[DOCID: f:h2281eas.txt]











                  In the Senate of the United States,

                                                    September 17, 1998.
      Resolved, That the bill from the House of Representatives (H.R.
2281) entitled ``An Act 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.'', do
pass with the following

                               AMENDMENT:

            Strike out all after the enacting clause and insert:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Digital Millennium Copyright Act of
1998''.

SEC. 2. TABLE OF CONTENTS.

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

                 TITLE I--WIPO TREATIES IMPLEMENTATION

Sec. 101. Short title.
Sec. 102. Technical amendments.
Sec. 103. Copyright protection systems and copyright management
                            information.
Sec. 104. Conforming amendment.
Sec. 105. Effective date.

          TITLE II--INTERNET COPYRIGHT INFRINGEMENT LIABILITY

Sec. 201. Short title.
Sec. 202. Limitations on liability for Internet copyright infringement.
Sec. 203. Conforming amendment.
Sec. 204. Liability of educational institutions for online infringement
                            of copyright.
Sec. 205. Effective date.

               TITLE III--COMPUTER MAINTENANCE OR REPAIR

Sec. 301. Limitation on exclusive rights; computer programs.

   TITLE IV--EPHEMERAL RECORDINGS; DISTANCE EDUCATION; EXEMPTION FOR
                         LIBRARIES AND ARCHIVES

Sec. 401. Ephemeral recordings.
Sec. 402. Limitations on exclusive rights; distance education.
Sec. 403. Exemption for libraries and archives.

                 TITLE I--WIPO TREATIES IMPLEMENTATION

SEC. 101. SHORT TITLE.

    This title may be cited as the ``WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998''.

SEC. 102. TECHNICAL AMENDMENTS.

    (a) Section 101 of title 17, United States Code, is amended--
            (1) by deleting the definition of ``Berne Convention
        work'';
            (2) in the definition of ``The `country of origin' of a
        Berne Convention work'', by deleting ``The `country of origin'
        of a Berne Convention work,'', capitalizing the first letter of
        the word ``for'', deleting ``is the United States'' after ``For
        purposes of section 411,'', and inserting ``a work is a `United
        States work' only'' after ``For purposes of section 411,'';
            (3) in paragraph (1)(B) of the definition of ``The `country
        of origin' of a Berne Convention work'', by inserting ``treaty
        party or parties'' and deleting ``nation or nations adhering to
        the Berne Convention'';
            (4) in paragraph (1)(C) of the definition of ``The `country
        of origin' of a Berne Convention work'', by inserting ``is not
        a treaty party'' and deleting ``does not adhere to the Berne
        Convention'';
            (5) in paragraph (1)(D) of the definition of ``The `country
        of origin' of a Berne Convention work'', by inserting ``is not
        a treaty party'' and deleting ``does not adhere to the Berne
        Convention'';
            (6) in paragraph (3) of the definition of ``The `country of
        origin' of a Berne Convention work'', by deleting ``For the
        purposes of section 411, the `country of origin' of any other
        Berne Convention work is not the United States.'';
            (7) after the definition for ``fixed'', by inserting ``The
        `Geneva Phonograms Convention' is the Convention for the
        Protection of Producers of Phonograms Against Unauthorized
        Duplication of Their Phonograms, concluded at Geneva,
        Switzerland on October 29, 1971.'';
            (8) after the definition for ``including'', by inserting
        ``An `international agreement' is--
            ``(1) the Universal Copyright Convention;
            ``(2) the Geneva Phonograms Convention;
            ``(3) the Berne Convention;
            ``(4) the WTO Agreement;
            ``(5) the WIPO Copyright Treaty;
            ``(6) the WIPO Performances and Phonograms Treaty; and
            ``(7) any other copyright treaty to which the United States
        is a party.'';
            (9) after the definition for ``transmit'', by inserting ``A
        `treaty party' is a country or intergovernmental organization
        other than the United States that is a party to an
        international agreement.'';
            (10) after the definition for ``widow'', by inserting ``The
        `WIPO Copyright Treaty' is the WIPO Copyright Treaty concluded
        at Geneva, Switzerland, on December 20, 1996.'';
            (11) after the definition for ``The `WIPO Copyright
        Treaty', by inserting ``The `WIPO Performances and Phonograms
        Treaty' is the WIPO Performances and Phonograms Treaty
        concluded at Geneva, Switzerland on December 20, 1996.''; and
            (12) by inserting, after the definition for ``work for
        hire'', ``The `WTO Agreement' is the Agreement Establishing the
        World Trade Organization entered into on April 15, 1994. The
        terms `WTO Agreement' and `WTO member country' have the
        meanings given those terms in paragraphs (9) and (10)
        respectively of section 2 of the Uruguay Round Agreements
        Act.''.
    (b) Section 104 of title 17, United States Code, is amended--
            (1) in subsection (b)(1), by deleting ``foreign nation that
        is a party to a copyright treaty to which the United States is
        also a party'' and inserting ``treaty party'';
            (2) in subsection (b)(2) by deleting ``party to the
        Universal Copyright Convention'' and inserting ``treaty
        party'';
            (3) by renumbering the present subsection (b)(3) as (b)(5)
        and moving it to its proper sequential location and inserting a
        new subsection (b)(3) to read:
            ``(3) the work is a sound recording that was first fixed in
        a treaty party; or'';
            (4) in subsection (b)(4) by deleting ``Berne Convention
        work'' and inserting ``pictorial, graphic or sculptural work
        that is incorporated in a building or other structure, or an
        architectural work that is embodied in a building and the
        building or structure is located in the United States or a
        treaty party'';
            (5) by renumbering present subsection (b)(5) as (b)(6);
            (6) by inserting a new subsection (b)(7) to read:
            ``(7) for purposes of paragraph (2), a work that is
        published in the United States or a treaty party within thirty
        days of publication in a foreign nation that is not a treaty
        party shall be considered first published in the United States
        or such treaty party as the case may be.''; and
            (7) by inserting a new subsection (d) to read:
    ``(d) Effect of Phonograms Treaties.--Notwithstanding the
provisions of subsection (b), no works other than sound recordings
shall be eligible for protection under this title solely by virtue of
the adherence of the United States to the Geneva Phonograms Convention
or the WIPO Performances and Phonograms Treaty.''.
    (c) Section 104A(h) of title 17, United States Code, is amended--
            (1) in paragraph (1), by deleting ``(A) a nation adhering
        to the Berne Convention or a WTO member country; or (B) subject
        to a Presidential proclamation under subsection (g),'' and
        inserting--
                    ``(A) a nation adhering to the Berne Convention;
                    ``(B) a WTO member country;
                    ``(C) a nation adhering to the WIPO Copyright
                Treaty;
                    ``(D) a nation adhering to the WIPO Performances
                and Phonograms Treaty; or
                    ``(E) subject to a Presidential proclamation under
                subsection (g)'';
            (2) paragraph (3) is amended to read as follows:
            ``(3) the term `eligible country' means a nation, other
        than the United States that--
                    ``(A) becomes a WTO member country after the date
                of enactment of the Uruguay Round Agreements Act;
                    ``(B) on the date of enactment is, or after the
                date of enactment becomes, a nation adhering to the
                Berne Convention;
                    ``(C) adheres to the WIPO Copyright Treaty;
                    ``(D) adheres to the WIPO Performances and
                Phonograms Treaty; or
                    ``(E) after such date of enactment becomes subject
                to a proclamation under subsection (g).'';
            (3) in paragraph (6)(C)(iii), by deleting ``and'' after
        ``eligibility'';
            (4) at the end of paragraph (6)(D), by deleting the period
        and inserting ``; and'';
            (5) by adding the following new paragraph (6)(E):
                    ``(E) if the source country for the work is an
                eligible country solely by virtue of its adherence to
                the WIPO Performances and Phonograms Treaty, is a sound
                recording.'';
            (6) in paragraph (8)(B)(i), by inserting ``of which''
        before ``the majority'' and striking ``of eligible countries'';
        and
            (7) by deleting paragraph (9).
    (d) Section 411 of title 17, United States Code, is amended--
            (1) in subsection (a), by deleting ``actions for
        infringement of copyright in Berne Convention works whose
        country of origin is not the United States and''; and
            (2) in subsection (a), by inserting ``United States'' after
        ``no action for infringement of the copyright in any''.
    (e) Section 507(a) of title 17, United States Code, is amended by
adding at the beginning, ``Except as expressly provided elsewhere in
this title,''.

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

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

       ``CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS

``Sec.
``1201. Circumvention of copyright protection systems.
``1202. Integrity of copyright management information.
``1203. Civil remedies.
``1204. Criminal offenses and penalties.
``1205. Savings Clause.
``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 with that person's knowledge 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 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 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 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 this title 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 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 protection measure, so long as
such part or component or the product, in which such part or component
is integrated, does not otherwise fall within the prohibitions of
subsection (a)(2) or (b)(1).
    ``(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 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
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 such entities.
    ``(f) Notwithstanding the provisions of subsection (a)(1), 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 this title.
    ``(g) Notwithstanding the provisions of subsections (a)(2) and (b),
a person may develop and employ technological means to circumvent for
the identification and analysis described in subsection (f), or for the
limited purpose of achieving interoperability of an independently
created computer program with other programs, where such means are
necessary to achieve such interoperability, to the extent that doing so
does not constitute infringement under this title.
    ``(h) The information acquired through the acts permitted under
subsection (f), and the means permitted under subsection (g), may be
made available to others if the person referred to in subsections (f)
or (g) 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 applicable law
other than this title.
    ``(i) For purposes of subsections (f), (g), and (h), the term
``interoperability'' means the ability of computer programs to exchange
information, and for such programs mutually to use the information
which has been exchanged.
    ``(j) 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 (i) does not itself
violate the provisions of this chapter and (ii) has the sole purpose to
prevent the access of minors to material on the Internet.
``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 chapter, `copyright management
information' means the following information conveyed in connection
with copies or phonorecords of a work or performances or displays of a
work, including in digital form--
            ``(1) the title and other information identifying the work,
        including the information set forth on a notice of copyright;
            ``(2) the name of, and other identifying information about,
        the author of a work;
            ``(3) the name of, and other identifying information about,
        the copyright owner of the work, including the information set
        forth in a notice of copyright;
            ``(4) 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; or
            ``(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, 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 such entities.
    ``(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 radio or television 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.
            ``(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 radio or television 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 subsection
                (e)(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.
                    ``(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 subsection
                (e)(1) shall not be liable for a violation of
                subsection (b) with respect to such copyright
                management information, where the activity that
                constitutes such violation is not intended to induce,
                enable, facilitate or conceal infringement, 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 section; 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 radio or television
                                broadcast stations or cable systems and
                                copyright owners of a category of works
                                that are intended for public
                                performance by such stations or
                                systems.
``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
        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.--Notwithstanding section 507(a) of
this title, 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.''.

SEC. 104. 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. 105. EFFECTIVE DATE.

    (a) In General.--Subject to subsection (b), 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 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)(8) of this title;
            (B) the amendment made by section 102(a)(10) of this title;
            (C) subparagraph (C) of section 104A(h)(1) of title 17,
        United States Code, as amended by section 102(c)(1) of this
        title; and
            (D) subparagraph (C) of section 104A(h)(3) of title 17,
        United States Code, as amended by section 102(c)(2) of this
        title.
    (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)(8) of this title;
            (B) the amendment made by section 102(a)(11) of this title;
            (C) the amendment made by section 102(b)(7) of this title;
            (D) subparagraph (D) of section 104A(h)(1) of title 17,
        United States Code, as amended by section 102(c)(2) of this
        title;
            (E) the amendment made by section 102(c)(4) of this title;
        and
            (F) the amendment made by section 102(c)(5) of this title.

          TITLE II--INTERNET COPYRIGHT INFRINGEMENT LIABILITY

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Internet Copyright Infringement
Liability Clarification Act of 1998''.

SEC. 202. LIMITATIONS ON LIABILITY FOR INTERNET 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. Liability of service providers for online infringement of
              copyright
    ``(a) 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 for 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 the intermediate and transient storage of such
material in the course of such transmitting, routing or providing
connections, if--
            ``(1) it was initiated by or at the direction of a person
        other than the service provider;
            ``(2) it is carried out through an automatic technical
        process without selection of such material by the service
        provider;
            ``(3) the service provider does not select the recipients
        of such material except as an automatic response to the request
        of another;
            ``(4) no such copy of such material made by the service
        provider 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 the anticipated
        recipients for a longer period than is reasonably necessary for
        the communication; and
            ``(5) the material is transmitted without modification to
        its content.
    ``(b) System Caching.--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 for the intermediate and
temporary storage of material on the system or network controlled or
operated by or for the service provider: Provided, That--
            ``(1) such material is made available online by a person
        other than such service provider,
            ``(2) such material is transmitted from the person
        described in paragraph (1) through such system or network to
        someone other than that person at the direction of such other
        person,
            ``(3) the storage is carried out through an automatic
        technical process for the purpose of making such material
        available to users of such system or network who subsequently
        request access to that material from the person described in
        paragraph (1):
Provided further, That--
            ``(4) such material is transmitted to such subsequent users
        without modification to its content from the manner in which
        the material otherwise was transmitted from the person
        described in paragraph (1);
            ``(5) such service provider complies with rules concerning
        the refreshing, reloading or other updating of such material
        when specified by the person making that material available
        online in accordance with an accepted industry standard data
        communications protocol for the system or network through which
        that person makes the material available: Provided further,
        That the rules are not used by the person described in
        paragraph (1) to prevent or unreasonably impair such
        intermediate storage;
            ``(6) such service provider does not interfere with the
        ability of technology associated with such material that
        returns to the person described in paragraph (1) the
        information that would have been available to such person if
        such material had been obtained by such subsequent users
        directly from such person: Provided further, That such
        technology--
                    ``(A) does not significantly interfere with the
                performance of the provider's system or network or with
                the intermediate storage of the material;
                    ``(B) is consistent with accepted industry standard
                communications protocols; and
                    ``(C) does not extract information from the
                provider's system or network other than the information
                that would have been available to such person if such
                material had been accessed by such users directly from
                such person;
            ``(7) either--
                    ``(A) the person described in paragraph (1) does
                not currently condition access to such material; or
                    ``(B) if access to such material is so conditioned
                by such person, by a current individual pre-condition,
                such as a pre-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 been so authorized and only in
                accordance with those conditions; and
            ``(8) if the person described in paragraph (1) makes that
        material available online without the authorization of the
        copyright owner, then the service provider responds
        expeditiously to remove, or disable access to, the material
        that is claimed to be infringing upon notification of claimed
        infringements described in subsection (c)(3): Provided further,
        That the material has previously been removed from the
        originating site, and the party giving the notification
        includes in the notification a statement confirming that such
        material has been removed or access to it has been disabled or
        ordered to be removed or have access disabled.
    ``(c) Information Stored on Service Providers.--
            ``(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 for
        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 activity 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) if upon obtaining such knowledge or
                awareness, the service provider acts expeditiously to
                remove or disable access to, the material;
                    ``(B) does not receive a financial benefit directly
                attributable to the infringing activity, where the
                service provider has the right and ability to control
                such activity; and
                    ``(C) in the instance of a notification of claimed
                infringement as described in paragraph (3), 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) Designated agent.--The limitations on liability
        established in this subsection apply only if the service
        provider has designated an agent to receive notifications of
        claimed infringement described in paragraph (3), by
        substantially making the name, address, phone number,
        electronic mail address of such agent, and other contact
        information deemed appropriate by the Register of Copyrights,
        available through its service, including on its website, and by
        providing such information to the Copyright Office. 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.
            ``(3) Elements of notification.--
                    ``(A) To be effective under this subsection, a
                notification of claimed infringement means any written
                communication provided to the service provider's
                designated agent 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 such 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 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, or its
                        agent, or the law; and
                            ``(vi) a statement that the information in
                        the notification is accurate, and under penalty
                        of perjury, that the complaining party has the
                        authority to enforce the owner's rights that
                        are claimed to be infringed.
                    ``(B) A notification from the copyright owner or
                from a person authorized to act on behalf of the
                copyright owner that fails substantially to conform to
                the provisions of paragraph (3)(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: Provided, That the provider
                promptly attempts to contact the complaining party or
                takes other reasonable steps to assist in the receipt
                of notice under paragraph (3)(A) when the notice is
                provided to the service provider's designated agent and
                substantially satisfies the provisions of paragraphs
                (3)(A) (ii), (iii), and (iv).
    ``(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 for the provider
referring or linking users to an online location containing infringing
material or activity by using information location tools, including a
directory, index, reference, pointer or hypertext link, if the
provider--
            ``(1) does not have actual knowledge that the material or
        activity is infringing or, in the absence of such actual
        knowledge, is not aware of facts or circumstances from which
        infringing activity is apparent;
            ``(2) does not receive a financial benefit directly
        attributable to the infringing activity, where the service
        provider has the right and ability to control such activity;
        and
            ``(3) responds expeditiously to remove or disable the
        reference or link upon notification of claimed infringement as
        described in subsection (c)(3): Provided, That for the purposes
        of this paragraph, the element in subsection (c)(3)(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 such
        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 the 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.
    ``(f) Replacement of Removed or Disabled Material and Limitation on
Other Liability.--
            ``(1) Subject to paragraph (2) of this subsection, 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) Paragraph (1) of this subsection 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 notice as described
                in paragraph (3), promptly provides the person who
                provided the notice under subsection (c)(1)(C) with a
                copy of the counter notice, and informs such person
                that it will replace the removed material or cease
                disabling access to it in ten 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) To be effective under this subsection, a counter
        notification means any 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 such material appeared before it was
                removed or access 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 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 notice
                under subsection (c)(1)(C) or agent of such person.
            ``(4) 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) Identification of Direct Infringer.--The copyright owner or a
person authorized to act on the owner's behalf may request an order for
release of identification of an alleged infringer by filing--
            (1) a copy of a notification described in subsection
        (c)(3)(A), including a proposed order, and
            (2) a sworn declaration that the purpose of the order is to
        obtain the identity of an alleged infringer and that such
        information will only be used for the purpose of this title,
        with the clerk of any United States district court.
The order shall authorize and order the service provider receiving the
notification to disclose expeditiously to the copyright owner or person
authorized by the copyright owner information sufficient to identify
the alleged direct infringer of the material described in the
notification to the extent such information is available to the service
provider. The order shall be expeditiously issued if the accompanying
notification satisfies the provisions of subsection (c)(3)(A) and the
accompanying declaration is properly executed. Upon receipt of the
order, either accompanying or subsequent to the receipt of a
notification described in subsection (c)(3)(A), a service provider
shall expeditiously give to the copyright owner or person authorized by
the copyright owner the information required by the order,
notwithstanding any other provision of law and regardless of whether
the service provider responds to the notification.
    ``(h) Conditions for Eligibility.--
            ``(1) Accommodation of technology.--The limitations on
        liability established by this section shall apply only if the
        service provider--
                    ``(A) has adopted and reasonably implemented, and
                informs subscribers of the service of, a policy for the
                termination of subscribers of the service who are
                repeat infringers; and
                    ``(B) accommodates and does not interfere with
                standard technical measures as defined in this
                subsection.
            ``(2) Definition.--As used in this section, `standard
        technical measures' are technical measures, used by copyright
        owners to identify or protect copyrighted works, that--
                    ``(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 by operation of this
section.
            ``(1) Scope of relief.--
                    ``(A) With respect to conduct other than that which
                qualifies for the limitation on remedies as set forth
                in subsection (a), the court may only grant injunctive
                relief with respect to a service provider in one or
                more of the following forms--
                            ``(i) an order restraining it 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 it from
                        providing access to an identified subscriber of
                        the service provider's system or network who is
                        engaging in infringing activity by terminating
                        the specified accounts of such subscriber; or
                            ``(iii) such other injunctive remedies as
                        the court may consider necessary to prevent or
                        restrain infringement of specified copyrighted
                        material at a particular online location:
                        Provided, That such remedies are the least
                        burdensome to the service provider that are
                        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 it from
                        providing access to an identified subscriber of
                        the service provider's system or network who is
                        using the provider's service to engage in
                        infringing activity by terminating the
                        specified accounts of such subscriber; or
                            ``(ii) an order restraining it from
                        providing access, by taking specified
                        reasonable steps to block access, to a
                        specific, identified, foreign online location.
            ``(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 not be available without notice to the
        service provider and an opportunity for such provider to
        appear, 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)(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 any other subsection of this section, the
        term `service provider' means a provider of online services or
        network access, or the operator of facilities therefor, and
        includes an entity described in the preceding paragraph of this
        subsection.
            ``(2) 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 accessing, removing, or disabling
        access to material where such conduct is prohibited by law.
    ``(m) Rule of Construction.--Subsections (a), (b), (c), and (d) are
intended to describe separate and distinct functions for purposes of
analysis under this section. Whether a service provider qualifies for
the limitation on liability in any one such subsection shall be based
solely on the criteria in each such subsection and shall not affect a
determination of whether such service provider qualifies for the
limitations on liability under any other such subsection.''.

SEC. 203. 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. Liability of service providers for online infringement of
                            copyright.''.

 SEC. 204. LIABILITY OF EDUCATIONAL INSTITUTIONS FOR ONLINE
              INFRINGEMENT OF COPYRIGHT.

    (a) Not later than six months after the date of enactment of this
Act, the Register of Copyrights, after consultation with
representatives of copyright owners and nonprofit educational
institutions, shall submit to the Congress recommendations regarding
the liability of nonprofit educational institutions for copyright
infringement committed with the use of computer systems for which such
an institution is a service provider, as that term is defined in
section 512 of title 17, United States Code, (as amended by this Act),
including recommendations for legislation the Register of Copyrights
considers appropriate regarding such liability, if any.
    (b) In formulating recommendations, the Register of Copyrights
shall consider, where relevant--
            (1) current law regarding the direct, vicarious, and
        contributory liability of nonprofit educational institutions
        for infringement by faculty, administrative employees,
        students, graduate students, and students who are employees of
        a nonprofit educational institution;
            (2) other users of their computer systems for whom
        nonprofit educational institutions may be responsible;
            (3) the unique nature of the relationship between nonprofit
        educational institutions and faculty;
            (4) what policies nonprofit educational institutions should
        adopt regarding copyright infringement by users of their
        computer systems;
            (5) what technological measures are available to monitor
        infringing uses;
            (6) what monitoring of their computer systems by nonprofit
        educational institutions is appropriate;
            (7) what due process nonprofit educational institutions
        should afford in disabling access by users of their computer
        systems who are alleged to have committed copyright
        infringement;
            (8) what distinctions, if any, should be drawn between
        computer systems which may be accessed from outside the
        nonprofit educational systems, those which may not, and
        combinations thereof;
            (9) the tradition of academic freedom; and
            (10) such other issues relating to the liability of
        nonprofit educational institutions for copyright infringement
        committed with the use of computer systems for which such an
        institution is a service provider that the Register considers
        appropriate.

SEC. 205. 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

SEC. 301. LIMITATION 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 new subsections:
    ``(c) Machine Maintenance or Repair.--Notwithstanding the
provisions of section 106, it is not an infringement for an 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--EPHEMERAL RECORDINGS; DISTANCE EDUCATION; EXEMPTION FOR
                         LIBRARIES AND ARCHIVES

SEC. 401. EPHEMERAL RECORDINGS.

    Section 112 of title 17, United States Code, is amended by--
            (1) redesignating section 112(a) as 112(a)(1), and
        renumbering sections 112(a) (1), (2), and (3) as sections
        112(a)(1) (A), (B), and (C), respectively;
            (2) in section 112(a)(1), after the reference to section
        114(a), add the words ``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,'';
            (3) adding new section 112(a)(2) as follows:
    ``(2) Where a transmitting organization entitled to make a copy or
phonorecord under section 112(a)(1) in connection with the transmission
to the public of a performance or display of a work pursuant to that
section 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, such copyright owner shall make
available to the transmitting organization the necessary means for
permitting the making of such copy or phonorecord within the meaning of
that section: Provided, That it is technologically feasible and
economically reasonable for the copyright owner to do so, and: Provided
further, That, if such 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 section 112(a)(1).''.

SEC. 402. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION.

    (a) Not later than six months after the date of 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. Such recommendations shall include any legislation the
Register of Copyrights considers appropriate to achieve the foregoing
objective.
    (b) In formulating recommendations, the Register of Copyrights
shall consider--
            (1) the need for an exemption from exclusive rights 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
        and/or should be employed to safeguard against unauthorized
        access to, and use or retention of, copyrighted materials as a
        condition to eligibility for any distance education exemption,
        including, in light of developing technological capabilities,
        the exemption set out in section 110(2);
            (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. 403. EXEMPTION FOR LIBRARIES AND ARCHIVES.

    Section 108 of title 17, United States Code, is amended--
            (1) in subsection (a) by--
                    (A) striking ``Notwithstanding'' and inserting
                ``Except as otherwise provided and notwithstanding'';
                    (B) inserting after ``no more than one copy of
                phonorecord of a work'' the following: ``except as
                provided in subsections (b) and (c),''; and
                    (C) by inserting after ``copyright'' in paragraph
                (3) the following: ``if such notice appears on the copy
                or phonorecord that is reproduced under the provisions
                of this section, or 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) by--
                    (A) striking ``a copy or phonorecord'' and
                inserting in lieu thereof ``three copies or
                phonorecords'';
                    (B) striking ``in facsimile form''; and
                    (C) striking ``if the copy or phonorecord
                reproduced is currently in the collections of the
                library or archives.'' and inserting in lieu thereof
                ``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 outside the premises of the
        library or archives in that format.''; and
            (3) in subsection (c) by--
                    (A) striking ``a copy or phonorecord'' and
                inserting in lieu thereof ``three copies or
                phonorecords'';
                    (B) striking ``in facsimile form'';
                    (C) inserting ``or if the existing format in which
                the work is stored has become obsolete,'' after
                ``stolen,''; and
                    (D) 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 in lieu thereof ``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 except for use on the premises of the library or
        archives in lawful possession of such copy.'';
                    (E) 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.''.

            Attest:

                                                             Secretary.
105th CONGRESS

  2d Session

                               H. R. 2281

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                               AMENDMENT

HR 2281 EAS----2
HR 2281 EAS----3
HR 2281 EAS----4
HR 2281 EAS----5
