Summary: H.R.2281 — 105th Congress (1997-1998)All Information (Except Text)

Bill summaries are authored by CRS.

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Conference report filed in House (10/08/1998)

TABLE OF CONTENTS:

Title I: WIPO Treaties Implementation

Title II: Online Copyright Infringement Liability Limitation

Title III: Computer Maintenance or Repair Copyright

Exemption

Title IV: Miscellaneous Provisions

Title V: Protection of Certain Original Designs

Digital Millennium Copyright Act - Title I: WIPO Treaties Implementation - WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 - Amends Federal copyright law to grant copyright protection to: (1) sound recordings that were first fixed in a treaty party (a country or intergovernmental organization other than the United States that is a party to specified international copyright and other agreements); and (2) pictorial, graphic, or sculptural works incorporated in a building or other structure or an architectural work embodied in a building located in the United States or a treaty party.

Treats works published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party as first published in the United States or a treaty party for purposes of conferring protection.

Provides that no works other than sound recordings shall be eligible for protection solely by virtue of U.S. adherence to the Geneva Phonograms Convention or the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty.

Revises the definition of "eligible country," for purposes of provisions regarding copyright in restored works, to include nations other than the United States that: (1) become World Trade Organization member countries after the date of enactment of the Uruguay Round Agreements Act; (2) are or become nations adhering to the Berne Convention; (3) adhere to the WIPO Copyright or Performances and Phonograms Treaties; or (4) become subject to a certain presidential proclamation of copyright restoration after such enactment date.

Includes sound recordings in the definition of "restored work" if the source country for the work is an eligible country solely by its adherence to the WIPO Performances and Phonograms Treaty.

(Sec. 103) Prohibits: (1) circumvention of technological measures that control access to protected works; or (2) manufacturing or trafficking in technology designed to circumvent measures that control access to, or protect rights of copyright owners in, such works.

Makes the prohibition effective at the end of the two-year period beginning on the enactment of this Act. Exempts persons who are users of a copyrighted work which is in a particular class if such persons are, or are likely to be in the succeeding three-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works. Requires, during the two-year period and during each succeeding three-year period, the Librarian of Congress, upon the recommendation of the Register of Copyrights, to make the determination in a rulemaking proceeding on the record of whether the individuals who are users of copyrighted work are adversely affected in their ability to make noninfringing uses of a particular class of copyrighted works. Requires the Librarian to publish any class of copyrighted works for which the Librarian determines, pursuant to the rulemaking procedure, that noninfringing uses by persons who are users of copyrighted work are, or are likely to be, adversely affected and that the prohibition is inapplicable to such users with respect to such class of works for the ensuring three-year period. Prohibits an exception from the applicability of the prohibition or any determination made in such rule making from being used as a defense in any action to enforce any provision of this title.

Specifies that nothing in this Act shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products.

Provides exemptions to such prohibition for: (1) nonprofit libraries, archives, or educational institutions which gain access to a commercially exploited copyrighted work solely to make a good faith determination of whether to acquire such work, subject to certain conditions; (2) lawfully authorized investigative, protective, information security, or intelligence activities of the United States, a State, or political subdivision of a State; and (3) purposes of achieving interoperability of computer programs. Defines "information security" as activities carried out in order to identify and address the vulnerabilities of a government computer, computer system, or computer network.

Specifies: (1) conditions under which a person is allowed to circumvent technological measures as applied to a copy, phonorecord, performance, or display of a published work in the course of an act of good faith encryption research and the use of technological means for such encryption research activities; and (2) factors to be considered in determining whether the person qualifies for such exemption. Defines "encryption research" as activities necessary to identify and analyze flaws and vulnerabilities of encryption technologies applied to copyrighted works, if these activities are conducted to advance the state of knowledge in the field of encryption technology or to assist in the development of encryption products.

Requires the Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce to jointly report to the Congress, along with legislative recommendations, if any, on the effect this Act has had on: (1) encryption research and the development of encryption technology; (2) the adequacy and effectiveness of technological measures designed to protect copyrighted works; and (3) protection of copyright owners against the unauthorized access to their encrypted copyrighted works.

Permits the court, in applying this Act to a component or part, to consider the necessity for its intended and actual incorporation in a technology, product, service, or device which: (1) does not itself violate the provisions of this title; and (2) has the sole purpose to prevent the access of minors to material on the Internet.

Sets forth provisions regarding: (1) protection of personally identifying information; (2) inapplicability to certain technological measures; (3) permissible acts of security testing and factors in determining an exemption for such testing; and (4) use of technological means for security testing.

Prohibits the manufacturing or trafficking of certain analog video cassette recorder devices and copy control technological measures unless they: (1) effective 18 months after enactment of this Act, conform to the automatic gain control copy control technology or the automatic gain control technology under certain conditions; or (2) effective on the enactment of this Act, have been modified after such date so if they previously conformed to the automatic gain control copy control technology they no longer conform or if they previously conformed to the four-line colorstripe copy control technology they no longer. Requires manufacturers that have not previously manufactured or sold a VHS format analog video cassette recorder or an 8mm format analog cassette recorder to conform to the four-line colorstripe copy control technology in the initial model of any such recorder manufactured after the enactment of this Act and thereafter to continue to do so.

Prohibits allowing a person to apply the automatic gain control copy control technology or colorstripe copy control technology to prevent or limit consumer copying, subject to exceptions.

Provides that this Act shall not: (1) require any analog video cassette camcorder to conform to the automatic gain control copy control technology with respect to any video signal received through a camera lens; (2) apply to the manufacturing or trafficking in any professional analog video cassette recorder; or (3) apply to the offer for sale or provision of, or other trafficking in, any previously owned analog video cassette recorder, if such recorder was legally manufactured and sold when new and not subsequently modified in violation of this Act.

Bars the provision or distribution of false copyright management information with the intent to induce or conceal infringement. Defines "copyright management information" as certain information, including title, name of author and copyright owner, and terms for use of the work, conveyed in connection with copies or phonorecords of a work or performances or displays, including in digital form, except that such term does not include any personally identifying information about a user of a work or of a copy, phonorecord, performance, or display of a work.

Provides exemptions to such prohibition for: (1) lawfully authorized investigative, protective, information security (as previously defined), or intelligence activities of the United States, a State, or political subdivision of a State; and (2) certain analog and digital transmissions by broadcast stations or cable systems.

Establishes civil remedies for violations regarding the circumvention of technological protection measures and the falsification of copyright management information.

Prescribes criminal penalties for willful violations committed for commercial advantage or private financial gain. Makes criminal penalties inapplicable to nonprofit libraries, archives, and educational institutions. Imposes a statute of limitations on criminal proceedings.

(Sec. 104) Requires the Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce to jointly evaluate and report to the Congress, along with any legislative recommendations on: (1) the effects of the amendments made by this title and the development of electronic commerce and associated technology on the operation of copyright law provisions concerning the disposition of a particular copy or phonorecord and the making of a copy or adaptation of a computer program; and (2) the relationship between existing and emergent technology and the operation of such provisions.

(Sec. 105) Provides that certain provisions of this title shall be effective as of enactment, except for specified provisions which shall be effective upon the entry into force of the WIPO Copyright and Performances and Phonograms Treaties.

Title II: Online Copyright Infringement Liability Limitation - Online Copyright Infringement Liability Limitation Act - Establishes limited liability for online copyright infringement for: (1) entities offering the transmission, routing, or providing of connections for digital online communications between points specified by a user of material of the user's choosing, without modification of the material; and (2) providers of online services or network access.

Describes specific circumstances that provide for limited liability, including cases in which material is stored on service provider systems or networks or where users are linked to an online location containing infringing materials or activity by using information location tools.

Makes liability limitations applicable only if a service provider has designated an agent to receive notifications of claimed infringement by making contact information available through its service, including on its website in a location accessible to the public, and to the Copyright Office. Sets forth requirements for such notifications.

Specifies conditions under which limitation on liability of nonprofit educational institutions shall apply.

Makes liable for damages persons who knowingly misrepresent that material or activity is infringing or that it was removed or disabled by mistake or misidentification.

Absolves service providers of liability with respect to claims based on good faith disabling of access to, or removal of, material or activity claimed to be infringing regardless of whether the material or activity is ultimately determined to be infringing. Sets forth additional conditions to be met by service providers with respect to such activities that involve service subscribers.

Makes liability limitations applicable only if a service provider: (1) implements and informs subscribers of a policy for terminating subscribers who are repeat infringers; and (2) accommodates and does not interfere with certain standard technical measures used by copyright owners to identify or protect copyrighted works.

Describes conditions under which a court may grant injunctive relief with respect to service providers.

Title III: Computer Maintenance or Repair Copyright Exemption - Computer Maintenance Competition Assurance Act -Provides that it is not a copyright infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program solely by activation of a machine that lawfully contains an authorized copy of the program for purposes only of maintenance or repair of that machine, provided: (1) such new copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed; and (2) any program or part thereof that is not necessary for machine activation is not accessed or used other than to make such new copy by activation of the machine.

Title IV: Miscellaneous Provisions - Adjusts the compensation of the Commissioner of Patents and Trademarks and the Register of Copyrights to that in effect for level III of the Executive Pay Schedule.

Includes the positions of Assistant Secretary of Commerce and Commissioner of Patents and Trademarks and the Register of Copyrights within the level III Executive Pay Schedule.

Modifies the duties and functions of the Register of Copyrights (Register) to include: (1) advising the Congress on national and international issues relating to copyright, other matters arising under this title, and related matters; (2) providing information and assistance to Federal departments and agencies and the Judiciary on national and international issues relating to copyright, other matters arising under this title, and related matters; (3) participating in meetings of international intergovernmental organizations and meetings with foreign government officials relating to copyright, other matters arising under this title, and related matters, including as a member of U.S. delegations as authorized by the appropriate executive branch authority; (4) conducting studies and programs regarding copyright, other matters arising under this title, and related matters, the administration of the Copyright Office, or any function vested in the Copyright Office by law, including educational programs conducted cooperatively with foreign intellectual property offices and international intergovernmental organizations; and (5) performing such other functions as the Congress may direct, or as may be appropriate in furtherance of the functions and duties specifically set forth in this title.

(Sec. 402) Expands certain limitations on exclusive rights with respect to ephemeral recordings to authorize licensed radio or television stations to make one copy or phonorecord of a broadcast of a performance of a sound recording in a digital format on a nonsubscription basis.

(Sec. 403) Directs the Register to submit to the Congress recommendations on how to promote distance education through digital technologies while maintaining a balance between the rights of copyright owners and the needs of users.

(Sec. 404) Expands certain rights of libraries and archives to reproduce and distribute copies or phonorecords to authorize three copies or phonorecords (currently, one) to be reproduced or distributed for preservation, security, or replacement purposes. Prohibits copies or phonorecords reproduced in digital format from being distributed otherwise, or available to the public outside library or archive premises, in such format.

Considers a format to be obsolete if the machine or device necessary to render perceptible a work stored in such format is no longer manufactured or reasonably available in the commercial marketplace.

(Sec. 405) Revises provisions concerning the performance of a sound recording publicly by means of a digital audio transmission, other than as a part of an interactive service, to permit such performance without copyright infringement if the performance is part of a nonsubscription broadcast (deletes two current exemptions). Revises provisions concerning statutory licensing of sound recordings to subject to statutory licensing (subject to specified conditions): (1) the performance of a sound recording publicly by means of a non-exempt subscription digital audio transmission; (2) an eligible nonsubscription transmission; or (3) a non-exempt transmission that is made by a preexisting satellite digital audio radio service. Revises procedures for determining reasonable rates and terms of royalty payments for such transmissions.

Specifies conditions under which a transmitting organization entitled to transmit to the public a performance of a sound recording, under the limitation on exclusive rights or under a statutory license for certain nonexempt transmissions, to make no more than one phonorecord of the sound recording (unless the terms and conditions of the statutory license allow for more). Allows copyright owners of sound recordings and transmitting organizations entitled to a statutory license to: (1) negotiate and agree upon royalty rates and license terms and conditions for making phonorecords of such sound recordings and the proportionate division of fees paid among copyright owners; and (2) designate common agents to negotiate, agree to, pay, or receive such royalty payments. Specifies procedures to determine the reasonable terms and rates of royalty payments for such statutory licenses. Sets forth conditions under which a person is allowed to make a phonorecord of a sound recording under a statutory license without infringing the exclusive right of the copyright owner.

Modifies the period in which the Librarian of Congress has to: (1) adopt or to reject the determination of a copyright arbitration royalty panel; and (2) issue an order setting the royalty fee or distribution of fees, as the case may be, if the Librarian rejects the panel's determination. States that when the royalty rates or terms that were previously in effect are to expire on a specified date, any adjustment by the Librarian of those rates or terms shall be effective as of the day following the date of expiration of the rates and terms that were previously in effect, even if the Librarian's decision is rendered on a later date.

(Sec. 406) Amends the Federal judicial code to provide, under specified conditions, in the case of a transfer of copyright ownership in a motion picture that is produced subject to one or more collective bargaining agreements negotiated under Federal laws, if the transfer is executed on or after the effective date of this Act and is not limited to public performance rights, the transfer instrument shall be deemed to incorporate the assumption agreements applicable to the copyright ownership being transferred that are required by the applicable collective bargaining agreement, and the transferee shall be subject to the obligations under each such assumption agreement to make residual payments and provide related notices, accruing after the effective date of the transfer and applicable to the exploitation of the rights transferred, and any remedies under each such assumption agreement for breach of those obligations, as they are set forth in the applicable collective bargaining agreement.

States that the exclusion of transfers of copyright ownership in a motion picture that are limited to public performance rights includes transfers to a terrestrial broadcast station, cable system, or programmer to the extent that the station, system, or programmer is functioning as an exhibitor of the motion picture, either by exhibiting the motion picture on its own network, system, service, or station, or by initiating the transmission of an exhibition that is carried on another network, system, service, or station. Provides that when a terrestrial broadcast station, cable system, or programmer, or other transferee, is also functioning otherwise as a distributor or as a producer of the motion picture, the public performance exclusion does not effect any obligations imposed on the transferee to the extent that it is engaging in such functions.

Specifies an exclusion for grants of security interests.

Requires the Comptroller General to study and report to the Congress on the conditions in the motion picture industry that gave rise to this Act and its impact on such industry.

Title V: Protection of Certain Original Designs - Vessel Hull Design Protection Act - Amends Federal copyright law to provide for protection of original designs of vessel hulls which make a vessel attractive or distinctive in appearance to the purchasing or using public.

Bars protection for designs that are: (1) not original; (2) staple or commonplace; (3) dictated solely by a utilitarian function of the article that embodies them; or (4) embodied in a useful article that was made public by the designer or owner more than one year before the date of application for registration.

Provides for ten-year terms of protection.

Sets forth marking and design notice requirements for protected designs. Bars recovery against persons who began undertakings leading to infringement before receiving notice. Places the burden of providing notice of protection on design owners.

Grants owners of protected designs exclusive rights to make, have made, import, sell, or distribute for sale or for use in trade any useful article embodying protected designs. Makes it infringement to engage in such activities with respect to infringing articles without an owner's consent. Provides that it shall not be infringement to: (1) engage in certain activities with respect to protected designs without knowledge; or (2) reproduce a protected design solely for purposes of teaching, analyzing, or evaluating the appearance, concepts, or techniques embodied in the design or the functions of the useful article embodying the design.

Places the burden of establishing a design's originality on the party alleging rights in a design.

Provides that protection shall be lost if application for design registration is not made within two years after the date on which the design is first made public.

Sets forth registration application requirements. Accords protection to designs with respect to which an application was filed by a U.S. owner in a foreign country on the date as filed if the U.S. application is filed within six months after the earliest date on which such foreign application was filed.

Sets forth provisions regarding: (1) determinations of registrations and procedures for cancelling registrations in cases where a party believes he or she may be damaged by registration; and (2) ownership and transfer of property rights of protected designs.

Authorizes design owners to seek judicial review of final refusals of the Register of Copyrights to register designs. Permits the use of arbitration to resolve infringement disputes. Authorizes injunctive relief to prevent infringement.

Provides for recovery of damages or the infringer's profits in infringement cases. Sets a three-year statute of limitations with respect to recovery for infringement. Authorizes the court to order or cancel registrations. Prescribes penalties for the filing of infringement actions with respect to fraudulently-obtained registrations or making false markings or representations.

Directs the Secretary of the Treasury and the Postal Service to issue regulations for the enforcement of exclusive rights with respect to importation of protected designs. Subjects articles imported in violation of such rights to seizure and forfeiture.

Terminates protection under this Act upon issuance of a design patent with respect to an original design.

Grants the U.S. district courts jurisdiction over actions arising under this Act.

(Sec. 504) Requires the Register of Copyrights and the Commissioner of Patents and Trademarks to jointly evaluate and report to specified congressional committees on the effect of the amendments made by this title.