24 July 1998
Excerpt from full HR 2281 WIPO Copyright Treaty bill: http://jya.com/hr2281rh.txt

See encryption research provisions

    SEC. 102. CIRCUMVENTION OF COPYRIGHT PROTECTION SYSTEMS.

        (a) Violations Regarding Circumvention of Technological Protection
    Measures.--(1)(A) The Secretary of Commerce shall issue regulations
    prohibiting any person from circumventing a technological protection
    measure that effectively controls access to a work protected under
    title 17, United States Code, to the extent provided in this
    subsection, effective at the end of the 2-year period beginning on the
    date of the enactment of this Act.
        (B) During the 2-year period described in subparagraph (A), and in
    each succeeding 2-year period, the Secretary of Commerce, in
    consultation with the Assistant Secretary of Commerce for
    Communications and Information, the Commissioner of Patents and
    Trademarks, and the Register of Copyrights, shall conduct a rulemaking
    on the record to determine whether users of copyrighted works have
    been, or are likely to be in the succeeding 2-year period, adversely
    affected by the implementation of technological protection measures
    that effectively control access to works protected under title 17,
    United States Code, in their ability to make lawful uses under title
    17, United States Code, 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 archival,
            preservation, and educational purposes;
                (iii) the impact of the application of technological
            protection measures to copyrighted works on criticism, comment,
            news reporting, teaching, scholarship, or research;
                (iv) the effect of circumvention of technological
            protection measures on the market for or value of copyrighted
            works; and
                (v) such other factors as the Secretary, in consultation
            with the Assistant Secretary of Commerce for Communications and
            Information, the Commissioner of Patents and Trademarks, and
            the Register of Copyrights, considers appropriate.
        (C) The Secretary, with respect to each particular class of
    copyrighted works for which the Secretary has determined, pursuant to
    the rulemaking conducted under subparagraph (B), that lawful uses have
    been, or are likely to be, adversely affected, shall waive the
    applicability of the regulations issued under subparagraph (A) for the
    ensuing 2-year period. The determinations made in the rulemaking shall
    not be admissible in any action to enforce any provision of this Act
    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 protection measure that
            effectively controls access to a work protected under title 17,
            United States Code;
                (B) has only limited commercially significant purpose or
            use other than to circumvent a technological protection measure
            that effectively controls access to a work protected under
            title 17, United States Code; 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 protection measure that
            effectively controls access to a work protected under title 17,
            United States Code.
        (3) As used in this subsection--
                (A) to ``circumvent a technological protection measure''
            means to descramble a scrambled work, to decrypt an encrypted
            work, or otherwise to avoid, bypass, remove, deactivate, or
            impair a technological protection measure, without the
            authority of the copyright owner; 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 title 17, United States Code, in a work or a portion
            thereof;
                (B) has only limited commercially significant purpose or
            use other than to circumvent protection afforded by a
            technological protection measure that effectively protects a
            right of a copyright owner under title 17, United States Code,
            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 protection
            measure that effectively protects a right of a copyright owner
            under title 17, United States Code, in a work or a portion
            thereof.
        (2) As used in this subsection--
                (A) to ``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 title 17, United
            States Code'' if the measure, in the ordinary course of its
            operation, prevents, restricts, or otherwise limits the
            exercise of a right of a copyright owner under title 17, United
            States Code.
        (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 title 17, United States Code.
        (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 protection 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 title 17, United States Code, shall not be in violation
    of the regulations issued under 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 104; and
                (B) shall, for repeated or subsequent offenses, in addition
            to the civil remedies under section 104, 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 protection 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 regulations
    issued under subsection (a)(1)(A), a person who has lawfully obtained
    the right to use a copy of a computer program may circumvent a
    technological protection 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 title 17, United States Code.
        (2) Notwithstanding the provisions of subsections (a)(2) and (b), a
    person may develop and employ technological means to circumvent a
    technological protection measure, or to circumvent protection afforded
    by a technological protection measure, in order to make the
    identification and analysis permitted under paragraph (1), or for the
    limited purpose of 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 title 17, United States Code.
        (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 paragraph (1) or (2),
    as the case may be, 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 title 17, United States Code, 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 the regulations issued under that subsection
            for a person to circumvent a technological protection 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
                    title 17, United States Code, or a violation of
                    applicable law other than this section, including
                    section 1030 of title 18, United States Code, and those
                    provisions of title 18, United States Code, 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 title 17, United States Code, 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 protection
                    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 protection measure for the
                    sole purpose of 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 Act, the Assistant Secretary of
            Commerce for Communications and Information shall 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
                    protection for copyrighted works; and
                        (C) protection of copyright owners against the
                    unauthorized access to their encrypted copyrighted
                    works.
            The Assistant Secretary shall include in such report
            recommendations, if any, on proposed amendments to this Act.
        (h) Components or Parts to Prevent Access of Minors to the
    Internet.--In applying subsection (a) and the regulations issued under
    subsection (a)(1)(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--
                (1) does not itself violate the provisions of title 17,
            United States Code; and
                (2) has the sole purpose to prevent the access of minors to
            material on the Internet.
        (i) Protection of Personally Identifying Information.--
                (1) Circumvention permitted.--Notwithstanding the
            provisions of subsection (a)(1)(A), it is not a violation of
            the regulations issued under that subsection for a person to
            circumvent a technological protection measure that effectively
            controls access to a work protected under title 17, United
            States Code, if--
                        (A) the technological protection 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 protection 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 protection
            measures.--This subsection does not apply to a technological
            protection 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.