[DOCID: f:h3048ih.txt]

105th CONGRESS
  1st Session
                                H. R. 3048

   To update and preserve balance in the Copyright Act for the 21st
    Century; to advance educational opportunities through distance
  learning; to implement the World Intellectual Property Organization
Copyright Treaty, and Performances and Phonograms Treaty, and for other
                               purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                           November 13, 1997

  Mr. Boucher (for himself and Mr. Campbell) introduced the following
       bill; which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


   To update and preserve balance in the Copyright Act for the 21st
    Century; to advance educational opportunities through distance
  learning; to implement the World Intellectual Property Organization
Copyright Treaty and Performances and Phonograms Treaty, and for other
                               purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Digital Era Copyright Enhancement
Act''.

SEC. 2. FAIR USE.

    (a) Transmissions.--The first sentence of section 107 of title 17,
United States Code, is amended by inserting after ``or by any other
means specified in that section,'' the following: ``and by analog or
digital transmission,''; and
    (b) Determination.--Section 107 of title 17, United States Code, is
amended by adding at the end thereof the following:
``In making a determination concerning fair use, no independent weight
shall be afforded to--
            ``(1) the means by which the work has been performed,
        displayed or distributed under the authority of the copyright
        owner; or
            ``(2) the application of an effective technological measure
        (as defined under section 1201(c)) to the work.''.

SEC. 3. LIBRARY/ARCHIVE EXEMPTIONS.

    Section 108 of title 17, United States Code, is amended--
            (1) by striking ``Notwithstanding'' at the beginning of
        subsection (a) and inserting: ``Except as otherwise provided
        and notwithstanding'';
            (2) by inserting after ``copyright'' in subsection (a)(3):
        ``if such notice appears on the copy or phonorecord that is
        reproduced under the provisions of this section'';
            (3) in subsection (b) by--
                    (A) deleting ``a copy or phonorecord'' and
                inserting in lieu thereof: ``three copies or
                phonorecords''; and
                    (B) deleting ``in facsimile form''; and
            (4) in subsection (c) by--
                    (A) deleting ``a copy or phonorecord'' and
                inserting in lieu thereof: ``three copies or
                phonorecords'';
                    (B) deleting ``in facsimile form''; and
                    (C) inserting ``or if the existing format in which
                the work is stored has become obsolete,'' after
                ``stolen,''.

SEC. 4. FIRST SALE.

    Section 109 of title 17, United States Code, is amended by adding
the following new subsection at the end thereof:
    ``(f) The authorization for use set forth in subsection (a) applies
where the owner of a particular copy or phonorecord in a digital format
lawfully made under this title, or any person authorized by such owner,
performs, displays or distributes the work by means of transmission to
a single recipient, if that person erases or destroys his or her copy
or phonorecord at substantially the same time. The reproduction of the
work, to the extent necessary for such performance, display,
distribution, is not an infringement.''.

SEC. 5. DISTANCE LEARNING.

    (a) Title Change.--The title of section 110 of title 17, United
States Code, is amended to read as follows:
``Sec. 110. Limitations on exclusive rights: Exemption of certain
              activities'';
    (b) Performance, Display and Distribution of a Work.--Section
110(2) of title 17, United States Code, is amended to read as follows:
            ``(2) performance, display or distribution of a work, by or
        in the course of an analog or digital transmission, if--
                    ``(A) the performance, display or distribution is a
                regular part of the systematic instructional activities
                of a governmental body or a nonprofit educational
                institution;
                    ``(B) the performance, display or distribution is
                directly related and of material assistance to the
                teaching content of the transmission; and
                    ``(C) the work is provided for reception by--
                            ``(i) students officially enrolled in the
                        course in connection with which it is provided;
                        or
                            ``(ii) officers or employees of
                        governmental bodies as part of their official
                        duties or employment;''
    (c) Ephemeral Recordings of Works.--Section 112(b) of title 17,
United States Code, is amended by deleting ``transmit a performance or
display of'' and inserting in lieu thereof: ``perform, display or
distribute''.

SEC. 6. LIMITATIONS ON EXCLUSIVE RIGHTS.

    (a) Title.--The title of section 117 of title 17, United States
Code, is amended to read as follows:
``Sec. Limitations on exclusive rights: Computer programs and digital
              copies'';
    (b) Digital Copies.--Section 117 of title 17, United States Code,
is amended by inserting ``(a)'' before ``Notwithstanding'' and
inserting the following as a new subsection (b):
    ``(b) Notwithstanding the provisions of section 106, it is not an
infringement to make a copy of a work in a digital format if such
copying--
            ``(1) is incidental to the operation of a device in the
        course of the use of a work otherwise lawful under this title;
        and
            ``(2) does not conflict with the normal exploitation of the
        work and does not unreasonably prejudice the legitimate
        interests of the author.''.

SEC. 7. PREEMPTION.

    Section 301(a) of title 17, United States Code, is amended by
inserting the following at the end thereof:
``When a work is distributed to the public subject to non-negotiable
license terms, such terms shall not be enforceable under the common law
or statutes of any state to the extent that they--
            ``(1) limit the reproduction, adaptation, distribution,
        performance, or display, by means of transmission or otherwise,
        of material that is uncopyrightable under section 102(b) or
        otherwise; or
            ``(2) abrogate or restrict the limitations on exclusive
        rights specified in sections 107 through 114 and sections 117
        and 118 of this title.''.

SEC. 8. COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS.

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

       ``CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS

``Sec.
``1201. Circumvention of certain technological measures.
``1202. Integrity of copyright management information.
``1203. Civil remedies.
``Sec. 1201. Circumvention of certain technological measures
    ``(a) Circumvention Conduct.--No person, for the purpose of
facilitating or engaging in an act of infringement, shall engage in
conduct so as knowingly to remove, deactivate or otherwise circumvent
the application or operation of any effective technological measure
used by a copyright owner to preclude or limit reproduction of a work
or a portion thereof. As used in this subsection, the term `conduct'
does not include manufacturing, importing or distributing a device or a
computer program.
    ``(b) Conduct Governed by Separate Chapter.--Notwithstanding
subsection (a), this section shall not apply with respect to conduct or
the offer or performance of a service governed by a separate chapter of
this title.
    ``(c) Definition of Effective Technological Measure.--As used in
this section, the term `effective technological measure' means a change
in the data comprising a work or a copy of a work transmitted in
digital format so as to protect the rights of a copyright owner of such
work or portion thereof under this title and which--
            ``(1) encrypts or scrambles the work or a portion thereof
        in the absence of information supplied by the copyright owner;
        or
            ``(2) includes attributes with respect to access or
        recording status that cannot be removed without degrading the
        work or a portion thereof.
``Sec. 1202. Integrity of copyright management information
    ``(a) False Copyright Management Information.--No person shall
knowingly provide copyright management information that is false, or
knowingly publicly distribute or import for distribution copyright
management information that is false, with intent to induce,
facilitate, or conceal infringement.
    ``(b) Removal or Alteration of Copyright Management Information.--
No person shall, without authority of the copyright owner or other
lawful authority, knowingly and with intent to mislead or to induce or
facilitate infringement--
            ``(1) remove or alter any copyright management information;
            ``(2) publicly distribute or import for distribution a copy
        or phonorecord containing copyright management information that
        has been altered without authority of the copyright owner or
        other lawful authority; or
            ``(3) publicly distribute or import for distribution a copy
        or phonorecord from which copyright management information has
        been removed without authority of the copyright owner or other
        lawful authority: Provided, That the conduct governed by this
        subsection does not include the manufacturing, importing or
        distributing of a device.
    ``(c) Definition of Copyright Management Information.--As used in
this chapter, the term `copyright management information' means the
following information in electronic form as carried in or as data
accompanying a copy or phonorecord of a work, including in digital
form:
            ``(1) The title and other information identifying the work,
        including the information set forth in a notice of copyright;
            ``(2) The name and other identifying information of the
        author of the work;
            ``(3) The name and other identifying information of the
        copyright owner of the work, including the information set
        forth in a notice of copyright;
            ``(4) Terms and conditions for uses of the work;
            ``(5) Identifying numbers or symbols referring to such
        information or links to such information; and
            ``(6) Such other identifying information concerning the
        work as the Register of Copyrights may prescribe by regulation:
Provided, That the term `copyright management information' does not
include the information described in section 1002, section 1201(c), or
a chapter of this title other than chapters one through nine of this
title: Provided further, That, in order to assure privacy protection,
the term `copyright management information' does not include any
personally identifiable information relating to the user of a work,
including but not limited to the name, account, address or other
contact information of or pertaining to the user.
``Sec. 1203. Civil remedies
    ``(a) Civil Actions.--Any person aggrieved by a violation of
section 1201(a) or 1202 may bring a civil action in an appropriate
United States district court against any person for such violation.
    ``(b) Powers of the Court.--In an action brought under subsection
(a), the court--
            ``(1) may grant a temporary and a permanent injunction on
        such terms as it deems reasonable to prevent or restrain a
        violation;
            ``(2) may grant such other equitable relief as it deems
        appropriate;
            ``(3) may award damages pursuant to subsection (c);
            ``(4) may allow the recovery of costs by or against any
        party other than the United States or an officer thereof; and
            ``(5) may award a reasonable attorney's fee to the
        prevailing party.
    ``(c) Award of Damages.--
            ``(1) In general.--If the court finds that a violation of
        section 1201(a) or 1202 has occurred, the complaining party may
        elect either actual damages as computed under paragraph (2) or
        statutory damages as computed under paragraph (3).
            ``(2) Actual damages.--The court may award to the
        complaining party the actual damages suffered by him or her 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 instead of statutory damages at any
        time before final judgment is entered.
            ``(3) Statutory damages.--(A) The court may award to the
        complaining party statutory damages for each violation of
        section 1201(a) of not less than $250 or more than $2,500, as
        the court considers just, if the complaining party elects such
        damages instead of actual damages at any time before final
        judgment is entered.
            ``(B) The court may award to the complaining party
        statutory damages for each violation of section 1202 of not
        less than $500 or more than $20,000, as the court considers
        just, if the complaining party elects such damages instead of
        actual damages at any time before final judgment is entered.
            ``(4) Repeated violations.--In any case in which the court
        finds that a person has violated section 1201(a) or 1202 within
        three years after a final judgment against that person for
        another such violation was entered, the court may increase the
        award of damaages to not more than double the amount that would
        otherwise be awarded under paragraph (2) or (3), as the court
        considers just.
            ``(5) Innocent violation.--The court may reduce or remit
        altogether the total award of damages that otherwise would be
        awarded under paragraph (2) or (3) 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 of section 1201(a) or
        1202.''.

SEC. 9. CONFORMING AMENDMENTS.

    ``(a) Table of Sections.--The table of sections for chapter 1 of
title 17, United States Code, is amended by--
            (1) Revising the item relating to section 110 to read as
        follows:

``110. Limitations on exclusive rights: Exemption of certain
                            activities'';
            and
            (2) Revising the item relating to section 117 to read as
        follows:

``117. Limitations on exclusive rights: computer programs and digital
                            copies''.
    ``(b) Table of Chapters.--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. 10. EFFECTIVE DATES.

    ``(a) In General.--Sections one through seven and section 9(a) of
this Act, and the amendments made by sections one through seven and
section 9(a) of this Act, shall take effect on the date of enactment of
this Act.
    ``(b) WIPO Treaties.--Section 8 and section 9(b) of this Act, and
the amendments made by section 8 and section 9(b) of this Act, shall
take effect on the date on which both the World Intellectual Property
Organization Copyright Treaty and the World Intellectual Property
Organization Performances and Phonograms Treaty have entered into force
with respect to the United States.
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