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FILE h2281.ih
HR 2281 IH
105th CONGRESS
1st Session
To amend title 17, United States Code, to implement the World
Intellectual Property Organization Copyright Treaty and
Performances and Phonograms Treaty.
IN THE HOUSE OF REPRESENTATIVES
July 29, 1997
Mr. COBLE (for himself, Mr. HYDE, Mr. CONYERS, and Mr. FRANK of
Massachusetts) introduced the following bill; which was
referred to the Committee on the Judiciary
A BILL
To amend title 17, United States Code, to implement the World
Intellectual Property Organization Copyright Treaty and
Performances and Phonograms Treaty.
[Italic->] Be it enacted by the Senate and House of
Representatives of the United States of America in Congress
assembled, [<-Italic]
SECTION 1. SHORT TITLE.
This Act may be cited as the `WIPO Copyright Treaties
Implementation Act'.
SEC. 2. TECHNICAL AMENDMENTS.
(a) DEFINITIONS- Section 101 of title 17, United States Code, is
amended--
(1) by striking the definition of `Berne Convention work';
(2) in the definition of `The `country of origin' of a Berne
Convention work'--
(A) by striking `The `country of origin' of a Berne
Convention work, for purposes of section 411, is the United
States if' and inserting `For purposes of section 411, a
work is a `United States work' only if';
(B) in paragraph (1)--
(i) in subparagraph (B) by striking `nation or
nations adhering to the Berne Convention' and inserting
`treaty party or parties';
(ii) in subparagraph (C) by striking `does not adhere
to the Berne Convention' and inserting `is not a treaty
party'; and
(iii) in subparagraph (D) by striking `does not
adhere to the Berne Convention' and inserting `is not a
treaty party'; and
(C) in the matter following paragraph (3) by striking
`For the purposes of section 411, the `country of origin'
of any other Berne Convention work is not the United
States.';
(3) by inserting after the definition of `fixed' the following:
`The `Geneva Phonograms Convention' is the Convention for the
Protection of Producers of Phonograms Against Unauthorized
Duplication of Their Phonograms, concluded at Geneva,
Switzerland, on October 29, 1971.';
(4) by inserting after the definition of `including' the
following:
`An `international agreement' is--
`(1) the Universal Copyright Convention;
`(2) the Geneva Phonograms Convention;
`(3) the Berne Convention;
`(4) the WTO Agreement;
`(5) the WIPO Copyright Treaty;
`(6) the WIPO Performances and Phonograms Treaty; and
`(7) any other copyright treaty to which the United
States is a party.';
(5) by inserting after the definition of `transmit' the
following:
`A `treaty party' is a country or intergovernmental
organization other than the United States that is a party to an
international agreement.';
(6) by inserting after the definition of `widow' the following:
`The `WIPO Copyright Treaty' is the WIPO Copyright Treaty
concluded at Geneva, Switzerland, on December 20, 1996.';
(7) by inserting after the definition of `The `WIPO Copyright
Treaty' the following:
`The `WIPO Performances and Phonograms Treaty' is the WIPO
Performances and Phonograms Treaty concluded at Geneva,
Switzerland, on December 20, 1996.'; and
(8) by inserting after the definition of `work made for hire'
the following:
`The terms `WTO Agreement' and `WTO member country' have the
meanings given those terms in paragraphs (9) and (10),
respectively, of section 2 of the Uruguay Round Agreements Act.'.
(b) SUBJECT MATTER OF COPYRIGHT; NATIONAL ORIGIN- Section 104 of
title 17, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1) by striking `foreign nation that is
a party to a copyright treaty to which the United States is
also a party' and inserting `treaty party';
(B) in paragraph (2) by striking `party to the Universal
Copyright Convention' and inserting `treaty party';
(C) by redesignating paragraph (5) as paragraph (6);
(D) by redesignating paragraph (3) as paragraph (5) and
inserting it after paragraph (4);
(E) by inserting after paragraph (2) the following:
`(3) the work is a sound recording that was first fixed in a
treaty party; or';
(F) in paragraph (4) by striking `Berne Convention work'
and inserting `pictorial, graphic, or sculptural work that
is incorporated in a building or other structure, or an
architectural work that is embodied in a building and the
building or structure is located in the United States or a
treaty party'; and
(G) by inserting after paragraph (6), as so redesignated,
the following:
`For purposes of paragraph (2), a work that is published in the
United States or a treaty party within 30 days after publication in
a foreign nation that is not a treaty party shall be considered to
be first published in the United States or such treaty party, as
the case may be.'; and
(2) by adding at the end the following new subsection:
`(d) EFFECT OF PHONOGRAMS TREATIES- Notwithstanding the
provisions of subsection (b), no works other than sound recordings
shall be eligible for protection under this title solely by virtue
of the adherence of the United States to the Geneva Phonograms
Convention or the WIPO Performances and Phonograms Treaty.'.
(c) COPYRIGHT IN RESTORED WORKS- Section 104A(h) of title 17,
United States Code, is amended--
(1) in paragraph (1), by striking subparagraphs (A) and (B)
and inserting the following:
`(A) a nation adhering to the Berne Convention;
`(B) a WTO member country;
`(C) a nation adhering to the WIPO Copyright Treaty;
`(D) a nation adhering to the WIPO Performances and
Phonograms Treaty; or
`(E) subject to a Presidential proclamation under
subsection (g).';
(2) by amending paragraph (3) to read as follows:
`(3) The term `eligible country' means a nation, other than
the United States, that--
`(A) becomes a WTO member country after the date of the
enactment of the Uruguay Round Agreements Act;
`(B) on such date of enactment is, or after such date of
enactment becomes, a nation adhering to the Berne Convention;
`(C) adheres to the WIPO Copyright Treaty;
`(D) adheres to the WIPO Performances and Phonograms
Treaty; or
`(E) after such date of enactment becomes subject to a
proclamation under subsection (g).';
(3) in paragraph (6)--
(A) in subparagraph (C)(iii) by striking `and' after the
semicolon;
(B) at the end of subparagraph (D) by striking the period
and inserting `; and'; and
(C) by adding after subparagraph (D) the following:
`(E) if the source country for the work is an eligible
country solely by virtue of its adherence to the WIPO
Performances and Phonograms Treaty, is a sound recording.';
(4) in paragraph (8)(B)(i)--
(A) by inserting `of which' before `the majority'; and
(B) by striking `of eligible countries'; and
(5) by striking paragraph (9).
(d) REGISTRATION AND INFRINGEMENT ACTIONS- Section 411(a) of
title 17, United States Code, is amended in the first sentence--
(1) by striking `actions for infringement of copyright in
Berne Convention works whose country of origin is not the
United States and'; and
(2) by inserting `United States' after `no action for
infringement of the copyright in any'.
(e) STATUTE OF LIMITATIONS- Section 507(a) of title 17, United
State Code, is amended by striking `No' and inserting `Except as
expressly provided otherwise in this title, no'.
SEC. 3. COPYRIGHT PROTECTIONS SYSTEMS AND COPYRIGHT MANAGEMENT
INFORMATION.
Title 17, United States Code, is amended by adding at the end the
following new chapter:
[BOLD->] `CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS
[<-BOLD]
`Sec.
`1201. Circumvention of copyright protection systems.
`1202. Integrity of copyright management information.
`1203. Civil remedies.
`1204. Criminal offenses and penalties.
`Sec. 1201. Circumvention of copyright protection systems
`(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL
PROTECTION MEASURES- (1) No person shall circumvent a technological
protection measure that effectively controls access to a work
protected under this title.
`(2) No person shall manufacture, import, offer to the public,
provide or otherwise traffic in any technology, product, service,
device, component, or part thereof that--
`(A) is primarily designed or produced for the purpose of
circumventing a technological protection measure that
effectively controls access to a work protected under this title;
`(B) has only limited commercially significant purpose or use
other than to circumvent a technological protection measure
that effectively controls access to a work protected under this
title; or
`(C) is marketed by that person or another acting in concert
with that person for use in circumventing a technological
protection measure that effectively controls access to a work
protected under this title.
`(3) As used in this subsection--
`(A) to `circumvent a technological protection' means to
descramble a scrambled work, to decrypt an encrypted work, or
otherwise to avoid, bypass, remove, deactivate, or impair a
technological protection measure, without the authority of the
copyright owner; and
`(B) a technological protection measure `effectively controls
access to a work' if the measure, in the ordinary course of its
operation, requires the application of information, or a
process or a treatment, with the authority of the copyright
owner, to gain access to the work.
`(b) ADDITIONAL VIOLATIONS- (1) No person shall manufacture,
import, offer to the public, provide or otherwise traffic in any
technology, product, service, device, component, or part thereof
that--
`(A) is primarily designed or produced for the purpose of
circumventing protection afforded by a technological protection
measure that effectively protects a right of a copyright owner
under this title in a work or a portion thereof;
`(B) has only limited commercially significant purpose or use
other than to circumvent protection afforded by a technological
protection measure that effectively protects a right of a
copyright owner under this title in a work or a portion
thereof; or
`(C) is marketed by that person or another acting in concert
with that person for use in circumventing protection afforded
by a technological protection measure that effectively protects
a right of a copyright owner under this title in a work or a
portion thereof.
`(2) As used in this subsection--
`(A) the term `circumvent protection afforded by a
technological protection measure' means avoiding, bypassing,
removing, deactivating, or otherwise impairing a technological
protection measure; and
`(B) a technological protection measure `effectively protects
a right of a copyright owner' under this title if the measure,
in the ordinary course of its operation, prevents, restricts,
or otherwise limits the exercise of a right of a copyright
owner under this title.
`(c) IMPORTATION- The importation into the United States, the
sale for importation, or the sale within the United States after
importation by the owner, importer, or consignee of any technology,
product, service, device, component, or part thereof as described
in subsection (a) or (b) shall be actionable under section 337 of
the Tariff Act of 1930 (19 U.S.C. 1337).
`(d) OTHER RIGHTS, ETC., NOT AFFECTED- Nothing in this section
shall affect rights, remedies, limitations, or defenses to
copyright infringement, including fair use, under this title.
`(e) LAW ENFORCEMENT AND INTELLIGENCE ACTIVITIES- This section
does not prohibit any lawfully authorized investigative,
protective, or intelligence activity of a law enforcement agency of
the United States, a State, or a political subdivision of a State,
or of an intelligence agency of the United States.
`Sec. 1202. Integrity of copyright management information
`(a) FALSE COPYRIGHT MANAGEMENT INFORMATION- No person shall
knowingly--
`(1) provide copyright management information that is false, or
`(2) distribute or import for public distribution copyright
management information that is false,
with the intent to induce, enable, facilitate, or conceal
infringement.
`(b) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION-
No person shall, without the authority of the copyright owner or
the law--
`(1) intentionally remove or alter any copyright management
information,
`(2) distribute or import for distribution copyright
management information, knowing that the copyright management
information has been removed or altered without authority of
the copyright owner or the law, or
`(3) distribute, import for distribution, or publicly perform
works, copies of works, or phonorecords, knowing that the
copyright management information has been removed or altered
without authority of the copyright owner or the law,
knowing or, with respect to civil remedies under section 1203,
having reasonable grounds to know, that it will induce, enable,
facilitate, or conceal an infringement of any right under this title.
`(c) DEFINITION- As used in this chapter, the term `copyright
management information' means the following information conveyed in
connection with copies or phonorecords of a work or performances or
displays of a work, including in digital form:
`(1) The title and other information identifying the work,
including the information set forth on a notice of copyright.
`(2) The name of, and other identifying information about,
the author of a work.
`(3) The name of, and other identifying information about,
the copyright owner of the work, including the information set
forth in a notice of copyright.
`(4) Terms and conditions for use of the work.
`(5) Identifying numbers or symbols referring to such
information or links to such information.
`(6) Such other information as the Register of Copyrights may
prescribe by regulation, except that the Register of Copyrights
may not require the provision of any information concerning the
user of a copyrighted work.
`(d) LAW ENFORCEMENT AND INTELLIGENCE ACTIVITIES- This section
does not prohibit any lawfully authorized investigative,
protective, or intelligence activity of a law enforcement agency of
the United States, a State, or a political subdivision of a State,
or of an intelligence agency of the United States.
`Sec. 1203. Civil remedies
`(a) CIVIL ACTIONS- Any person injured by a violation of section
1201 or 1202 may bring a civil action in an appropriate United
States district court for such violation.
`(b) POWERS OF THE COURT- In an action brought under subsection
(a), the court--
`(1) may grant temporary and permanent injunctions on such
terms as it deems reasonable to prevent or restrain a violation;
`(2) at any time while an action is pending, may order the
impounding, on such terms as it deems reasonable, of any device
or product that is in the custody or control of the alleged
violator and that the court has reasonable cause to believe was
involved in a violation;
`(3) may award damages under subsection (c);
`(4) in its discretion may allow the recovery of costs by or
against any party other than the United States or an officer
thereof;
`(5) in its discretion may award reasonable attorney's fees
to the prevailing party; and
`(6) may, as part of a final judgment or decree finding a
violation, order the remedial modification or the destruction
of any device or product involved in the violation that is in
the custody or control of the violator or has been impounded
under paragraph (2).
`(c) AWARD OF DAMAGES-
`(1) IN GENERAL- Except as otherwise provided in this
chapter, a person committing a violation of section 1201 or
1202 is liable for either--
`(A) the actual damages and any additional profits of the
violator, as provided in paragraph (2); or
`(B) statutory damages, as provided in paragraph (3).
`(2) ACTUAL DAMAGES- The court shall award to the complaining
party the actual damages suffered by the party as a result of
the violation, and any profits of the violator that are
attributable to the violation and are not taken into account in
computing the actual damages, if the complaining party elects
such damages at any time before final judgment is entered.
`(3) STATUTORY DAMAGES- (A) At any time before final judgment
is entered, a complaining party may elect to recover an award
of statutory damages for each violation of section 1201 in the
sum of not less than $200 or more than $2,500 per act of
circumvention, device, product, component,
offer, or performance of service, as the court considers just.
`(B) At any time before final judgment is entered, a
complaining party may elect to recover an award of statutory
damages for each violation of section 1202 in the sum of not
less than $2,500 or more than $25,000.
`(4) REPEATED VIOLATIONS- In any case in which the injured
party sustains the burden of proving, and the court finds, that
a person has violated section 1201 or 1202 within 3 years after
a final judgment was entered against that person for another
such violation, the court may increase the award of damages up
to triple the amount that would otherwise be awarded, as the
court considers just.
`(5) INNOCENT VIOLATIONS- The court in its discretion may
reduce or remit the total award of damages in any case in which
the violator sustains the burden of proving, and the court
finds, that the violator was not aware and had no reason to
believe that its acts constituted a violation.
`Sec. 1204. Criminal offenses and penalties
`(a) IN GENERAL- Any person who violates section 1201 or 1202
willfully and for purposes of commercial advantage or private
financial gain--
`(1) shall be fined not more than $500,000 or imprisoned for
not more than 5 years, or both, for the first offense; and
`(2) shall be fined not more than $1,000,000 or imprisoned
for not more than 10 years, or both, for any subsequent offense.
`(b) STATUTE OF LIMITATIONS- Notwithstanding section 507(a) of
this title, no criminal proceeding shall be maintained under
subsection (a) unless such proceeding is commenced within 5 years
after the cause of action arose.'.
SEC. 4. CONFORMING AMENDMENT.
The table of chapters for title 17, United States Code, is
amended by adding at the end the following:
[Bold->] 1201'. [<-Bold]
SEC. 5. EFFECTIVE DATE.
(a) IN GENERAL- Subject to subsection (b), the amendments made by
this Act shall take effect on the date of the enactment of this Act.
(b) AMENDMENTS RELATING TO CERTAIN INTERNATIONAL AGREEMENTS- (1)
The following shall take effect upon the entry into force of the
WIPO Copyright Treaty with respect to the United States:
(A) Paragraph (5) of the definition of `international
agreement' contained in section 101 of title 17, United States
Code, as amended by section 2(a)(4) of this Act.
(B) The amendment made by section 2(a)(6) of this Act.
(C) Subparagraph (C) of section 104(h)(1) of title 17, United
States Code, as amended by section 2(c)(1) of this Act.
(D) Subparagraph (C) of section 104(h)(3) of title 17, United
States Code, as amended by section 2(c)(2) of this Act.
(2) The following shall take effect upon the entry into force of
the WIPO Performances and Phonograms Treaty with respect to the
United States:
(A) Paragraph (6) of the definition of `international
agreement' contained in section 101 of title 17, United States
Code, as amended by section 2(a)(4) of this Act.
(B) The amendment made by section 2(a)(7) of this Act.
(C) The amendment made by section 2(b)(2) of this Act.
(D) Subparagraph (D) of section 104(h)(1) of title 17, United
States Code, as amended by section 2(c)(1) of this Act.
(E) Subparagraph (D) of section 104(h)(3) of title 17, United
States Code, as amended by section 2(c)(2) of this Act.
(F) The amendments made by section 2(c)(3) of this Act.
-o-
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