WIPO Copyright Treaties Implementation Act

HR 2281 IH
WIPO Copyright Treaties Implementation Act

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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.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

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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.

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