In the Senate of the United States,
September 17, 1998.
Resolved, That the bill from the House of Representa-
tives (H.R. 2281) entitled ‘‘An Act to amend title 17, United
States Code, to implement the World Intellectual Property
Organization Copyright Treaty and Performances and
Phonograms Treaty, and for other purposes.’’, do pass with
the following
AMENDMENT:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Digital Millennium
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. Technical amendments.
Sec. 103. Copyright protection systems and copyright management information.
Sec. 104. Conforming amendment.
Sec. 105. Effective date.
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TITLE II—INTERNET COPYRIGHT INFRINGEMENT LIABILITY
Sec. 201. Short title.
Sec. 202. Limitations on liability for Internet copyright infringement.
Sec. 203. Conforming amendment.
Sec. 204. Liability of educational institutions for online infringement of copy-
right.
Sec. 205. Effective date.
TITLE III—COMPUTER MAINTENANCE OR REPAIR
Sec. 301. Limitation on exclusive rights; computer programs.
TITLE IV—EPHEMERAL RECORDINGS; DISTANCE EDUCATION;
EXEMPTION FOR LIBRARIES AND ARCHIVES
Sec. 401. Ephemeral recordings.
Sec. 402. Limitations on exclusive rights; distance education.
Sec. 403. Exemption for libraries and archives.
TITLE I—WIPO TREATIES
IMPLEMENTATION
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘WIPO Copyright and
Performances and Phonograms Treaties Implementation
Act of 1998’’.
SEC. 102. TECHNICAL AMENDMENTS.
(a) Section 101 of title 17, United States Code, is
amended—
(1) by deleting the definition of ‘‘Berne Conven-
tion work’’;
(2) in the definition of ‘‘The ‘country of origin’
of a Berne Convention work’’, by deleting ‘‘The ‘coun-
try of origin’ of a Berne Convention work,’’, capital-
izing the first letter of the word ‘‘for’’, deleting ‘‘is the
United States’’ after ‘‘For purposes of section 411,’’,
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and inserting ‘‘a work is a ‘United States work’ only’’
after ‘‘For purposes of section 411,’’;
(3) in paragraph (1)(B) of the definition of ‘‘The
‘country of origin’ of a Berne Convention work’’, by
inserting ‘‘treaty party or parties’’ and deleting ‘‘na-
tion or nations adhering to the Berne Convention’’;
(4) in paragraph (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 paragraph (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 paragraph (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 Conven-
tion for the Protection of Producers of Phonograms
Against 
Unauthorized 
Duplication 
of 
Their
Phonograms, concluded at Geneva, Switzerland on
October 29, 1971.’’;
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(8) after the definition for ‘‘including’’, by in-
serting ‘‘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 insert-
ing ‘‘A ‘treaty party’ is a country or intergovern-
mental organization other than the United States that
is a party to an international agreement.’’;
(10) after the definition for ‘‘widow’’, by insert-
ing ‘‘The ‘WIPO Copyright Treaty’ is the WIPO
Copyright Treaty concluded at Geneva, Switzerland,
on December 20, 1996.’’;
(11) after the definition for ‘‘The ‘WIPO Copy-
right Treaty’, by inserting ‘‘The ‘WIPO Performances
and Phonograms Treaty’ is the WIPO Performances
and Phonograms Treaty concluded at Geneva, Swit-
zerland on December 20, 1996.’’; and
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(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 subsection (b)(1), by deleting ‘‘foreign na-
tion that is a party to a copyright treaty to which
the United States is also a party’’ and inserting
‘‘treaty party’’;
(2) in subsection (b)(2) by deleting ‘‘party to the
Universal Copyright Convention’’ and inserting
‘‘treaty party’’;
(3) by renumbering the present subsection (b)(3)
as (b)(5) and moving it to its proper sequential loca-
tion and inserting a new subsection (b)(3) to read:
‘‘(3) the work is a sound recording that was first
fixed in a treaty party; or’’;
(4) in subsection (b)(4) by deleting ‘‘Berne Con-
vention work’’ and inserting ‘‘pictorial, graphic or
sculptural work that is incorporated in a building or
other structure, or an architectural work that is em-
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bodied in a building and the building or structure is
located in the United States or a treaty party’’;
(5) by renumbering present subsection (b)(5) as
(b)(6);
(6) by inserting a new subsection (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 subsection (d) to read:
‘‘(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) 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—
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‘‘(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) 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 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).’’;
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(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 adher-
ence 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 in-
fringement 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 copy-
right in any’’.
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(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. 103. COPYRIGHT PROTECTION SYSTEMS AND COPY-
RIGHT 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.
‘‘1205. Savings Clause.
‘‘§ 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, prod-
uct, 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;
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‘‘(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-
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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-
fectively protects a right of a copyright owner under
this title in a work or a portion thereof.
‘‘(2) As used in this subsection—
‘‘(A) to ‘circumvent protection afforded by a
technological protection measure’ means avoiding, by-
passing, removing, deactivating, or otherwise impair-
ing a technological protection measure; and
‘‘(B) a technological protection measure ‘effec-
tively protects a right of a copyright owner under this
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title’ if the measure, in the ordinary course of its op-
eration, prevents, restricts, or otherwise limits the ex-
ercise of a right of a copyright owner under this title.
‘‘(c) OTHER RIGHTS, ETC., NOT AFFECTED.—(1)
Nothing in this section shall affect rights, remedies, limita-
tions, or defenses to copyright infringement, including fair
use, under this title.
‘‘(2) Nothing in this section shall enlarge or diminish
vicarious or contributory liability for copyright infringe-
ment in connection with any technology, product, service,
device, component or part thereof.
‘‘(3) Nothing in this section shall require that the de-
sign of, or design and selection of parts and components
for, a consumer electronics, telecommunications, or comput-
ing product provide for a response to any particular techno-
logical protection measure, so long as such part or compo-
nent or the product, in which such part or component is
integrated, does not otherwise fall within the prohibitions
of subsection (a)(2) or (b)(1).
‘‘(d) EXEMPTION
FOR NONPROFIT LIBRARIES, AR-
CHIVES, AND EDUCATIONAL INSTITUTIONS.—(1) A non-
profit library, archives, or educational institution which
gains access to a commercially exploited copyrighted work
solely in order to make a good faith determination of wheth-
er to acquire a copy of that work for the sole purpose of
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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