II

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘WIPO Copyright and

5 Performances and Phonograms Treaty Implementation

6 Act of 1997’’.

7 SEC. 2. TECHNICAL AMENDMENTS.

8 (a) Section 101 of title 17, United States Code, is

9 amended—
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1 (1) by deleting the definition of ‘‘Berne Conven2 tion work’’;

3 (2) in the definition of ‘‘The ‘country of origin’

4 of a Berne Convention work’’, by deleting ‘‘The

5 ‘country of origin’ of a Berne Convention work,’’,

6 capitalizing the first letter of the word ‘‘for’’, delet7 ing ‘‘is the United States’’ after ‘‘For purposes of

8 section 411,’’, and inserting ‘‘a work is a ‘United

9 States work’ only’’ after ‘‘For purposes of section

10 411,’’;

11 (3) in subsection (1)(B) of the definition of

12 ‘‘The ‘country of origin’ of a Berne Convention

13 work’’, by inserting ‘‘treaty party or parties’’ and

14 deleting ‘‘nation or nations adhering to the Berne

15 Convention’’;

16 (4) in subsection (1)(C) of the definition of

17 ‘‘The ‘country of origin’ of a Berne Convention

18 work’’, by inserting ‘‘is not a treaty party’’ and de19 leting ‘‘does not adhere to the Berne Convention’’;

20 (5) in subsection (1)(D) of the definition of

21 ‘‘The ‘country of origin’ of a Berne Convention

22 work’’, by inserting ‘‘is not a treaty party’’ and de23 leting ‘‘does not adhere to the Berne Convention’’;

24 (6) in section (3) of the definition of ‘‘The

25 ‘country of origin’ of a Berne Convention work’’, by
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1 deleting ‘‘For the purposes of section 411, the ‘coun2 try of origin’ of any other Berne Convention work is

3 not the United States.’’;

4 (7) after the definition for ‘‘fixed’’, by inserting

5 ‘‘The ‘Geneva Phonograms Convention’ is the Con6 vention for the Protection of Producers of

7 Phonograms Against Unauthorized Duplication of

8 Their Phonograms, concluded at Geneva, Switzer9 land on October 29, 1971.’’;

10 (8) after the definition for ‘‘including’’, by in11 serting ‘‘An ‘international agreement’ is—

12 ‘‘(1) the Universal Copyright Convention;

13 ‘‘(2) the Geneva Phonograms Convention;

14 ‘‘(3) the Berne Convention;

15 ‘‘(4) the WTO Agreement;

16 ‘‘(5) the WIPO Copyright Treaty;

17 ‘‘(6) the WIPO Performances and Phonograms

18 Treaty; and

19 ‘‘(7) any other copyright treaty to which the

20 United States is a party.’’;

21 (9) after the definition for ‘‘transmit’’, by in22 serting ‘‘A ‘treaty party’ is a country or intergovern23 mental organization other than the United States

24 that is a party to an international agreement.’’;
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1 (10) after the definition for ‘‘widow’’, by insert2 ing ‘‘The ‘WIPO Copyright Treaty’ is the WIPO

3 Copyright Treaty concluded at Geneva, Switzerland,

4 on December 20, 1996.’’;

5 (11) after the definition for ‘‘The ‘WIPO Copy6 right Treaty’ ’’, by inserting ‘‘The ‘WIPO Perform7 ances and Phonograms Treaty’ is the WIPO Per8 formances and Phonograms Treaty concluded at Ge9 neva, Switzerland on December 20, 1996.’’; and

10 (12) by inserting, after the definition for ‘‘work

11 for hire’’, ‘‘The ‘WTO Agreement’ is the Agreement

12 Establishing the World Trade Organization entered

13 into on April 15, 1994. The terms ‘WTO Agree14 ment’ and ‘WTO member country’ have the mean15 ings given those terms in paragraphs (9) and (10)

16 respectively of section 2 of the Uruguay Round

17 Agreements Act.’’.

18 (b) Section 104 of title 17, United States Code, is

19 amended—

20 (1) in section (b)(1), by deleting ‘‘foreign nation

21 that is a party to a copyright treaty to which the

22 United States is also a party’’ and inserting ‘‘treaty

23 party’’;
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1 (2) in section (b)(2) by deleting ‘‘party to the

2 Universal Copyright Convention’’ and inserting

3 ‘‘treaty party’’;

4 (3) by renumbering the present section (b)(3)

5 as (b)(5) and moving it to its proper sequential loca6 tion and inserting a new section (b)(3) to read:

7 ‘‘(3) the work is a sound recording that was

8 first fixed in a treaty party; or’’;

9 (4) in section (b)(4) by deleting ‘‘Berne Con10 vention work’’ and inserting ‘‘pictorial, graphic or

11 sculptural work that is incorporated in a building or

12 other structure, or an architectural work that is em13 bodied in a building and the building or structure is

14 located in the United States or a treaty party’’;

15 (5) by renumbering present section (b)(5) as

16 (b)(6);

17 (6) by inserting a new section (b)(7) to read:

18 ‘‘(7) For purposes of paragraph (2), a work

19 that is published in the United States or a treaty

20 party within thirty days of publication in a foreign

21 nation that is not a treaty party shall be considered

22 first published in the United States or such treaty

23 party as the case may be.’’; and

24 (7) by inserting a new section (d) to read:
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1 ‘‘(d) EFFECT OF PHONOGRAMS TREATIES.—Not2 withstanding the provisions of subsection (b), no works

3 other than sound recordings shall be eligible for protection

4 under this title solely by virtue of the adherence of the

5 United States to the Geneva Phonograms Convention or

6 the WIPO Performances and Phonograms Treaty.’’.

7 (c) Section 104A(h) of title 17, United States Code,

8 is amended—

9 (1) in paragraph (1), by deleting ‘‘(A) a nation

10 adhering to the Berne Convention or a WTO mem11 ber country; or (B) subject to a Presidential procla12 mation under subsection (g),’’ and inserting—

13 ‘‘(A) a nation adhering to the Berne Con14 vention;

15 ‘‘(B) a WTO member country;

16 ‘‘(C) a nation adhering to the WIPO Copy17 right Treaty;

18 ‘‘(D) a nation adhering to the WIPO Per19 formances and Phonograms Treaty; or

20 ‘‘(E) subject to a Presidential proclamation

21 under subsection (g)’’;

22 (2) paragraph (3) is amended to read as fol23 lows:

24 ‘‘(3) the term ‘eligible country’ means a nation,

25 other than the United States that—
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1 ‘‘(A) becomes a WTO member country

2 after the date of enactment of the Uruguay

3 Round Agreements Act;

4 ‘‘(B) on the date of enactment is, or after

5 the date of enactment becomes, a nation adher6 ing to the Berne Convention;

7 ‘‘(C) adheres to the WIPO Copyright

8 Treaty;

9 ‘‘(D) adheres to the WIPO Performances

10 and Phonograms Treaty; or

11 ‘‘(E) after such date of enactment becomes

12 subject to a proclamation under subsection

13 (g).’’;

14 (3) in paragraph (6)(C)(iii), by deleting ‘‘and’’

15 after ‘‘eligibility’’;

16 (4) at the end of paragraph (6)(D), by deleting

17 the period and inserting ‘‘; and’’;

18 (5) by adding the following new paragraph

19 (6)(E):

20 ‘‘(E) if the source country for the work is

21 an eligible country solely by virtue of its adher22 ence to the WIPO Performances and

23 Phonograms Treaty, is a sound recording.’’;
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1 (6) in paragraph (8)(B)(i), by inserting ‘‘of

2 which’’ before ‘‘the majority’’ and striking ‘‘of eligi3 ble countries’’; and

4 (7) by deleting paragraph (9).

5 (d) Section 411 of title 17, United States Code, is

6 amended—

7 (1) in subsection (a), by deleting ‘‘actions for

8 infringement of copyright in Berne Convention

9 works whose country of origin is not the United

10 States and’’; and

11 (2) in subsection (a), by inserting ‘‘United

12 States’’ after ‘‘no action for infringement of the

13 copyright in any’’.

14 (e) Section 507(a) of title 17, United States Code,

15 is amended by adding at the beginning, ‘‘Except as ex16 pressly provided elsewhere in this title,’’.

17 SEC. 3. COPYRIGHT PROTECTION SYSTEMS AND COPY18 RIGHT MANAGEMENT INFORMATION.

19 Title 17, United States Code, is amended by adding

20 the following new chapter:

21 ‘‘CHAPTER 12—COPYRIGHT PROTECTION AND

22 MANAGEMENT SYSTEMS

‘‘Sec.

‘‘1201. Circumvention of copyright protection systems.

‘‘1202. Integrity of copyright management information.

‘‘1203. Civil remedies.

‘‘1204. Criminal offenses and penalties.
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1 ‘‘§ 1201. Circumvention of copyright protection sys2 tems

3 ‘‘(a)(1) No person shall circumvent a technological

4 protection measure that effectively controls access to a

5 work protected under title 17.

6 ‘‘(2) No person shall manufacture, import, offer to

7 the public, provide or otherwise traffic in any technology,

8 product, service, device, component, or part thereof that—

9 ‘‘(A) is primarily designed or produced for the

10 purpose of circumventing a technological protection

11 measure that effectively controls access to a work

12 protected under title 17,

13 ‘‘(B) has only limited commercially significant

14 purpose or use other than to circumvent a techno15 logical protection measure that effectively controls

16 access to a work protected under title 17, or

17 ‘‘(C) is marketed by that person or another act18 ing in concert with that person for use in cir19 cumventing a technological protection measure that

20 effectively controls access to a work protected under

21 title 17.

22 ‘‘(3) As used in this subsection—

23 ‘‘(A) ‘circumvent a technological protection

24 measure’ means to descramble a scrambled work, to

25 decrypt an encrypted work, or otherwise to avoid,

26 bypass, remove, deactivate, or impair a technological
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1 protection measure, without the authority of the

2 copyright owner;

3 ‘‘(B) a technological protection measure ‘effec4 tively controls access to a work’ if the measure, in

5 the ordinary course of its operation, requires the ap6 plication of information, or a process or a treatment,

7 with the authority of the copyright owner, to gain

8 access to the work.

9 ‘‘(b)(1) No person shall manufacture, import, offer

10 to the public, provide or otherwise traffic in any tech11 nology, product, service, device, component, or part there12 of that—

13 ‘‘(A) is primarily designed or produced for the

14 purpose of circumventing protection afforded by a

15 technological protection measure that effectively pro16 tects a right of a copyright owner under title 17 in

17 a work or a portion thereof;

18 ‘‘(B) has only limited commercially significant

19 purpose or use other than to circumvent protection

20 afforded by a technological protection measure that

21 effectively protects a right of a copyright owner

22 under title 17 in a work or a portion thereof; or

23 ‘‘(C) is marketed by that person or another act24 ing in concert with that person for use in cir25 cumventing protection afforded by a technological
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1 protection measure that effectively protects a right

2 of a copyright owner under title 17 in a work or a

3 portion thereof.

4 ‘‘(2) As used in this subsection—

5 ‘‘(A) ‘circumvent protection afforded by a tech6 nological protection measure’ means avoiding, by7 passing, removing, deactivating, or otherwise impair8 ing a technological protection measure;

9 ‘‘(B) a technological protection measure ‘effec10 tively protects a right of a copyright owner under

11 title 17’ if the measure, in the ordinary course of its

12 operation, prevents, restricts, or otherwise limits the

13 exercise of a right of a copyright owner under title

14 17.

15 ‘‘(c) The importation into the United States, the sale

16 for importation, or the sale within the United States after

17 importation by the owner, importer or consignee of any

18 technology, product, service, device, component, or part

19 thereof as described in this section shall be actionable

20 under section 1337 of title 19.

21 ‘‘(d) Nothing in this section shall affect rights, rem22 edies, limitations, or defenses to copyright infringement,

23 including fair use, under title 17.

24 ‘‘(e) This section does not prohibit any lawfully au25 thorized investigative, protective, or intelligence activity of
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1 a law enforcement agency of the United States, a State,

2 or a political subdivision of a State, or of an intelligence

3 agency of the United States.

4 ‘‘§ 1202. Integrity of copyright management informa5 tion

6 ‘‘(a) FALSE COPYRIGHT MANAGEMENT INFORMA7 TION.—No person shall knowingly—

8 ‘‘(1) provide copyright management information

9 that is false, or

10 ‘‘(2) distribute or import for distribution copy11 right management information that is false, with the

12 intent to induce, enable, facilitate or conceal an in13 fringement of any right under title 17.

14 ‘‘(b) REMOVAL OR ALTERATION OF COPYRIGHT

15 MANAGEMENT INFORMATION.—No person shall, without

16 the authority of the copyright owner or the law—

17 ‘‘(1) intentionally remove or alter any copyright

18 management information,

19 ‘‘(2) distribute or import for distribution copy20 right management information knowing that the

21 copyright management information has been re22 moved or altered without authority of the copyright

23 owner or the law, or

24 ‘‘(3) distribute, import for distribution, or pub25 licly perform works, copies of works, or
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1 phonorecords knowing that copyright management

2 information has been removed or altered without au3 thority of the copyright owner or the law,

4 knowing, or, with respect to civil remedies under section

5 1203, having reasonable grounds to know, that it will in6 duce, enable, facilitate or conceal an infringement of any

7 right under title 17.

8 ‘‘(c) DEFINITION.—As used in this chapter, ‘copy9 right management information’ means the following infor10 mation conveyed in connection with copies or phonorecords

11 of a work or performances or displays of a work, including

12 in digital form—

13 ‘‘(1) the title and other information identifying

14 the work, including the information set forth on a

15 notice of copyright;

16 ‘‘(2) the name of, and other identifying infor17 mation about, the author of a work;

18 ‘‘(3) the name of, and other identifying infor19 mation about, the copyright owner of the work, in20 cluding the information set forth in a notice of copy21 right;

22 ‘‘(4) terms and conditions for use of the work;

23 ‘‘(5) identifying numbers of symbols referring

24 to such information or links to such information; or
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1 ‘‘(6) such other information as the Register of

2 Copyrights may prescribe by regulation, except that

3 the Register of Copyrights may not require the pro4 vision of any information concerning the user of a

5 copyrighted work.

6 ‘‘(d) This section does not prohibit any lawfully au7 thorized investigative, protective, or intelligence activity of

8 a law enforcement agency of the United States, a State,

9 or a political subdivision of a State, or of an intelligence

10 agency of the United States.

11 ‘‘§ 1203. Civil remedies

12 ‘‘(a) CIVIL ACTIONS.—Any person injured by a viola13 tion of section 1201 or 1202 may bring a civil action in

14 an appropriate United States district court for such viola15 tion.

16 ‘‘(b) POWERS OF THE COURT.—In an action brought

17 under subsection (a), the court—

18 ‘‘(1) may grant temporary and permanent in19 junctions on such terms as it deems reasonable to

20 prevent or restrain a violation;

21 ‘‘(2) at any time while an action is pending,

22 may order the impounding, on such terms as it

23 deems reasonable, of any device or product that is

24 in the custody or control of the alleged violator and
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1 that the court has reasonable cause to believe was

2 involved in a violation;

3 ‘‘(3) may award damages under subsection (c);

4 ‘‘(4) in its discretion may allow the recovery of

5 costs by or against any party other than the United

6 States or an officer thereof;

7 ‘‘(5) in its discretion may award reasonable at8 torney’s fees to the prevailing party; and

9 ‘‘(6) may, as part of a final judgment or decree

10 finding a violation, order the remedial modification

11 or the destruction of any device or product involved

12 in the violation that is in the custody or control of

13 the violator or has been impounded under subsection

14 (2).

15 ‘‘(c) AWARD OF DAMAGES.—

16 ‘‘(1) IN GENERAL.—Except as otherwise pro17 vided in this chapter, a person committing a viola18 tion of section 1201 or 1202 is liable for either—

19 ‘‘(A) the actual damages and any addi20 tional profits of the violator, as provided by

21 subsection (2), or

22 ‘‘(B) statutory damages, as provided by

23 subsection (3).

24 ‘‘(2) ACTUAL DAMAGES.—The court shall

25 award to the complaining party the actual damages
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1 suffered by the party as a result of the violation,

2 and any profits of the violator that are attributable

3 to the violation and are not taken into account in

4 computing the actual damages, if the complaining

5 party elects such damages at any time before final

6 judgment is entered.

7 ‘‘(3) STATUTORY DAMAGES.—

8 ‘‘(A) At any time before final judgment is

9 entered, a complaining party may elect to re10 cover an award of statutory damages for each

11 violation of section 1201 in the sum of not less

12 than $200 or more than $2,500 per act of cir13 cumvention, device, product, component, offer

14 or performance of service, as the court consid15 ers just.

16 ‘‘(B) At any time before final judgment is

17 entered, a complaining party may elect to re18 cover an award of statutory damages for each

19 violation of section 1202 in the sum of not less

20 than $2,500 or more than $25,000.

21 ‘‘(4) REPEATED VIOLATIONS.—In any case in

22 which the injured party sustains the burden of prov23 ing, and the court finds, that a person has violated

24 section 1201 or 1202 within three years after a final

25 judgment was entered against the person for another
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1 such violation, the court may increase the award of

2 damages up to triple the amount that would other3 wise be awarded, as the court considers just.

4 ‘‘(5) INNOCENT VIOLATIONS.—The court in its

5 discretion may reduce or remit the total award of

6 damages in any case in which the violator sustains

7 the burden of proving, and the court finds, that the

8 violator was not aware and had no reason to believe

9 that its acts constituted a violation.

10 ‘‘§ 1204. Criminal offenses and penalties

11 ‘‘(a) Any person who violates section 1201 or 1202

12 willfully and for purposes of commercial advantage or pri13 vate financial gain shall be fined not more than $500,000

14 or imprisoned for not more than 5 years, or both for the

15 first offense and shall be fined not more than $1,000,000

16 or imprisoned for not more than 10 years, or both for any

17 subsequent offense.

18 ‘‘(b) Notwithstanding section 507(a) of this title, no

19 criminal proceeding shall be brought under section 1204

20 unless such proceeding is commenced within five years

21 after the cause of action arose.’’

22 SEC. 4. CONFORMING AMENDMENTS.

23 The table of chapters for Title 17, United States

24 Code, is amended by adding at the end the following:

‘‘12. Copyright Protection and Management Systems ............................. 1201’’
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1 SEC. 5. EFFECTIVE DATE.

2 The amendments made by this Act shall take effect

3 on the date of the enactment of this Act, except clause

4 (5) of the definition of ‘‘international agreement’’ as

5 amended by section 2(a)(8) of this Act, section 2(a)(10)

6 of this Act, clause (C) of section 104(h)(1) of title 17 as

7 amended by section 2(c)(1) of this Act and clause (C) of

8 section 104(h)(3) of title 17 as amended by section 2(c)(2)

9 of this Act shall take effect upon entry into force of the

10 WIPO Copyright Treaty with respect to the United States,

11 and clause (6) of the definition of ‘‘international agree12 ment’’ as amended by section 2(a)(8) of this Act, section

13 2(a)(11) of this Act, section 2(b)(7) of this Act, clause

14 (D) of section 104A(h)(1) of title 17 as amended by sec15 tion 2(c)(2) of this Act, and sections 2(c)(4) and 2(c)(5)

16 of this Act shall take effect upon entry into force of the

17 WIPO Performances and Phonograms Treaty with respect

18 to the United States.

Æ