMAN. Madam Speaker, this day has been a long time coming. 
Going back nine years as the technological capacity to make 
unauthorized copies of copyrights works was rapidly expanding, some of 
us anticipated the need to enact legislation to protect technological 
measures used by copyright holders to protect their works.
  Last Congress, our former colleagues, Carlos Moorehead and Pat 
Schroeder, laid further groundwork for today's WIPO bill with their 
efforts to enact national information infrastructure legislation. Then 
in December 1996, the U.S. victory that produced two new international 
treaties, made the enactment of implementing legislation an urgent 
task.
  Today, under the leadership of the gentleman from North Carolina (Mr. 
Coble) and the gentleman from Massachusetts (Mr. Frank), the gentleman 
from Illinois (Mr. Hyde) and the gentleman from Michigan (Mr. Conyers), 
our efforts have come top fruition.
  Passage of this bill is essential to implementation of the treaties 
around the world. Our leadership is necessary in order to gain passage 
of the treaties in other countries where the standards for intellectual 
property is much lower than our own.
  Make no mistake, American intellectual property and the almost 
unsurpassed contribution it makes to our balance of trade is at risk 
around the world. Piracy costs American creators $15 billion in sales. 
In a digital era which brings the capacity to make perfect copies of 
copyrighted works, we must enact this legislation to fight overseas 
piracy and the toll it takes in export revenues and American jobs.
  Madam Speaker, I think the gentleman from Massachusetts (Mr. Frank) 
had it right. In the context of trying to protect this property, we 
needed to come to reasonable balances with providers of these services, 
with people who have legitimate interests in the fair use. This is, at 
least at this particular point, the best effort we can make to try to 
come to those kinds of balances and still provide the essential 
protection that this bill provides. I urge its adoption.
  Mr. BLILEY. Madam Speaker, I yield such time as he may consume to the 
gentleman from Michigan (Mr. Dingell).
  (Mr. DINGELL asked and was given permission to revise and extend his 
remarks.)
  Mr. DINGELL. Madam Speaker, I thank my good friend for yielding to 
me.
  Because of an act of extraordinary lack of comity of the part of the 
managers of the bill on this side, and because of some extraordinary 
discourtesy, the Committee on Commerce has not been afforded our share 
of the time on this bill. I am therefore compelled to request time from 
the Republicans for this unanimous consent request. I express my 
thanks.
  I hope that the next time our two committees deal with each other, 
there will be more courtesy shown by the Committee on the Judiciary. I 
intend to remember this event.
  Mr. DINGELL. Mr. Speaker, I rise in support of H.R. 2281, the 
``Digital Millennium Copyright Act,'' and I urge my colleagues to join 
me. This legislation is vitally important to the livelihoods of 
authors, musicians, filmmakers, software developers, and countless 
other creators of copyrighted works. However, just as important, this 
bill will preserve the legal right of information consumers to make 
``fair use'' of copyrighted works just as they have done for over one 
hundred years.
  Why is this treaty and its implementing legislation important? The 
digital age has vastly improved the quality of these works that we all 
enjoy. Today limitless copies can be made with virtually no reduction 
in quality. Unfortunately, these improvements in technology do not come 
without a cost. Piracy of copyrighted works, particularly overseas, has 
increased dramatically, and copyright owners are desperately in need of 
additional protection to protect their property from thieves who 
increasingly prey on their creative ingenuity.
  However, there is another side to this story. As copyrighted works 
are afforded more protection, they will be encrypted in ``digital 
wrappers'' that make them impenetrable to anyone other than those who 
are willing to pay the going rate. While that may sound like the 
American way, it is not. United States copyright law historically has 
carved out important exceptions to the rights of copyright owners to 
have exclusive control over the use of their property.
  The most notable exception is ``fair use.'' Libraries and 
universities, for example, are permitted to freely use portions of 
copyrighted works legally for research and study. This practice has 
been a bedrock of our copyright law for over a century. Both Congress 
and the courts repeatedly have recognized this important balance in the 
law between the right of copyright owners to be compensated for their 
efforts, and the right of information consumers to use these works in 
limited ways to increase knowledge and understanding for the benefit of 
our whole society.
  We can now take great comfort in the fact that H.R. 2281 will 
continue to recognize this important balance. The ``fair use'' debate, 
though heated at times, was negotiated to an acceptable conclusion in 
the Commerce Committee, and this key compromise between the content and 
``fair use'' communities is reflected in the bill on the floor today. 
Other critical matters were also resolved, such as protecting consumer 
privacy interests, electronic device manufacturing, and encryption 
research.
  I would like to commend my good friend from Virginia, Chairman 
Bliley, for his fine work on this bill. In addition, I would also like 
to give special thanks to Mr. Boucher and Mr. Klug who contributed so 
much to the resolution of the ``fair use'' issue, as well as Mr. Markey 
and Mr. Tauzin for their important efforts. Also, special thanks goes 
to all the staff who worked so hard on this legislation, in particular 
Justin Lilley with the Commerce Committee majority, Andy Levin and Kyra 
Fischbeck with the Commerce Committee minority, Ann Morton with Mr. 
Boucher, Kathy Hahn with Mr. Klug, Whitney Fox with Mr. Tauzin, and 
Colin Crowell with Mr. Markey, to name just a few.
  Thank you, Mr. Speaker. I yield back the balance of my time.
  Mr. BLILEY. Madam Speaker, I yield one minute to the gentleman from 
Ohio (Mr. Oxley).
  (Mr. OXLEY asked and was given permission to revise and extend his 
remarks.)
  Mr. OXLEY. Madam Speaker, I rise in strong support of H.R. 2281, the 
WIPO enabling legislation. I want to pay special tribute to the 
chairman of the full committee, the gentleman from Virginia (Mr. 
Bliley), as well as the gentleman from Illinois (Chairman Hyde), for 
their work as well, as my good friend the gentleman from Michigan (Mr. 
Dingell) on the other side of the aisle.
  The digital revolution presents special opportunities and special 
challenges for copyright holders and users of copyrighted works. 
Working with the Committee on the Judiciary, I think we put together a 
bill that we can all be proud of that deals with issues like fair use, 
encryption research and temporary and ephemeral copies.
  This legislation will extend copyright protections for intellectual 
property into the digital age, while simultaneously protecting fair use 
of such works. It will provide an important foundation for the growth 
of electronic commerce on the Internet.
  The bill also includes an important provision preserving the 
authority of the SEC over the mechanisms by which the public obtains 
information about our securities markets, including stock quotes. This 
ensures that the commission will be able to ensure that investors have 
ready access to the information they need to make their investment 
decisions.

[[Page H7100]]

  I again thank the work of both the Committee on Commerce and the 
Committee on the Judiciary for bringing us where we are today.
  Mr. FRANK of Massachusetts. Madam Speaker, I yield myself such time 
as I may consume.
  Madam Speaker, I had intended to stick to the merits, but I did want 
to respond to the ranking member of the Committee on Commerce. 
Unfortunately, the public got a look at some of the turf battles that I 
do not think serve us very well.
  The gentleman made some reference to comity. I do not know how that 
was spelled. But had the gentleman wanted me to yield him some time, I 
would have been glad to do it. I did not, because I had not been 
instructed by the ranking member of my full committee to split the time 
in terms of control. But I am glad to yield time to anyone who wants. 
Indeed, I yielded four minutes right away to the gentleman from 
Virginia. Now, the gentleman serves on both the Committee on the 
Judiciary and the Committee on Commerce, but he used his four minutes 
for a tribute to the work of the Committee on Commerce that was lyrical 
in its composition, and I am sure will go down in the annals as one of 
the best tributes to a committee ever given.
  So, at this point I would reserve the balance of my time, but if 
Members want to speak, I would be glad to yield them time.
  Mr. BLILEY. Madam Speaker, I yield one minute to the gentleman from 
Wisconsin (Mr. Klug), who did an extraordinary amount of work on this 
piece of legislation.
  Mr. KLUG. Madam Speaker, I thank the gentleman for yielding me time.
  Madam Speaker, we have in front of us a very difficult balancing act, 
essentially trying to protect the American creative community across 
the world, people who make movies and television shows, book publishers 
and the recording industry. But in an era of exploding information, we 
also have to guarantee access to libraries and also university 
researchers, to make sure we do not enter a new era of pay per view, 
where the use of a library card always carries a fee and where the flow 
of information comes with a meter that rings up a charge every time the 
Internet is accessed.
  Today we have a reasonable compromise in front of us, and I want to 
thank the gentleman from Virginia (Mr. Bliley) and the gentleman from 
Michigan (Mr. Dingell) for their leadership.
  If I also could indulge the committee to single out several other 
people, Justin Lilley of the committee staff, Kathy Hahn of my staff, 
for working so hard on this compromise, and in particular the support 
of my colleague, the gentleman from Virginia (Mr. Boucher). I urge 
adoption of the bill.
  I rise in support of H.R. 2281, the Digital Millennium Copyright Act 
of 1998 and request permission to revise and extend my remarks and to 
submit additional materials into the record.
  I especially want to acknowledge the many significant contributions 
that the Commerce Committee has made to this bill, under the leadership 
of Chairmen Bliley and Tauzin and Representatives Dingell and Markey, 
and Justin Lilly, Kathy Hahn on my staff.
  The bill that came to the Commerce Committee for consideration was a 
flawed bill in a number of respects: Most important, it created a flat 
prohibition against circumventing ``technological protection measures'' 
for any reason.
  This original prohibition passed by the Judiciary Committee sharply 
skews the balance in favor of copyright owners. It would have required 
each user of information to negotiate with the copyright owner for 
access to information. I assume that the copyright owner would grant 
that permission, but would extract a price in exchange.
  The Copyright Clause of the Constitution grants a limited preference 
to copyright owners. But this clause has consistently been interpreted 
to grant an incentive for the purposes of advancing knowledge or, in 
the words of the Constitution, ``to promote the Progress of Science and 
the Useful Arts.''
  This incentive has always been interpreted to be of secondary 
importance to ``allow the public access to the products of genius.''
  As the New York Times noted recently:

       As Congress fashions ways to protect commercial interests 
     in the digital realm, it must be careful also to protect the 
     larger public interests in broad access to information. * * * 
     The law does not allow a creator to control who looks at the 
     material or prevent the material from being circulated or 
     lent to others. It specifically allows the ``fair use'' of 
     copyrighted materials for commentary, criticism, teaching, 
     news reporting, scholarship and research under certain 
     circumstances without permission from the copyright owner.

  And, as the Washington Post notes this morning:

     this transition to a pay-per-view world, * * * works fine for 
     the entertainment industries and the commercial market. Where 
     it doesn't work is in libraries and other places where use of 
     books and research material is not pay-per-view but, till 
     now, free.

  The Commerce Committee corrected this automatic transition to a pay-
per-view world by creating an exception for persons having gained 
lawful access who are or are likely to be adversely affected by the 
prohibition. In interpreting ``lawful access'', it is my hope that this 
term is broadly construed to include students at a university, patrons 
in a library, and investigative journalists who obtain critical 
information, among others.
  Unlike the version reported by the Judiciary Committee, the approach 
taken by the Commerce Committee and reflected in the bill before us not 
only is an appropriate balance between the rights of copyright owners 
and users of information, it is also strongly supported by the treaty 
preamble that recognizes, ``the need to maintain balance between the 
rights of authors and the larger public interest, particularly 
education, research, and access to information.''
  I also want to single out several other important contributions of 
the Commerce Committee. We have clarified that product designers and 
manufacturers should be able to design their products based on consumer 
demand. In so doing, we have eliminated any ambiguity or presumption 
that products must be designed to affirmatively respond to or 
accommodate any technological measures. It also ensures that lawyers, 
judges and juries do not become the principal designers of consumer 
products in this country. In the end, this language ensures that 
product designers and manufacturers will have the freedom to innovate.
  As a related matter, consumers will continue to expect that the 
products they buy will perform to expectations, whether that be high 
resolution on high definition television or sound on-key for compact 
disks and digital video disks. Nothing in this bill, as clarified by 
the Commerce Committee in its report, should be read as interfering 
with a product manufacturer, designer, or retailer's ability to adjust 
any product that is experiencing material distortions caused by 
technological measures. We have an obligation up here to protect 
consumer interests, and ensuring that products play as promised is a 
critical step for consumer protection.
  The compromise that is before us today is a thoughtful, well-crafted 
approach to a complicated problem. I not only urge my colleagues to 
vote for this compromise legislation, I strongly urge Chairman Hyde to 
adhere to this compromise language in its entirety, not just today, but 
when the House meets in conference with the Senate.
  Mr. FRANK of Massachusetts. Madam Speaker, I yield myself such time 
as I may consume.
  Madam Speaker, I did want to say that the ranking member of the full 
Committee on the Judiciary, the gentleman from Michigan (Mr. Conyers), 
is in Michigan today because it is primary day in Michigan, and only 
that kept him from being here. The gentleman has been for a long time 
now one of the staunchest advocates of intellectual property rights. He 
is a man who has a great feel for American culture, and fully 
understands the role of intellectual property correctly understood in 
fostering our cultural traditions.
  So I did want to express the strong support of the gentleman from 
Michigan and note that his leadership in this was very, very important, 
and to explain his absence as being due entirely to the fact that he 
had to be in Michigan for his primary.
  Mr. BLILEY. Madam Speaker, I yield one minute to the gentleman from 
Washington (Mr. White), who also put in a lot of work on this piece of 
legislation.
  Mr. WHITE. Madam Speaker, I thank the chairman for yielding me time.
  Madam Speaker, pretty much no matter what we do, this bill would be a 
big win for our country, because what this bill does in essence is it 
implements a treaty under which the rest of the world finally adopts 
our view of intellectual property. That is a big win for the United 
States.
  But we also have the advantage that this bill actually turned out to 
be a pretty good bill, thanks to the gentleman from Virginia (Chairman 
Bliley) and the gentleman from North

[[Page H7101]]

Carolina (Chairman Coble), the gentleman from Illinois (Chairman Hyde), 
and many of the other people who worked on it.
  The thing I like the most about it is that it moves intellectual 
property protection into the digital age. I was proud to play a small 
part in improving the bill. We adopted a special program for 
webcasting, this is broadcasting on the Internet. We will now have 
clear rules for how those sorts of things are supposed to be done.
  I think this should be a day when all of us are very pleased that we 
are moving through the House a bill that will make big progress around 
the world for intellectual property, which is a big improvement for 
things in the United States.
  Mr. BLILEY. Madam Speaker, I yield one minute to the gentleman from 
Florida (Mr. Stearns), a member of the committee.
  (Mr. STEARNS asked and was given permission to revise and extend his 
remarks.)
  Mr. STEARNS. Madam Speaker, I also rise in support of the bill and 
compliment our chairman, the gentleman from Virginia (Mr. Bliley), and, 
of course, I compliment my good friend the gentleman from North 
Carolina (Mr. Coble), for their activities.
  I participated in some of the areas dealing with technological 
protection measures, defining this actually: The no-mandate provision, 
which makes clear that manufacturers need not design their products to 
respond to any particular technological protection measure was included 
in the report; language to the compromise on ``fair use'' which seeks 
to protect consumers from a pay-per-view world in the digital area; 
and, three, provisions ensuring activities important to our economy and 
national security such as reversed engineering and encryption research 
will not be stifled by the new prohibition on circumventing 
technological protection measure.
  I appreciate also the gentleman from Virginia (Mr. Boucher), who was 
very helpful and diligent in approving our amendments and working 
together. I recognize his efforts, and I rise in strong support of the 
bill.
  Mr. Speaker, I rise in support of the final legislative product to 
implement the World Intellectual Property Organization Treaty to 
provide legal protection to the millions of American copyright holders 
and American companies.
  I would also like to congratulate the efforts and the hard work of 
the key players to forge a compromise and bring this bill to the floor: 
Chairman Bliley of the Commerce Committee and Chairman Coble of the 
Intellectual Property Subcommittee deserve particular praise.
  It has been a long and hard process to get us to this point. I had 
numerous concerns with the original bill that I believed needed 
correction.
  During consideration of H.R. 2281, the Commerce Committee heard from 
many concerned groups including libraries, educators, researchers, 
consumer groups, advocates for families such as Eagle Forum and the 
Christian Coalition, and representatives of manufacturers of legitimate 
consumer electronics products. All of these groups raised legitimate 
concerns which the Commerce Committee has sought to address.
  The bill we consider today represents many hours of debate and 
compromise.
  It is not a perfect solution, but it includes important provisions 
designed to protect consumers and legitimate manufacturers of consumer 
electronics while providing important new protections to copyright 
owners so that their works may thrive in the digital environment.
  Among the important provisions in the legislation are:
  (1) The ``no mandate'' provision which makes clear that manufacturers 
need not design their products to respond to any particular 
technological protection measure;
  (2) The compromise on ``fair use'' which seeks to protect consumers 
from a ``pay-per-view'' world in the digital era; and
  (3) Provisions ensuring that activities important to our economy and 
national security such as reverse engineering and encryption research 
will not be stifled by the new prohibition on circumventing 
technological protection measures.
  I would also like to note that during consideration of the WIPO 
legislation in the Commerce Committee, I had joined with my good friend 
from Virginia, Mr. Boucher, in offering an amendment that would have 
defined the term ``technological protection measure,'' because such a 
definition was lacking in the original bill.
  Mr. Boucher and I worked diligently to improve our amendment and to 
seek a compromise position for a definition that would have enjoyed the 
support of the content community, as well as from the product 
manufacturers. We succeeded.
  In order to push the bill forward and out of the Commerce Committee, 
we agreed to withdraw the amendment in exchange for Chairman Bliley's 
support of report language that would have expanded on the proper 
definition of a ``technological protection measure.''
  Although I believe the bill could have been further improved had we 
had the chance to define this term before bringing the bill to the 
floor, I believe the report of the Commerce Committee very clearly 
identifies the types of technological protection measures which are 
entitled to the special protections of this legislation.
  In addition, I am confident that the federal courts that consider the 
meaning of the term ``technological protection measure'' will find 
sufficient guidance in the Commerce Committee's report.
  I thank Chairman Bliley for following through on his commitment and 
allowing such report language to be drafted, inserted, and negotiated 
with the Judiciary Committee.
  I ask unanimous consent that my extended and revised remarks appear 
in the Record as if spoken.
  Mr. BLILEY. Madam Speaker, I yield one minute to the gentleman from 
Massachusetts (Mr. Markey).

                              {time}  1415

  Mr. MARKEY. Madam Speaker, I thank the gentleman for yielding me the 
time.
  I want to congratulate all of the Members who have worked on this 
legislation, Madam Speaker. As the digital revolution sweeps over 
countries and industries, we are going to see a dramatic change in the 
nature of the American economy, because we are the clearcut leader in 
the post-GATT post-NAFTA world.
  As we cut this implicit deal with the American people where we are 
going to let the low-end jobs go, it is critical for us to garner the 
lion's share of the high-end jobs. We are the world's leader in 
software, without question. In these computer, movie, books, video 
areas, we are the unquestioned dominant leader. It is our job to make 
sure that we construct treaties, laws, that protect our high end, our 
products that are related to the high education level which we are 
giving the citizens of the United States.
  Built into this law are protections for the privacy of Americans, as 
well. We do not want corporations being able to insinuate themselves 
into the privacy of Americans, finding out where they go, what they do, 
as they use these new software technologies.
  I think we have struck a nice balance, which is going to give 
marketplace incentives to industries to ensure that individuals have 
the knowledge on information that is being gathered about them, know 
that it may be reused, but also have the right to say no. I think it is 
going to be a good compromise forged.
  I urge a very strong yes for all Members of Congress on this very 
important piece of legislation.
  Mr. FRANK of Massachusetts. Madam Speaker, I yield myself such time 
as I may consume.
  I am glad to turn away from the turf battles, which are to be of 
interest to no one outside this Chamber and very few inside, to talk a 
little more about substance.
  Madam Speaker, I said earlier that one of the things I liked about 
this bill was that we reversed or at least stopped this trend to 
impinge on free speech. We have reduced the tendency to restrict speech 
which is electronically transmitted to a lesser degree of 
constitutional protection. But this is not the only bill relevant. I 
want to talk here about the danger in some other legislation of our 
continuing the unfortunate tendency of holding electronically 
transmitted speech to a lesser standard of protection.
  I am told working its way through this body is legislation which 
would deny Federal aid to libraries and schools which do not impose 
various kinds of filtering devices on their own equipment. That it 
seems to me a very grave error. Of course, it makes a mockery of this 
profession of respect for States' rights which we occasionally hear, 
particularly when those who claim to be for States' rights do not like 
what the States are doing.
  But the notion that we would impose a Federal judgment on schools and 
libraries, and make them use this very

[[Page H7102]]

admittedly imperfect technology of filtration so that they would be 
less than fully free in what they gave people, is an example of this 
unfortunate tendency to say that electronically transmitted speech has 
a lesser order of protection.
  I hope no one would propose that Congress would say libraries would 
not get any money unless they censored books, unless they censored 
public speeches. Why, then, do we insist, and I hope we do not, that 
libraries can only get Federal funds if they agree to censure their 
electronic devices?
  We already passed as part of the Telecommunications Act something 
called the Communications Decency Act, which was stricken by a 9 to 
nothing vote in the Supreme Court as unconstitutional. Indeed, some of 
the most ardent defenders of free speech during the campaign finance 
debate enthusiastically supported this, which was obviously 
unconstitutional at the time, and the Supreme Court held it to be.
  I would just say in closing, Madam Speaker, that while I am pleased 
that here we took great pains to protect intellectual property while 
avoiding giving any additional incentive to censor, we may be undoing 
that in other pieces of legislation.
  I would urge my colleagues to follow elsewhere the guide that I think 
we have set forth here: Do not adopt restrictions on electronically 
transmitted speech that we would not apply to written speech and to 
oral speech, to newspapers, to magazines, to theater, to other forums 
of public debate.
  As this society continues to increase the percentage of our 
communication with each other that is electronically transmitted, it is 
essential that we give electronically transmitted speech the same high 
degree of protection from censorship and regulation that we give other 
speech, or we will be a less free society in consequence.
  Madam Speaker, I reserve the balance of my time.
  Mr. BLILEY. Madam Speaker, I yield 1\1/2\ minutes to the gentleman 
from Michigan (Mr. Knollenberg).
  (Mr. KNOLLENBERG asked and was given permission to revise and extend 
his remarks.)
  Mr. KNOLLENBERG. Madam Speaker, I thank the chairman for being so 
gracious in relinquishing that time. I will not take all of it.
  I will say, Madam Speaker, that I rise in full support of this bill. 
I want to thank the gentleman from North Carolina (Mr. Coble) for his 
work in helping bring about the confection of this language. Included 
in the bill is a provision that I introduced to ensure that a computer 
owner may authorize the activation of their computer by a third party 
for the limited purpose of servicing computer hardware components. The 
bill provides language that authorizes third parties to make such a 
copy for the limited use of servicing computer hardware, the hardware 
components.
  This provision does nothing to threaten the integrity of the 
Copyright Act, and maintains all the protections under the Act. The 
intent of the Copyright Act is to protect and encourage a free 
marketplace of ideas. However, without this provision, it hurts the 
free market by preventing the ISOs from servicing computers. 
Furthermore, it limits the computer users' choice of who can service 
their computer and how competitive a fee can be charged.
  Again, I want to thank the gentleman from North Carolina (Mr. Coble) 
for all of his work in helping us along on this.
  Mr. COBLE. Madam Speaker, I yield myself such time as I may consume.
  Madam Speaker, I thank everybody who has contributed to this exercise 
today. The creative ingenuity of the people of this country is 
responsible for our identification, culture, and not insignificantly 
large trade surplus. This has only come about because this country, 
through the work of the congressional judiciary committees down through 
the years, has enacted laws which protect intellectual property.
  Our Founding Fathers, Madam Speaker, knew that a constitutional 
protection would be necessary in order to encourage Congress to create 
an incentive for creators. I am proud that this Congress and our 
subcommittee on the Committee on the Judiciary specifically have stood 
up for property rights of all kinds, both real property and 
intellectual property. I urge passage of the bill.
  Madam Speaker, I reserve the balance of my time.
  Mr. FRANK of Massachusetts. Madam Speaker, I yield the balance of my 
time to the gentleman from California (Mr. Dreier), and hope that he 
will remember me when he becomes chairman.
  The SPEAKER pro tempore (Mrs. Emerson). The gentleman from California 
(Mr. Dreier) is recognized for 2 minutes.
  Mr. DREIER. Madam Speaker, I appreciate the gentleman yielding time 
to me, and I will, as we have amendments that conceivably could come 
forward from the gentleman from Massachusetts next year, consider them. 
I very much appreciate his acknowledging that I will be chairman next 
year.
  Madam Speaker, let me rise in very strong support of this agreement. 
One of the most troubling aspects to this issue of global trade which 
is very important to the survival of our economy has been the issue of 
piracy. When we look at the impact that this has had on the 
entertainment industry and the biotechnology industry in my State of 
California, it is very, very troubling.
  When we have ideas that emanate from individuals, the right to make 
sure that that is their property must be ensured. This WIPO agreement 
is in fact the best hope that we have to ensure that it will be 
acknowledged.
  I simply rise to congratulate my friends who have been involved in 
this, the gentleman from North Carolina (Mr. Coble), the gentleman from 
Illinois (Mr. Hyde), and of course, the Committee on Commerce, under 
the able leadership of the gentleman from Virginia (Mr. Bliley), and a 
wide range of individuals in other industries, and of course, the 
gentleman from Massachusetts (Mr. Frank).
  This is a very important agreement, and I urge my colleagues to 
strongly support it.
  Mr. BLILEY. Madam Speaker, I yield myself such time as I may consume.
  Madam Speaker, I urge adoption of the bill.
  Mr. COBLE. Madam Speaker, I yield myself such time as I may consume.
  Madam Speaker, I want to say to the gentleman from California, he 
said he would remember the gentleman from Massachusetts (Mr. Frank). I 
hope he remembers that both of us worked to accommodate him today when 
he has the gavel in his hand next year.
  Finally, this has obviously been a team effort, Madam Speaker. 
Oftentimes we hear charges accusing us of being a do-nothing Congress. 
I think this piece of legislation today pretty well refutes that 
charge. Much good has been done in this session of the Congress, and 
today has been no exception. I thank everyone again for having 
contributed very favorably to this dialogue today.
  Mr. HASTERT. Mr. Speaker, I am proud to rise in support of H.R. 2281, 
the Digital Millennium Copyright Act.
  I am very pleased that Chairmen Bliley, Hyde, Coble and Tauzin were 
able to reach a compromise on this bipartisan bill.
  We all know that the strength of our copyright laws is fundamental to 
making our economy a success, while also allowing ``fair use'' of 
protected works for the common good.
  Just because an authorized product is in a digitized form, we should 
not hinder a child's learning at St. Charles Public Library, or 
complicate an academic's research at Northern Illinois University, or 
prevent a high-tech engineer in Illinois from improving innovative 
products.
  Specifically, this legislation includes new terminology vital to 
better resolving the issues ahead of us. The bill language on . . . 
``no mandates on design'' . . . . reverse engineering'' . . . 
``playability'' . . . and ``definition of protection measures'' . . . 
will provide the framework for continuing the proper balance in the 
law.
  By adopting these new terms, we can anticipate future policy 
concerns, and create a fair and balanced approach to solving the 
questions of the digital revolution.
  Ms. SLAUGHTER. Mr. Speaker, I rise in support of H.R. 2281, the 
Digital Millennium Copyright Act, which would raise the international 
standards of copyright protection so that we can help combat the 
devastating losses to American companies that are being caused by the 
international piracy of copyrighted works.
  As Chair of the Congressional Member Organization for the Arts, I am 
greatly concerned about the grave effects of copyright violations on 
America's artists, writers, and software engineers. The dramatic growth 
of the Internet is

[[Page H7103]]

providing us with tremendous new opportunities for electronic commerce 
and communication. But these same technological developments also carry 
significant risks, especially in the area of international copyright 
piracy. Today, American companies are losing $18-20 billion annual 
because copyrighted works can be stolen and distributed around the 
world by anyone capable of using a computer.
  This legislation protects our nation's movie producers, record 
makers, and software designers from being forced to absorb more of 
these losses. At the same time, it protects lawful use of materials by 
classrooms and libraries, and allows individuals who perform encryption 
research to continue with their work. However, it does prohibit the 
sale, manufacture and use of devices and component parts that are 
specifically designed to gain unauthorized access to copyrighted works. 
It also addresses the issue of online service provider liability, 
incorporating language based on a compromise that has been reached 
among groups on all sides of the debate.
  I urge my colleagues to vote yes on passage of H.R. 2281 so that we 
can protect the work of our nation's talented individuals from 
copyright violations while encouraging the growth of electronic 
commerce.
  Mrs. MORELLA. Mr. Speaker, although the Commerce Committee changes to 
H.R. 2281, the WIPO Copyright Treaties Implementation Act, vastly 
improved the bill from the original Judiciary Committee passed version, 
I am still deeply troubled that H.R. 2281 is being considered on the 
suspension calendar. As I indicated in a July 31 letter to the Majority 
Leader, signed by several other Members of the House, I was very 
interested in offering a distance education amendment to H.R. 2281 that 
has the support of every educational group, from the National Education 
Association to the National Center for Home Education.
  As we enter the 21st Century, distance education will play an even 
more pivotal role in educating our children, and those individuals 
interested in life long learning. Distance education will fill an 
important gap for those individuals, either because of family 
obligations, work obligations, or other barriers, who are prevented 
from attending traditional classes. It will also allow educational 
institutions, from outlying rural towns to the heart of America's inner 
cities, to access a full range of academic subjects that would 
otherwise not be available to them.
  The amendment that I was planning to offer would have updated the 
exceptions to copyright law regarding distance education to meet the 
new challenges and allow for the use of new and exciting technologies 
that will improve the education of our citizens, so that we are better 
prepared to compete in this more competitive global economy. This is 
particularly important in my district where we currently have a 
shortage of high-technology workers that is hindering our economic 
growth.
  In 1976, as part of the general revision of the Copyright Law, the 
Congress recognized the importance of the burgeoning practice of 
distance learning. As the House Report on Copyright Law Revision (No. 
94-1476) put it, in the context of higher education, these 
``telecourses are fast becoming a valuable adjunct of the normal 
college curriculum.'' (p. 84). The use of the term ``telecourses'' is, 
of course, significant. At the time, the only technology by means of 
which distance education could be conducted was that of television 
(either ``open'' or ``closed-circuit'') and in providing an exemption 
from copyright liability for illustrative uses of certain works in the 
course of distance learning lessons; typically, moreover, these lessons 
involved the transmission of text material, still images, or music. 
Against this background, the Congress proceeded to fashion the 
provisions of 17 U.S.C. 110(2).

  The Copyright Act, in Section 106, provides for the various 
``exclusive rights'' of the copyright owner. Because, as a matter of 
definition, TV broadcasting implicates only Section 106(4) ``public 
performance'' and the Section 106(5) ``public display,'' the distance 
education exemption in Section 110(2) relieves educators of liability 
with respect to those two rights. Moreover, since educational TV 
broadcasts typically at assembled groups of students, Section 110(2) 
was drafted to apply to ``reception in classrooms of similar places'' 
(extending to home reception only in the case of disabled persons and 
others in ``special circumstances''). Finally, Section 110(2) was 
written to apply only to performances of ``non-dramatic literary or 
musical works,'' categories from which the overwhelming proportion of 
illustrative excerpts required by teachers would have been drawn.
  More than 20 years later, distance education practice has changed 
dramatically. Increasingly, distance learning has become a staple of K-
12 as well as higher education, and digital networks have become the 
favored technology for the delivery of distance learning lessons. As a 
technical matter, network transmissions generally become available to 
recipients only because a temporary copy of their content is made in 
the so-called ``random access memory'' of those recipients' computer 
terminals; thus, network transmission of an excerpt from a copyrighted 
work in the course of a distance learning lesson may involve not only 
the performance or display of that work, but also its ``distribution'' 
(another right which is reserved to the copyright owner in Section 
106(2), and not covered by existing Section 110(2)). Moreover, many 
contemporary distance learning transmissions are intended primarily for 
reception in the homes or offices of students who are neither disabled 
nor exhibit other ``special circumstances''; indeed, many such 
transmissions are offered by institutions (like the Western Governors' 
University or various home-school networks) which have few or no 
physical ``classrooms or similar places.'' Again, existing Section 
110(2) would not appear to cover such instructional programs. Finally, 
in the age of multimedia, instructors must be able to illustrate their 
lessons with relevant excerpts not only from the conventional literary 
and musical works covered in existing Section 110(2), but from the full 
range of cultural materials to which protection under the Copyright Act 
extends.
  As I mentioned before, the proposed amendment would legitimize the 
best current practice in the field of distance education and encourage 
further innovation in this important area by eliminating 
technologically or educationally outdated restrictions from Section 
110(2). By adopting such an amendment, the Congress would be following 
through on the decision it took in 1976 to encourage the practice of 
distance education by providing educators with a clearly defined ``safe 
harbor'' within which they could design lessons with enhanced learning 
value, free from concerns about potential legal liability.
  As amended, the Section 110(2) exemption would apply only to 
qualified not-for-profit institutions and home-schools. ``Fly-by-
night'' commercial trade schools and sham entities without demonstrable 
educational purposes would not qualify. Moreover, the amended sections 
would retain crucial restrictive language from the original, which 
limits its applicability to situations in which excerpts from 
copyrighted works are used ``for purposes of illustration, and [are] 
directly related and of material assistance to the teaching content'' 
of a distance learning lesson; indeed, the amended section would 
amplify that restriction with a new provision stating that the material 
used for illustrative purposes must be ``limited to that portion of the 
work reasonably necessary to accomplish the teaching purpose.'' In 
other words, the amended section would not permit educators to put 
entire copyrighted textbooks on line; such conduct is an infringement 
of copyright today, and it would continue to be under the amended 
section.
  Nor would the section allow distance education programming to become 
a gateway through which valuable copyrighted works, in their entirety, 
could flow out into the Internet and become generally available. This 
is all the more so because the amended section applies only to 
educators who had not taken reasonable steps to provide safeguards 
against distance education transmissions being received by non-students 
or copied for redistribution. Thus, the amended section actually would 
give distance educators a new incentive to upgrade the security 
features of their networks to discourage copyright infringement.
  It also is noteworthy that the exemption which would be defined in 
the amended section would be available only in connection with the 
actual delivery of educational materials by educators and their 
institutions, or (in the case of home schools) by parents. It would not 
deprive copyright owners of revenues in connection with the licensing 
of their works for inclusion in ``packaged'' materials designed for use 
in connection with distance education. Just as textbook authors and 
publishers today must obtain appropriate copyright clearances in order 
to include excerpts from copyrighted works, so would the creators of 
tomorrow's ``electronic texts.''
  Mr. COBLE. Madam Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from North Carolina (Mr. Coble) that the House suspend the 
rules and pass the bill, H.R. 2281, as amended.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill, as amended, was passed.
  The title of the bill was amended so as to read:

       ``A bill to amend title 17, United States Code, to 
     implement the World Intellectual Property Organization 
     Copyright Treaty and Performances and Phonograms Treaty, and 
     for other purposes.''.

  A motion to reconsider was laid on the table.




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