[DOCID: f:h2281ih.txt]

105th CONGRESS
  1st Session
                                H. R. 2281

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

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             July 29, 1997

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

_______________________________________________________________________

                                 A BILL


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

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

SECTION 1. SHORT TITLE.

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

SEC. 2. TECHNICAL AMENDMENTS.

    (a) Definitions.--Section 101 of title 17, United States Code, is
amended--
            (1) by striking the definition of ``Berne Convention
        work'';
            (2) in the definition of ``The `country of origin' of a
        Berne Convention work''--
                    (A) by striking ``The `country of origin' of a
                Berne Convention work, for purposes of section 411, is
                the United States if'' and inserting ``For purposes of
                section 411, a work is a `United States work' only
                if'';
                    (B) in paragraph (1)--
                            (i) in subparagraph (B) by striking
                        ``nation or nations adhering to the Berne
                        Convention'' and inserting ``treaty party or
                        parties'';
                            (ii) in subparagraph (C) by striking ``does
                        not adhere to the Berne Convention'' and
                        inserting ``is not a treaty party''; and
                            (iii) in subparagraph (D) by striking
                        ``does not adhere to the Berne Convention'' and
                        inserting ``is not a treaty party''; and
                    (C) in the matter following paragraph (3) by
                striking ``For the purposes of section 411, the
                `country of origin' of any other Berne Convention work
                is not the United States.'';
            (3) by inserting after the definition of ``fixed'' the
        following:
            ``The `Geneva Phonograms Convention' is the Convention for
        the Protection of Producers of Phonograms Against Unauthorized
        Duplication of Their Phonograms, concluded at Geneva,
        Switzerland, on October 29, 1971.'';
            (4) by inserting after the definition of ``including'' the
        following:
            ``An `international agreement' is--
                    ``(1) the Universal Copyright Convention;
                    ``(2) the Geneva Phonograms Convention;
                    ``(3) the Berne Convention;
                    ``(4) the WTO Agreement;
                    ``(5) the WIPO Copyright Treaty;
                    ``(6) the WIPO Performances and Phonograms Treaty;
                and
                    ``(7) any other copyright treaty to which the
                United States is a party.'';
            (5) by inserting after the definition of ``transmit'' the
        following:
            ``A `treaty party' is a country or intergovernmental
        organization other than the United States that is a party to an
        international agreement.'';
            (6) by inserting after the definition of ``widow'' the
        following:
            ``The `WIPO Copyright Treaty' is the WIPO Copyright Treaty
        concluded at Geneva, Switzerland, on December 20, 1996.'';
            (7) by inserting after the definition of ``The `WIPO
        Copyright Treaty''' the following:
            ``The `WIPO Performances and Phonograms Treaty' is the WIPO
        Performances and Phonograms Treaty concluded at Geneva,
        Switzerland, on December 20, 1996.''; and
            (8) by inserting after the definition of ``work made for
        hire'' the following:
            ``The terms `WTO Agreement' and `WTO member country' have
        the meanings given those terms in paragraphs (9) and (10),
        respectively, of section 2 of the Uruguay Round Agreements
        Act.''.
    (b) Subject Matter of Copyright; National Origin.--Section 104 of
title 17, United States Code, is amended--
            (1) in subsection (b)--
                    (A) in paragraph (1) by striking ``foreign nation
                that is a party to a copyright treaty to which the
                United States is also a party'' and inserting ``treaty
                party'';
                    (B) in paragraph (2) by striking ``party to the
                Universal Copyright Convention'' and inserting ``treaty
                party'';
                    (C) by redesignating paragraph (5) as paragraph
                (6);
                    (D) by redesignating paragraph (3) as paragraph (5)
                and inserting it after paragraph (4);
                    (E) by inserting after paragraph (2) the following:
            ``(3) the work is a sound recording that was first fixed in
        a treaty party; or'';
                    (F) in paragraph (4) by striking ``Berne Convention
                work'' and inserting ``pictorial, graphic, or
                sculptural work that is incorporated in a building or
                other structure, or an architectural work that is
                embodied in a building and the building or structure is
                located in the United States or a treaty party''; and
                    (G) by inserting after paragraph (6), as so
                redesignated, the following:
``For purposes of paragraph (2), a work that is published in the United
States or a treaty party within 30 days after publication in a foreign
nation that is not a treaty party shall be considered to be first
published in the United States or such treaty party, as the case may
be.''; and
            (2) by adding at the end the following new subsection:
    ``(d) Effect of Phonograms Treaties.--Notwithstanding the
provisions of subsection (b), no works other than sound recordings
shall be eligible for protection under this title solely by virtue of
the adherence of the United States to the Geneva Phonograms Convention
or the WIPO Performances and Phonograms Treaty.''.
    (c) Copyright in Restored Works.--Section 104A(h) of title 17,
United States Code, is amended--
            (1) in paragraph (1), by striking subparagraphs (A) and (B)
        and inserting the following:
                    ``(A) a nation adhering to the Berne Convention;
                    ``(B) a WTO member country;
                    ``(C) a nation adhering to the WIPO Copyright
                Treaty;
                    ``(D) a nation adhering to the WIPO Performances
                and Phonograms Treaty; or
                    ``(E) subject to a Presidential proclamation under
                subsection (g).'';
            (2) by amending paragraph (3) to read as follows:
            ``(3) The term `eligible country' means a nation, other
        than the United States, that--
                    ``(A) becomes a WTO member country after the date
                of the enactment of the Uruguay Round Agreements Act;
                    ``(B) on such date of enactment is, or after such
                date of enactment becomes, a nation adhering to the
                Berne Convention;
                    ``(C) adheres to the WIPO Copyright Treaty;
                    ``(D) adheres to the WIPO Performances and
                Phonograms Treaty; or
                    ``(E) after such date of enactment becomes subject
                to a proclamation under subsection (g).'';
            (3) in paragraph (6)--
                    (A) in subparagraph (C)(iii) by striking ``and''
                after the semicolon;
                    (B) at the end of subparagraph (D) by striking the
                period and inserting ``; and''; and
                    (C) by adding after subparagraph (D) the following:
                    ``(E) if the source country for the work is an
                eligible country solely by virtue of its adherence to
                the WIPO Performances and Phonograms Treaty, is a sound
                recording.'';
            (4) in paragraph (8)(B)(i)--
                    (A) by inserting ``of which'' before ``the
                majority''; and
                    (B) by striking ``of eligible countries''; and
            (5) by striking paragraph (9).
    (d) Registration and Infringement Actions.--Section 411(a) of title
17, United States Code, is amended in the first sentence--
            (1) by striking ``actions for infringement of copyright in
        Berne Convention works whose country of origin is not the
        United States and''; and
            (2) by inserting ``United States'' after ``no action for
        infringement of the copyright in any''.
    (e) Statute of Limitations.--Section 507(a) of title 17, United
State Code, is amended by striking ``No'' and inserting ``Except as
expressly provided otherwise in this title, no''.

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

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

       ``CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS

``Sec.
``1201. Circumvention of copyright protection systems.
``1202. Integrity of copyright management information.
``1203. Civil remedies.
``1204. Criminal offenses and penalties.
``Sec. 1201. Circumvention of copyright protection systems
    ``(a) Violations Regarding Circumvention of Technological
Protection Measures.--(1) No person shall circumvent a technological
protection measure that effectively controls access to a work protected
under this title.
    ``(2) No person shall manufacture, import, offer to the public,
provide or otherwise traffic in any technology, product, service,
device, component, or part thereof that--
            ``(A) is primarily designed or produced for the purpose of
        circumventing a technological protection measure that
        effectively controls access to a work protected under this
        title;
            ``(B) has only limited commercially significant purpose or
        use other than to circumvent a technological protection measure
        that effectively controls access to a work protected under this
        title; or
            ``(C) is marketed by that person or another acting in
        concert with that person for use in circumventing a
        technological protection measure that effectively controls
        access to a work protected under this title.
    ``(3) As used in this subsection--
            ``(A) to `circumvent a technological protection' means to
        descramble a scrambled work, to decrypt an encrypted work, or
        otherwise to avoid, bypass, remove, deactivate, or impair a
        technological protection measure, without the authority of the
        copyright owner; and
            ``(B) a technological protection measure `effectively
        controls access to a work' if the measure, in the ordinary
        course of its operation, requires the application of
        information, or a process or a treatment, with the authority of
        the copyright owner, to gain access to the work.
    ``(b) Additional Violations.--(1) No person shall manufacture,
import, offer to the public, provide or otherwise traffic in any
technology, product, service, device, component, or part thereof that--
            ``(A) is primarily designed or produced for the purpose of
        circumventing protection afforded by a technological protection
        measure that effectively protects a right of a copyright owner
        under this title in a work or a portion thereof;
            ``(B) has only limited commercially significant purpose or
        use other than to circumvent protection afforded by a
        technological protection measure that effectively protects a
        right of a copyright owner under this title in a work or a
        portion thereof; or
            ``(C) is marketed by that person or another acting in
        concert with that person for use in circumventing protection
        afforded by a technological protection measure that effectively
        protects a right of a copyright owner under this title in a
        work or a portion thereof.
    ``(2) As used in this subsection--
            ``(A) the term `circumvent protection afforded by a
        technological protection measure' means avoiding, bypassing,
        removing, deactivating, or otherwise impairing a technological
        protection measure; and
            ``(B) a technological protection measure `effectively
        protects a right of a copyright owner' under this title if the
        measure, in the ordinary course of its operation, prevents,
        restricts, or otherwise limits the exercise of a right of a
        copyright owner under this title.
    ``(c) Importation.--The importation into the United States, the
sale for importation, or the sale within the United States after
importation by the owner, importer, or consignee of any technology,
product, service, device, component, or part thereof as described in
subsection (a) or (b) shall be actionable under section 337 of the
Tariff Act of 1930 (19 U.S.C. 1337).
    ``(d) Other Rights, Etc., Not Affected.--Nothing in this section
shall affect rights, remedies, limitations, or defenses to copyright
infringement, including fair use, under this title.
    ``(e) Law Enforcement and Intelligence Activities.--This section
does not prohibit any lawfully authorized investigative, protective, or
intelligence activity of a law enforcement agency of the United States,
a State, or a political subdivision of a State, or of an intelligence
agency of the United States.
``Sec. 1202. Integrity of copyright management information
    ``(a) False Copyright Management Information.--No person shall
knowingly--
            ``(1) provide copyright management information that is
        false, or
            ``(2) distribute or import for public distribution
        copyright management information that is false,
with the intent to induce, enable, facilitate, or conceal infringement.
    ``(b) Removal or Alteration of Copyright Management Information.--
No person shall, without the authority of the copyright owner or the
law--
            ``(1) intentionally remove or alter any copyright
        management information,
            ``(2) distribute or import for distribution copyright
        management information, knowing that the copyright management
        information has been removed or altered without authority of
        the copyright owner or the law, or
            ``(3) distribute, import for distribution, or publicly
        perform works, copies of works, or phonorecords, knowing that
        the copyright management information has been removed or
        altered without authority of the copyright owner or the law,
knowing or, with respect to civil remedies under section 1203, having
reasonable grounds to know, that it will induce, enable, facilitate, or
conceal an infringement of any right under this title.
    ``(c) Definition.--As used in this chapter, the term `copyright
management information' means the following information conveyed in
connection with copies or phonorecords of a work or performances or
displays of a work, including in digital form:
            ``(1) The title and other information identifying the work,
        including the information set forth on a notice of copyright.
            ``(2) The name of, and other identifying information about,
        the author of a work.
            ``(3) The name of, and other identifying information about,
        the copyright owner of the work, including the information set
        forth in a notice of copyright.
            ``(4) Terms and conditions for use of the work.
            ``(5) Identifying numbers or symbols referring to such
        information or links to such information.
            ``(6) Such other information as the Register of Copyrights
        may prescribe by regulation, except that the Register of
        Copyrights may not require the provision of any information
        concerning the user of a copyrighted work.
    ``(d) Law Enforcement and Intelligence Activities.--This section
does not prohibit any lawfully authorized investigative, protective, or
intelligence activity of a law enforcement agency of the United States,
a State, or a political subdivision of a State, or of an intelligence
agency of the United States.
``Sec. 1203. Civil remedies
    ``(a) Civil Actions.--Any person injured by a violation of section
1201 or 1202 may bring a civil action in an appropriate United States
district court for such violation.
    ``(b) Powers of the Court.--In an action brought under subsection
(a), the court--
            ``(1) may grant temporary and permanent injunctions on such
        terms as it deems reasonable to prevent or restrain a
        violation;
            ``(2) at any time while an action is pending, may order the
        impounding, on such terms as it deems reasonable, of any device
        or product that is in the custody or control of the alleged
        violator and that the court has reasonable cause to believe was
        involved in a violation;
            ``(3) may award damages under subsection (c);
            ``(4) in its discretion may allow the recovery of costs by
        or against any party other than the United States or an officer
        thereof;
            ``(5) in its discretion may award reasonable attorney's
        fees to the prevailing party; and
            ``(6) may, as part of a final judgment or decree finding a
        violation, order the remedial modification or the destruction
        of any device or product involved in the violation that is in
        the custody or control of the violator or has been impounded
        under paragraph (2).
    ``(c) Award of Damages.--
            ``(1) In general.--Except as otherwise provided in this
        chapter, a person committing a violation of section 1201 or
        1202 is liable for either--
                    ``(A) the actual damages and any additional profits
                of the violator, as provided in paragraph (2); or
                    ``(B) statutory damages, as provided in paragraph
                (3).
            ``(2) Actual damages.--The court shall award to the
        complaining party the actual damages suffered by the party as a
        result of the violation, and any profits of the violator that
        are attributable to the violation and are not taken into
        account in computing the actual damages, if the complaining
        party elects such damages at any time before final judgment is
        entered.
            ``(3) Statutory damages.--(A) At any time before final
        judgment is entered, a complaining party may elect to recover
        an award of statutory damages for each violation of section
        1201 in the sum of not less than $200 or more than $2,500 per
        act of circumvention, device, product, component, offer, or
performance of service, as the court considers just.
            ``(B) At any time before final judgment is entered, a
        complaining party may elect to recover an award of statutory
        damages for each violation of section 1202 in the sum of not
        less than $2,500 or more than $25,000.
            ``(4) Repeated violations.--In any case in which the
        injured party sustains the burden of proving, and the court
        finds, that a person has violated section 1201 or 1202 within 3
        years after a final judgment was entered against that person
        for another such violation, the court may increase the award of
        damages up to triple the amount that would otherwise be
        awarded, as the court considers just.
            ``(5) Innocent violations.--The court in its discretion may
        reduce or remit the total award of damages in any case in which
        the violator sustains the burden of proving, and the court
        finds, that the violator was not aware and had no reason to
        believe that its acts constituted a violation.
``Sec. 1204. Criminal offenses and penalties
    ``(a) In General.--Any person who violates section 1201 or 1202
willfully and for purposes of commercial advantage or private financial
gain--
            ``(1) shall be fined not more than $500,000 or imprisoned
        for not more than 5 years, or both, for the first offense; and
            ``(2) shall be fined not more than $1,000,000 or imprisoned
        for not more than 10 years, or both, for any subsequent
        offense.
    ``(b) Statute of Limitations.--Notwithstanding section 507(a) of
this title, no criminal proceeding shall be maintained under subsection
(a) unless such proceeding is commenced within 5 years after the cause
of action arose.''.

SEC. 4. CONFORMING AMENDMENT.

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

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

SEC. 5. EFFECTIVE DATE.

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