[DOCID: f:s1121is.txt]

105th CONGRESS
  1st Session
                                S. 1121

 To amend Title 17 to implement the WIPO Copyright Treaty and the WIPO
                  Performances and Phonograms Treaty.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             July 31, 1997

  Mr. Hatch (for himself, Mr. Leahy, Mr. Thompson, and Mr. Kohl) (by
   request) introduced the following bill; which was read twice and
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 To amend Title 17 to implement the WIPO Copyright Treaty and the WIPO
                  Performances and Phonograms Treaty.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``WIPO Copyright and Performances and
Phonograms Treaty Implementation Act of 1997''.

SEC. 2. 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 subsection (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 subsection (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 subsection (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 section (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 section (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 section (b)(2) by deleting ``party to the Universal
        Copyright Convention'' and inserting ``treaty party'';
            (3) by renumbering the present section (b)(3) as (b)(5) and
        moving it to its proper sequential location and inserting a new
        section (b)(3) to read:
            ``(3) the work is a sound recording that was first fixed in
        a treaty party; or'';
            (4) in section (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 section (b)(5) as (b)(6);
            (6) by inserting a new section (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 section (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. 3. 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.
``Sec. 1201. Circumvention of copyright protection systems
    ``(a)(1) No person shall circumvent a technological protection
measure that effectively controls access to a work protected under
title 17.
    ``(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,
            ``(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, or
            ``(C) is marketed by that person or another acting in
        concert with that person for use in circumventing a
        technological protection measure that effectively controls
        access to a work protected under title 17.
    ``(3) As used in this subsection--
            ``(A) `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;
            ``(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)(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 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 in a work or a
        portion thereof; or
            ``(C) is marketed by that person or another acting in
        concert with that person for use in circumventing protection
        afforded by a technological protection measure that effectively
        protects a right of a copyright owner under title 17 in a work
        or a portion thereof.
    ``(2) As used in this subsection--
            ``(A) `circumvent protection afforded by a technological
        protection measure' means avoiding, bypassing, removing,
        deactivating, or otherwise impairing a technological protection
        measure;
            ``(B) a technological protection measure `effectively
        protects a right of a copyright owner under title 17' 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.
    ``(c) The importation into the United States, the sale for
importation, or the sale within the United States after importation by
the owner, importer or consignee of any technology, product, service,
device, component, or part thereof as described in this section shall
be actionable under section 1337 of title 19.
    ``(d) Nothing in this section shall affect rights, remedies,
limitations, or defenses to copyright infringement, including fair use,
under title 17.
    ``(e) This section does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of a law
enforcement agency of the United States, a State, or a political
subdivision of a State, or of an intelligence agency of the United
States.
``Sec. 1202. Integrity of copyright management information
    ``(a) False Copyright Management Information.--No person shall
knowingly--
            ``(1) provide copyright management information that is
        false, or
            ``(2) distribute or import for distribution copyright
        management information that is false, with the intent to
        induce, enable, facilitate or conceal an infringement of any
        right under title 17.
    ``(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 title 17.
    ``(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) terms and conditions for use of the work;
            ``(5) identifying numbers of symbols referring to such
        information or links to such information; or
            ``(6) such other information as the Register of Copyrights
        may prescribe by regulation, except that the Register of
        Copyrights may not require the provision of any information
        concerning the user of a copyrighted work.
    ``(d) This section does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of a law
enforcement agency of the United States, a State, or a political
subdivision of a State, or of an intelligence agency of the United
States.
``Sec. 1203. Civil remedies
    ``(a) Civil Actions.--Any person injured by a violation of section
1201 or 1202 may bring a civil action in an appropriate United States
district court for such violation.
    ``(b) Powers of the Court.--In an action brought under subsection
(a), the court--
            ``(1) may grant temporary and permanent injunctions on such
        terms as it deems reasonable to prevent or restrain a
        violation;
            ``(2) at any time while an action is pending, may order the
        impounding, on such terms as it deems reasonable, of any device
        or product that is in the custody or control of the alleged
        violator and that the court has reasonable cause to believe was
        involved in a violation;
            ``(3) may award damages under subsection (c);
            ``(4) in its discretion may allow the recovery of costs by
        or against any party other than the United States or an officer
        thereof;
            ``(5) in its discretion may award reasonable attorney's
        fees to the prevailing party; and
            ``(6) may, as part of a final judgment or decree finding a
        violation, order the remedial modification or the destruction
of any device or product involved in the violation that is in the
custody or control of the violator or has been impounded under
subsection (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 by subsection (2), or
                    ``(B) statutory damages, as provided by subsection
                (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.--The court in its discretion may
        reduce or remit the total award of damages in any case in which
        the violator sustains the burden of proving, and the court
        finds, that the violator was not aware and had no reason to
        believe that its acts constituted a violation.
``Sec. 1204. Criminal offenses and penalties
    ``(a) Any person who violates section 1201 or 1202 willfully and
for purposes of commercial advantage or private financial gain shall be
fined not more than $500,000 or imprisoned for not more than 5 years,
or both for the first offense and shall be fined not more than
$1,000,000 or imprisoned for not more than 10 years, or both for any
subsequent offense.
    ``(b) Notwithstanding section 507(a) of this title, no criminal
proceeding shall be brought under section 1204 unless such proceeding
is commenced within five years after the cause of action arose.''

SEC. 4. CONFORMING AMENDMENTS.

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

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

SEC. 5. EFFECTIVE DATE.

    The amendments made by this Act shall take effect on the date of
the enactment of this Act, except clause (5) of the definition of
``international agreement'' as amended by section 2(a)(8) of this Act,
section 2(a)(10) of this Act, clause (C) of section 104(h)(1) of title
17 as amended by section 2(c)(1) of this Act and clause (C) of section
104(h)(3) of title 17 as amended by section 2(c)(2) of this Act shall
take effect upon entry into force of the WIPO Copyright Treaty with
respect to the United States, and clause (6) of the definition of
``international agreement'' as amended by section 2(a)(8) of this Act,
section 2(a)(11) of this Act, section 2(b)(7) of this Act, clause (D)
of section 104A(h)(1) of title 17 as amended by section 2(c)(2) of this
Act, and sections 2(c)(4) and 2(c)(5) of this Act shall take effect
upon entry into force of the WIPO Performances and Phonograms Treaty
with respect to the United States.
                                 <all>
