Union Calendar No. 362
105TH CONGRESS
2D SESSION
H. R. 2281
[Report No. 105–551, Parts I and II]
A BILL
To amend title 17, United States Code, to imple-
ment the World Intellectual Property Organiza-
tion Copyright Treaty and Performances and
Phonograms Treaty.
JULY 22, 1998
Reported from the Committee on Commerce with an
amendment
JULY 22, 1998
The Committee on Ways and Means discharged; commit-
ted to the Committee of the Whole House on the State
of the Union and ordered to be printed
IB
Union Calendar No. 362
105TH CONGRESS
2D SESSION
H. R. 2281
[Report No. 105–551, Parts I and II]
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 Massa-
chusetts) introduced the following bill; which was referred to the Commit-
tee on the Judiciary
MAY 22, 1998
Reported with an amendment, referred to the Committees on Commerce and
Ways and Means for a period ending not later than June 19, 1998, for
consideration of such provisions of the bill and amendment as fall within
the jurisdictions of those committees pursuant to clause 1(e) and (s), rule
X, respectively
[Strike out all after the enacting clause and insert the part printed in italic]
JUNE 19, 1998
Referral to the Committees on Commerce and Ways and Means extended for
a period ending not later than June 26, 1998
JUNE 25, 1998
Referral to the Committees on Commerce and Ways and Means extended for
a period ending not later than July 21, 1998
JULY 21, 1998
Referral to the Committees on Commerce and Ways and Means extended for
a period ending not later than July 22, 1998
JULY 22, 1998
Reported from the Committee on Commerce with an amendment
[Strike out all after the enacting clause and insert the part printed in boldface roman]
JULY 22, 1998
Additional sponsors: Mr. BONO, Mr. MCCOLLUM, Mr. BERMAN, Mrs. BONO,
Mr. PAXON, and Mr. PICKERING
JULY 22, 1998
The Committee on Ways and Means discharged; committed to the Committee
of the Whole House on the State of the Union and ordered to be printed
[For text of introduced bill, see copy of bill as introduced on July 29, 1997]
A BILL
To amend title 17, United States Code, to implement the
World Intellectual Property Organization Copyright
Treaty and Performances and Phonograms Treaty.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
TITLE I—WIPO COPYRIGHT
TREATIES IMPLEMENTATION
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘WIPO Copyright Trea-
ties Implementation Act’’.
SEC. 102. TECHNICAL AMENDMENTS.
(a) DEFINITIONS.—Section 101 of title 17, United
States Code, is amended—
(1) by striking the definition of ‘‘Berne Conven-
tion 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 Conven-
tion 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 ‘‘includ-
ing’’ 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 ‘‘trans-
mit’’ the following:
‘‘A ‘treaty party’ is a country or intergovern-
mental 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.’’;
(D) by redesignating paragraph (3) as
paragraph (5) and inserting it after paragraph
(4);
(E) by inserting after paragraph (2) the fol-
lowing:
‘‘(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 architec-
tural 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 sub-
section:
‘‘(d) EFFECT OF PHONOGRAMS TREATIES.—Notwith-
standing 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 Con-
vention;
‘‘(B) a WTO member country;
‘‘(C) a nation adhering to the WIPO Copy-
right Treaty;
‘‘(D) a nation adhering to the WIPO Per-
formances and Phonograms Treaty; or
‘‘(E) subject to a Presidential proclamation
under subsection (g).’’;
(2) by amending paragraph (3) to read as fol-
lows:
‘‘(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 adher-
ing to the Berne Convention;
‘‘(C) adheres to the WIPO Copyright Trea-
ty;
‘‘(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 adher-
ence to the WIPO Performances and Phonograms
Treaty, is a sound recording.’’;
(4) in paragraph (8)(B)(i)—
(A) by inserting ‘‘of which’’ before ‘‘the ma-
jority’’; 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. 103. COPYRIGHT PROTECTIONS SYSTEMS AND COPY-
RIGHT MANAGEMENT INFORMATION.
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 copyright protection systems.
‘‘1202. Integrity of copyright management information.
‘‘1203. Civil remedies.
‘‘1204. Criminal offenses and penalties.
‘‘§ 1201. Circumvention of copyright protection sys-
tems
‘‘(a) VIOLATIONS REGARDING CIRCUMVENTION
OF
TECHNOLOGICAL PROTECTION MEASURES.—(1) No person
shall circumvent a technological protection measure that ef-
fectively 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 pro-
tected under this title;
‘‘(B) has only limited commercially significant
purpose or use other than to circumvent a techno-
logical protection measure that effectively controls ac-
cess to a work protected under this title; or
‘‘(C) is marketed by that person or another act-
ing 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, by-
pass, remove, deactivate, or impair a technological
protection measure, without the authority of the copy-
right owner; and
‘‘(B) a technological protection measure ‘effec-
tively controls access to a work’ if the measure, in the
ordinary course of its operation, requires the applica-
tion 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 other-
wise traffic in any technology, product, service, device, com-
ponent, or part thereof, that—
‘‘(A) is primarily designed or produced for the
purpose of circumventing protection afforded by a
technological protection measure that effectively pro-
tects 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 af-
forded by a technological protection measure that ef-
fectively 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 act-
ing in concert with that person with that person’s
knowledge for use in circumventing protection af-
forded by a technological protection measure that ef-
‘‘(4) This subsection may not be used as a defense to
a claim under subsection (a)(2) or (b), nor may this sub-
section permit a nonprofit library, archives, or educational
institution to manufacture, import, offer to the public, pro-
vide, or otherwise traffic in any technology which cir-
cumvents 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 re-
search in a specialized field.
‘‘(f) LAW ENFORCEMENT AND INTELLIGENCE ACTIVI-
TIES.—This section does not prohibit any lawfully author-
ized 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 agen-
cy of the United States.
‘‘§ 1202. Integrity of copyright management informa-
tion
‘‘(a) FALSE
COPYRIGHT
MANAGEMENT
INFORMA-
TION.—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 in-
fringement.
‘‘(b) REMOVAL OR ALTERATION OF COPYRIGHT MAN-
AGEMENT INFORMATION.—No person shall, without the au-
thority of the copyright owner or the law—
‘‘(1) intentionally remove or alter any copyright
management information,
‘‘(2) distribute or import for distribution copy-
right 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 pub-
licly 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 in-
duce, 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 no-
tice of copyright.
‘‘(2) The name of, and other identifying infor-
mation about, the author of a work.
‘‘(3) The name of, and other identifying infor-
mation about, the copyright owner of the work, in-
cluding the information set forth in a notice of copy-
right.
‘‘(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, per-
former, or director who is credited in the audiovisual
work.
‘‘(6) Identifying numbers or symbols referring to
such information or links to such information.
‘‘(7) Such other information as the Register of
Copyrights may prescribe by regulation, but not in-
cluding any information concerning the user of a
copyrighted work.
‘‘(d) LAW ENFORCEMENT AND INTELLIGENCE ACTIVI-
TIES.—This section does not prohibit any lawfully author-
ized 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 agen-
cy of the United States.
‘‘§ 1203. Civil remedies
‘‘(a) CIVIL ACTIONS.—Any person injured by a viola-
tion of section 1201 or 1202 may bring a civil action in
an appropriate United States district court for such viola-
tion.
‘‘(b) POWERS OF THE COURT.—In an action brought
under subsection (a), the court—
‘‘(1) may grant temporary and permanent in-
junctions on such terms as it deems reasonable to pre-
vent 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 at-
torney’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 addi-
tional 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 vio-
lation 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 cir-
cumvention, device, product, component, offer, or per-
formance of service, as the court considers just.
‘‘(B) At any time before final judgment is en-
tered, a complaining party may elect to recover an
award of statutory damages for each violation of sec-
tion 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 prov-
ing, 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.—
‘‘(A) IN GENERAL.—The court in its discre-
tion may reduce or remit the total award of
damages in any case in which the violator sus-
tains the burden of proving, and the court finds,
that the violator was not aware and had no rea-
son to believe that its acts constituted a viola-
tion.
‘‘(B) NONPROFIT
LIBRARY, ARCHIVES, OR
EDUCATIONAL
INSTITUTION.—In the case of a
nonprofit library, archives, or educational insti-
tution, the court shall remit damages in any case
in which the library, archives, or educational in-
stitution sustains the burden of proving, and the
court finds, that the library, archives, or edu-
cational institution was not aware and had no
reason to believe that its acts constituted a viola-
tion.
‘‘§ 1204. Criminal offenses and penalties
‘‘(a) IN GENERAL.—Any person who violates section
1201 or 1202 willfully and for purposes of commercial ad-
vantage 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, AR-
CHIVES, OR EDUCATIONAL INSTITUTION.—Subsection (a)
shall not apply to a nonprofit library, archives, or edu-
cational institution.
‘‘(c) STATUTE OF LIMITATIONS.—Notwithstanding sec-
tion 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. 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 INTER-
NATIONAL AGREEMENTS.—(1) The following shall take ef-
fect upon the entry into force of the WIPO Copyright Treaty
with respect to the United States:
(A) Paragraph (5) of the definition of ‘‘inter-
national agreement’’ contained in section 101 of title
17, United States Code, as amended by section
102(a)(4) of this Act.
(B) The amendment made by section 102(a)(6)
of this Act.
(C) Subparagraph (C) of section 104(h)(1) of
title 17, United States Code, as amended by section
102(c)(1) of this Act.
(D) Subparagraph (C) of section 104(h)(3) of
title 17, United States Code, as amended by section
102(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 ‘‘inter-
national agreement’’ contained in section 101 of title
17, United States Code, as amended by section
102(a)(4) of this Act.
(B) The amendment made by section 102(a)(7)
of this Act.
(C) The amendment made by section 102(b)(2) of
this Act.
(D) Subparagraph (D) of section 104(h)(1) of
title 17, United States Code, as amended by section
102(c)(1) of this Act.
(E) Subparagraph (D) of section 104(h)(3) of
title 17, United States Code, as amended by section
102(c)(2) of this Act.
(F) The amendments made by section 102(c)(3)
of this Act.
TITLE II—ON-LINE COPYRIGHT
INFRINGEMENT 
LIABILITY
LIMITATION
SEC. 201. SHORT TITLE.
This title may be cited as the ‘‘On-Line Copyright In-
fringement Liability Limitation Act’’.
SEC. 202. LIMITATIONS ON LIABILITY FOR COPYRIGHT IN-
FRINGEMENT.
(a) IN GENERAL.—Chapter 5 of title 17, United States
Code, is amended by adding after section 511 the following
new section:
‘‘§ 512. Limitations on liability relating to material
on-line
‘‘(a) LIMITATION.—Notwithstanding the provisions of
section 106, a provider shall not be liable for—
‘‘(1) direct infringement, based solely on the in-
termediate storage and transmission of material
through a system or network controlled or operated
by or for that provider, if—
‘‘(A) the transmission was initiated by an-
other person;
‘‘(B) the storage and transmission is car-
ried out through an automatic technological
process, without any selection of that material by
the provider; and
‘‘(C) no copy of the material thereby made
by the provider is maintained on the provider’s
system or network in a manner ordinarily acces-
sible to anyone other than the recipients antici-
pated by the person who initiated the trans-
mission, and no such copy is maintained on the
system or network in a manner ordinarily acces-
sible to such recipients for a longer period than
is reasonably necessary for the transmission;
‘‘(2) monetary relief under section 504 or 505 for
contributory infringement or vicarious liability, based
solely on conduct described in paragraph (1); or
‘‘(3) monetary relief under section 504 or 505 for
contributory infringement or vicarious liability, based
solely on transmitting or providing access to material
over that provider’s system or network, other than
conduct described in paragraph (1), if the provider—
‘‘(A) does not have actual knowledge that
the material is infringing or, in the absence of
such actual knowledge, is not aware of facts or
circumstances from which infringing activity is
apparent; and
‘‘(B) does not receive a financial benefit di-
rectly attributable to the infringing activity, if
the provider has the right and ability to control
such activity.
‘‘(b) PROTECTION OF PRIVACY.—Nothing in subsection
(a) shall be construed to condition the applicability of sub-
section (a) on a provider—
‘‘(1) monitoring its service or affirmatively seek-
ing facts indicating infringing activity, or
‘‘(2) accessing, removing, or disabling access to
material, if such conduct is prohibited by law.
‘‘(c) LIMITATION BASED UPON REMOVING OR DIS-
ABLING ACCESS TO INFRINGING MATERIAL.—A provider
shall not be liable to any person for any claim based on
that provider’s good faith disabling of access to or removal
of material 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.
‘‘(d) OTHER DEFENSES NOT AFFECTED.—Removing
or disabling access to material which a provider transmits
on-line or to which a provider provides on-line access, or
the failure to do so, shall not adversely bear upon the con-
sideration by a court of a defense to infringement asserted
by that provider on the basis of section 107 or any other
provision of law.
‘‘(e) MISREPRESENTATIONS.—Any person who know-
ingly materially misrepresents to a provider that material
on-line is infringing shall be liable for any damages, in-
cluding costs and attorneys’ fees, incurred by the provider,
by the alleged infringer, or by any copyright owner or copy-
right owner’s authorized licensee, who is injured by such
misrepresentation, as a result of the provider relying upon
such misrepresentation in removing or disabling access to
the material claimed to be infringing.
‘‘(f) DEFINITION.—As used in this section, the term
‘provider’ means a provider of on-line services or network
access.’’.
(b) 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. Limitations on liability relating to material on-line.’’.
SEC. 203. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER
PROGRAMS.
Section 117 of title 17, United States Code, is amend-
ed—
(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 follow-
ing:
‘‘(b) LEASE, SALE, OR OTHER TRANSFER OF ADDI-
TIONAL COPY OR ADAPTATION.—Any exact’’; and
(3) by adding at the end the following:
‘‘(c) MACHINE MAINTENANCE OR REPAIR.—Notwith-
standing the provisions of section 106, it is not an infringe-
ment for the owner or lessee of a machine to make or author-
ize 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 serv-
icing of the machine in order to make it work in ac-
cordance with its original specifications and any
changes to those specifications authorized for that ma-
chine; 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.’’.
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Digital Mil-
lennium 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. Circumvention of copyright protection systems.
Sec. 103. Integrity of copyright management information.
Sec. 104. Civil remedies.
Sec. 105. Criminal offenses and penalties.
Sec. 106. Savings clause.
Sec. 107. Development and implementation of technological
protection measures.
Sec. 108. Technical amendments.
Sec. 109. Effective date.
TITLE II—INTERNET COPYRIGHT INFRINGEMENT
LIABILITY
Sec. 201. Short title.
Sec. 202. Limitations on liability for Internet copyright in-
fringement.
Sec. 203. Limitations on exclusive rights; computer programs.
Sec. 204. Liability of educational institutions for online in-
fringement of copyright.
Sec. 205. Evaluation of impact of copyright law and amend-
ments on electronic commerce and technological
development.
Sec. 206. Effective date.
TITLE III—EPHEMERAL RECORDINGS; DISTANCE
EDUCATION; EXEMPTION FOR LIBRARIES AND ARCHIVES
Sec. 301. Ephemeral recordings.
Sec. 302. Limitations on exclusive rights; distance education.
Sec. 303. Exemption for libraries and archives.
TITLE IV—RELATED PROVISIONS
Sec. 401. Report by National Telecommunications and Informa-
tion Administration.
TITLE I—WIPO TREATIES
IMPLEMENTATION
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘WIPO Copy-
right Treaties Implementation Act’’.
SEC. 102. CIRCUMVENTION OF COPYRIGHT PROTECTION
SYSTEMS.
(a) VIOLATIONS REGARDING CIRCUMVENTION
OF TECHNOLOGICAL PROTECTION MEASURES.—
(1)(A) The Secretary of Commerce shall issue
regulations prohibiting any person from cir-
cumventing a technological protection meas-
ure that effectively controls access to a work
protected under title 17, United States Code,
to the extent provided in this subsection, ef-
fective at the end of the 2-year period begin-
ning on the date of the enactment of this Act.
(B) During the 2-year period described in
subparagraph (A), and in each succeeding 2-
year period, the Secretary of Commerce, in
consultation with the Assistant Secretary of
Commerce for Communications and Informa-
tion, the Commissioner of Patents and Trade-
marks, and the Register of Copyrights, shall
conduct a rulemaking on the record to deter-
mine whether users of copyrighted works
have been, or are likely to be in the succeed-
ing 2-year period, adversely affected by the
implementation of technological protection
measures that effectively control access to
works protected under title 17, United States
Code, in their ability to make lawful uses
under title 17, United States Code, of copy-
righted works. In conducting such rule-
making, the Secretary shall examine—
(i) the availability for use of copy-
righted works;
(ii) the availability for use of works
for 
archival, 
preservation, 
and 
edu-
cational purposes;
(iii) the impact of the application of
technological 
protection 
measures 
to
copyrighted works on criticism, com-
ment, news reporting, teaching, scholar-
ship, or research;
(iv) the effect of circumvention of
technological protection measures on the
market for or value of copyrighted works;
and
(v) such other factors as the Sec-
retary, in consultation with the Assistant
Secretary of Commerce for Communica-
tions and Information, the Commissioner
of Patents and Trademarks, and the Reg-
ister of Copyrights, considers appro-
priate.
(C) The Secretary, with respect to each
particular class of copyrighted works for
which the Secretary has determined, pursu-
ant to the rulemaking conducted under sub-
paragraph (B), that lawful uses have been, or
are likely to be, adversely affected, shall
waive the applicability of the regulations
issued under subparagraph (A) for the ensu-
ing 2-year period. The determinations made
in the rulemaking shall not be admissible in
any action to enforce any provision of this Act
other than this paragraph.
(2) No person shall manufacture, import,
offer to the public, provide, or otherwise traf-
fic in any technology, product, service, device,
component, or part thereof, that—
(A) is primarily designed or produced
for the purpose of circumventing a tech-
nological protection measure that effec-
tively controls access to a work protected
under title 17, United States Code;
(B) has only limited commercially sig-
nificant purpose or use other than to cir-
cumvent a technological protection meas-
ure that effectively controls access to a
work protected under title 17, United
States Code; or
(C) is marketed by that person or an-
other 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 title 17, United
States Code.
(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, with-
out the authority of the copyright owner;
and
(B) a technological protection meas-
ure ‘‘effectively controls access to a
work’’ if the measure, in the ordinary
course of its operation, requires the ap-
plication of information, or a process or a
treatment, with the authority of the copy-
right 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 tech-
nology, product, service, device, component,
or part thereof, that—
(A) is primarily designed or produced
for the purpose of circumventing protec-
tion afforded by a technological protec-
tion measure that effectively protects a
right of a copyright owner under title 17,
United States Code, in a work or a por-
tion thereof;
(B) has only limited commercially sig-
nificant purpose or use other than to cir-
cumvent protection afforded by a techno-
logical protection measure that effec-
tively protects a right of a copyright
owner under title 17, United States Code,
in a work or a portion thereof; or
(C) is marketed by that person or an-
other acting in concert with that person
with that person’s knowledge for use in
circumventing protection afforded by a
technological protection measure that ef-
fectively protects a right of a copyright
owner under title 17, United States Code,
in a work or a portion thereof.
(2) As used in this subsection—
(A) to ‘‘circumvent protection af-
forded by a technological protection
measure’’ means avoiding, bypassing, re-
moving, deactivating, or otherwise im-
pairing a technological protection meas-
ure; and
(B) a technological protection meas-
ure ‘‘effectively protects a right of a copy-
right owner under title 17, United States
Code’’ if the measure, in the ordinary
course of its operation, prevents, re-
stricts, or otherwise limits the exercise of
a right of a copyright owner under title
17, United States Code.
(c) OTHER RIGHTS, ETC., NOT AFFECTED.—
(1) Nothing in this section shall affect rights,
remedies, limitations, or defenses to copy-
right infringement, including fair use, under
title 17, United States Code.
(2) Nothing in this section shall enlarge or
diminish vicarious or contributory liability
for copyright infringement in connection with
any technology, product, service, device, com-
ponent, 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 elec-
tronics, telecommunications, or computing
product provide for a response to any particu-
lar technological protection measure.