I
105TH CONGRESS
1ST SESSION
H. R. 3048
To update and preserve balance in the Copyright Act for the 21st Century;
to advance educational opportunities through distance learning; to imple-
ment the World Intellectual Property Organization Copyright Treaty,
and Performances and Phonograms Treaty, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 13, 1997
Mr. BOUCHER (for himself and Mr. CAMPBELL) introduced the following bill;
which was referred to the Committee on the Judiciary
A BILL
To update and preserve balance in the Copyright Act for
the 21st Century; to advance educational opportunities
through distance learning; to implement the World Intel-
lectual Property Organization Copyright Treaty and Per-
formances and Phonograms Treaty, and for other pur-
poses.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Digital Era Copyright
Enhancement Act’’.
SEC. 2. FAIR USE.
(a) TRANSMISSIONS.—The first sentence of section
107 of title 17, United States Code, is amended by insert-
ing after ‘‘or by any other means specified in that sec-
tion,’’ the following: ‘‘and by analog or digital trans-
mission,’’; and
(b) DETERMINATION.—Section 107 of title 17, Unit-
ed States Code, is amended by adding at the end thereof
the following:
‘‘In making a determination concerning fair use, no inde-
pendent weight shall be afforded to—
‘‘(1) the means by which the work has been
performed, displayed or distributed under the au-
thority of the copyright owner; or
‘‘(2) the application of an effective technological
measure (as defined under section 1201(c)) to the
work.’’.
SEC. 3. LIBRARY/ARCHIVE EXEMPTIONS.
Section 108 of title 17, United States Code, is
amended—
(1) by striking ‘‘Notwithstanding’’ at the begin-
ning of subsection (a) and inserting: ‘‘Except as oth-
erwise provided and notwithstanding’’;
(2) by inserting after ‘‘copyright’’ in subsection
(a)(3): ‘‘if such notice appears on the copy or phono-
record that is reproduced under the provisions of
this section’’;
(3) in subsection (b) by—
(A) deleting ‘‘a copy or phonorecord’’ and
inserting in lieu thereof: ‘‘three copies or
phonorecords’’; and
(B) deleting ‘‘in facsimile form’’; and
(4) in subsection (c) by—
(A) deleting ‘‘a copy or phonorecord’’ and
inserting in lieu thereof: ‘‘three copies or
phonorecords’’;
(B) deleting ‘‘in facsimile form’’; and
(C) inserting ‘‘or if the existing format in
which the work is stored has become obsolete,’’
after ‘‘stolen,’’.
SEC. 4. FIRST SALE.
Section 109 of title 17, United States Code, is
amended by adding the following new subsection at the
end thereof:
‘‘(f) The authorization for use set forth in subsection
(a) applies where the owner of a particular copy or phono-
record in a digital format lawfully made under this title,
or any person authorized by such owner, performs, dis-
plays or distributes the work by means of transmission
to a single recipient, if that person erases or destroys his
or her copy or phonorecord at substantially the same time.
The reproduction of the work, to the extent necessary for
such performance, display, distribution, is not an infringe-
ment.’’.
SEC. 5. DISTANCE LEARNING.
(a) TITLE CHANGE.—The title of section 110 of title
17, United States Code, is amended to read as follows:
‘‘ § 110. Limitations on exclusive rights: Exemption of
certain activities’’;
(b) PERFORMANCE, DISPLAY AND DISTRIBUTION OF
A WORK.—Section 110(2) of title 17, United States Code,
is amended to read as follows:
‘‘(2) performance, display or distribution of a
work, by or in the course of an analog or digital
transmission, if—
‘‘(A) the performance, display or distribu-
tion is a regular part of the systematic instruc-
tional activities of a governmental body or a
nonprofit educational institution;
‘‘(B) the performance, display or distribu-
tion is directly related and of material assist-
ance to the teaching content of the trans-
mission; and
‘‘(C) the work is provided for reception
by—
‘‘(i) students officially enrolled in the
course in connection with which it is pro-
vided; or
‘‘(ii) officers or employees of govern-
mental bodies as part of their official du-
ties or employment;’’
(c) EPHEMERAL RECORDINGS OF WORKS.—Section
112(b) of title 17, United States Code, is amended by de-
leting ‘‘transmit a performance or display of’’ and insert-
ing in lieu thereof: ‘‘perform, display or distribute’’.
SEC. 6. LIMITATIONS ON EXCLUSIVE RIGHTS.
(a) TITLE.—The title of section 117 of title 17, Unit-
ed States Code, is amended to read as follows:
‘‘ § Limitations on exclusive rights: Computer pro-
grams and digital copies’’;
(b) DIGITAL COPIES.—Section 117 of title 17, United
States Code, is amended by inserting ‘‘(a)’’ before ‘‘Not-
withstanding’’ and inserting the following as a new sub-
section (b):
‘‘(b) Notwithstanding the provisions of section 106,
it is not an infringement to make a copy of a work in
a digital format if such copying—
‘‘(1) is incidental to the operation of a device in
the course of the use of a work otherwise lawful
under this title; and
‘‘(2) does not conflict with the normal exploi-
tation of the work and does not unreasonably preju-
dice the legitimate interests of the author.’’.
SEC. 7. PREEMPTION.
Section 301(a) of title 17, United States Code, is
amended by inserting the following at the end thereof:
‘‘When a work is distributed to the public subject to non-
negotiable license terms, such terms shall not be enforce-
able under the common law or statutes of any state to
the extent that they—
‘‘(1) limit the reproduction, adaptation, dis-
tribution, performance, or display, by means of
transmission or otherwise, of material that is
uncopyrightable under section 102(b) or otherwise;
or
‘‘(2) abrogate or restrict the limitations on ex-
clusive rights specified in sections 107 through 114
and sections 117 and 118 of this title.’’.
SEC. 8. COPYRIGHT PROTECTION AND MANAGEMENT SYS-
TEMS.
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 certain technological measures.
‘‘1202. Integrity of copyright management information.
‘‘1203. Civil remedies.
‘‘§ 1201. Circumvention of certain technological meas-
ures
‘‘(a) CIRCUMVENTION CONDUCT.—No person, for the
purpose of facilitating or engaging in an act of infringe-
ment, shall engage in conduct so as knowingly to remove,
deactivate or otherwise circumvent the application or oper-
ation of any effective technological measure used by a
copyright owner to preclude or limit reproduction of a
work or a portion thereof. As used in this subsection, the
term ‘conduct’ does not include manufacturing, importing
or distributing a device or a computer program.
‘‘(b) CONDUCT GOVERNED
BY SEPARATE CHAP-
TER.—Notwithstanding subsection (a), this section shall
not apply with respect to conduct or the offer or perform-
ance of a service governed by a separate chapter of this
title.
‘‘(c) DEFINITION OF EFFECTIVE TECHNOLOGICAL
MEASURE.—As used in this section, the term ‘effective
technological measure’ means a change in the data com-
prising a work or a copy of a work transmitted in digital
format so as to protect the rights of a copyright owner
of such work or portion thereof under this title and
which—
‘‘(1) encrypts or scrambles the work or a por-
tion thereof in the absence of information supplied
by the copyright owner; or
‘‘(2) includes attributes with respect to access
or recording status that cannot be removed without
degrading the work or a portion thereof.
‘‘§ 1202. Integrity of copyright management informa-
tion
‘‘(a) FALSE COPYRIGHT MANAGEMENT INFORMA-
TION.—No person shall knowingly provide copyright man-
agement information that is false, or knowingly publicly
distribute or import for distribution copyright manage-
ment information that is false, with intent to induce, facili-
tate, or conceal infringement.
‘‘(b) REMOVAL
OR ALTERATION
OF COPYRIGHT
MANAGEMENT INFORMATION.—No person shall, without
authority of the copyright owner or other lawful authority,
knowingly and with intent to mislead or to induce or facili-
tate infringement—
‘‘(1) remove or alter any copyright management
information;
‘‘(2) publicly distribute or import for distribu-
tion a copy or phonorecord containing copyright
management information that has been altered with-
out authority of the copyright owner or other lawful
authority; or
‘‘(3) publicly distribute or import for distribu-
tion a copy or phonorecord from which copyright
management information has been removed without
authority of the copyright owner or other lawful au-
thority: Provided, That the conduct governed by this
subsection does not include the manufacturing, im-
porting or distributing of a device.
‘‘(c) DEFINITION OF COPYRIGHT MANAGEMENT IN-
FORMATION.—As used in this chapter, the term ‘copyright
management information’ means the following information
in electronic form as carried in or as data accompanying
a copy or phonorecord of a work, including in digital form:
‘‘(1) The title and other information identifying
the work, including the information set forth in a
notice of copyright;
‘‘(2) The name and other identifying informa-
tion of the author of the work;
‘‘(3) The name and other identifying informa-
tion of the copyright owner of the work, including
the information set forth in a notice of copyright;
‘‘(4) Terms and conditions for uses of the work;
‘‘(5) Identifying numbers or symbols referring
to such information or links to such information;
and
‘‘(6) Such other identifying information con-
cerning the work as the Register of Copyrights may
prescribe by regulation:
Provided, That the term ‘copyright management informa-
tion’ does not include the information described in section
1002, section 1201(c), or a chapter of this title other than
chapters one through nine of this title: Provided further,
That, in order to assure privacy protection, the term
‘copyright management information’ does not include any
personally identifiable information relating to the user of
a work, including but not limited to the name, account,
address or other contact information of or pertaining to
the user.
‘‘§ 1203. Civil remedies
‘‘(a) CIVIL ACTIONS.—Any person aggrieved by a vio-
lation of section 1201(a) or 1202 may bring a civil action
in an appropriate United States district court against any
person for such violation.
‘‘(b) POWERS OF THE COURT.—In an action brought
under subsection (a), the court—
‘‘(1) may grant a temporary and a permanent
injunction on such terms as it deems reasonable to
prevent or restrain a violation;
‘‘(2) may grant such other equitable relief as it
deems appropriate;
‘‘(3) may award damages pursuant to sub-
section (c);
‘‘(4) may allow the recovery of costs by or
against any party other than the United States or
an officer thereof; and
‘‘(5) may award a reasonable attorney’s fee to
the prevailing party.
‘‘(c) AWARD OF DAMAGES.—
‘‘(1) IN GENERAL.—If the court finds that a
violation of section 1201(a) or 1202 has occurred,
the complaining party may elect either actual dam-
ages as computed under paragraph (2) or statutory
damages as computed under paragraph (3).
‘‘(2) ACTUAL DAMAGES.—The court may award
to the complaining party the actual damages suf-
fered by him or her 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 com-
puting the actual damages, if the complaining party
elects such damages instead of statutory damages at
any time before final judgment is entered.
‘‘(3) STATUTORY
DAMAGES.—(A) The court
may award to the complaining party statutory dam-
ages for each violation of section 1201(a) of not less
than $250 or more than $2,500, as the court consid-
ers just, if the complaining party elects such dam-
ages instead of actual damages at any time before
final judgment is entered.
‘‘(B) The court may award to the complaining
party statutory damages for each violation of section
1202 of not less than $500 or more than $20,000,
as the court considers just, if the complaining party
elects such damages instead of actual damages at
any time before final judgment is entered.
‘‘(4) REPEATED VIOLATIONS.—In any case in
which the court finds that a person has violated sec-
tion 1201(a) or 1202 within three years after a final
judgment against that person for another such viola-
tion was entered, the court may increase the award
of damaages to not more than double the amount
that would otherwise be awarded under paragraph
(2) or (3), as the court considers just.
‘‘(5) INNOCENT VIOLATION.—The court may re-
duce or remit altogether the total award of damages
that otherwise would be awarded under paragraph
(2) or (3) 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 of section
1201(a) or 1202.’’.
SEC. 9. CONFORMING AMENDMENTS.
‘‘(a) TABLE OF SECTIONS.—The table of sections for
chapter 1 of title 17, United States Code, is amended by—
(1) Revising the item relating to section 110 to
read as follows:
‘‘110. Limitations on exclusive rights: Exemption of certain activities’’;
and
(2) Revising the item relating to section 117 to
read as follows:
‘‘117. Limitations on exclusive rights: computer programs and digital copies’’.
‘‘(b) TABLE OF CHAPTERS.—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. 10. EFFECTIVE DATES.
‘‘(a) IN GENERAL.—Sections one through seven and
section 9(a) of this Act, and the amendments made by
sections one through seven and section 9(a) of this Act,
shall take effect on the date of enactment of this Act.
‘‘(b) WIPO TREATIES.—Section 8 and section 9(b)
of this Act, and the amendments made by section 8 and
section 9(b) of this Act, shall take effect on the date on
which both the World Intellectual Property Organization
Copyright Treaty and the World Intellectual Property Or-
ganization Performances and Phonograms Treaty have
entered into force with respect to the United States.
Æ