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Pub.L. 105-305 To amend the High-Performance Computing Act of 1991 to authorize ...


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[[Page 2859]]

                    DIGITAL MILLENNIUM COPYRIGHT ACT

[[Page 112 STAT. 2860]]

Public Law 105-304
105th Congress

                                 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. <<NOTE: Oct. 28, 
                         1998 -  [H.R. 2281]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress <<NOTE: Digital Millennium 
Copyright Act.>> assembled,

SECTION 1. <<NOTE: 17 USC 101 note.>> SHORT TITLE.

    This Act may be cited as the ``Digital Millennium Copyright Act''.

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. Evaluation of impact of copyright law and amendments on 
           electronic 
           commerce and technological development.
Sec. 105. Effective date.

      TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

Sec. 201. Short title.
Sec. 202. Limitations on liability for copyright infringement.
Sec. 203. Effective date.

      TITLE III--COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

Sec. 301. Short title.
Sec. 302. Limitations on exclusive rights; computer programs.

                   TITLE IV--MISCELLANEOUS PROVISIONS

Sec. 401. Provisions Relating to the Commissioner of Patents and 
           Trademarks and the Register of Copyrights.
Sec. 402. Ephemeral recordings.
Sec. 403. Limitations on exclusive rights; distance education.
Sec. 404. Exemption for libraries and archives.
Sec. 405. Scope of exclusive rights in sound recordings; ephemeral 
           recordings.
Sec. 406. Assumption of contractual obligations related to transfers of 
           rights in 
           motion pictures.
Sec. 407. Effective date.

             TITLE V--PROTECTION OF CERTAIN ORIGINAL DESIGNS

Sec. 501. Short title.
Sec. 502. Protection of certain original designs.
Sec. 503. Conforming amendments.
Sec. 504. Joint study of the effect of this title.
Sec. 505. Effective date.

[[Page 112 STAT. 2861]]

  TITLE I--WIPO <<NOTE: WIPO Copyright and Performances and Phonograms 
    Treaties Implementation Act of 1998. 17 USC 101 note.>> 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) 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:

[[Page 112 STAT. 2862]]

            ``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

[[Page 112 STAT. 2863]]

                    ``(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. 103. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT MANAGEMENT 
            INFORMATION.

    (a) In General.--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.
``1205. Savings clause.

``Sec. 1201. Circumvention of copyright protection systems

    ``(a) Violations Regarding Circumvention of Technological 
Measures.--(1)(A) No person shall circumvent a technological measure 
that effectively controls access to a work protected

[[Page 112 STAT. 2864]]

under this title. <<NOTE: Effective date.>> The prohibition contained in 
the preceding sentence shall take effect at the end of the 2-year period 
beginning on the date of the enactment of this chapter.

    ``(B) The prohibition contained in subparagraph (A) shall not apply 
to persons who are users of a copyrighted work which is in a particular 
class of works, if such persons are, or are likely to be in the 
succeeding 3-year period, adversely affected by virtue of such 
prohibition in their ability to make noninfringing uses of that 
particular class of works under this title, as determined under 
subparagraph (C).
    ``(C) <<NOTE: Reports. Regulations.>> During the 2-year period 
described in subparagraph (A), and during each succeeding 3-year period, 
the Librarian of Congress, upon the recommendation of the Register of 
Copyrights, who shall consult with the Assistant Secretary for 
Communications and Information of the Department of Commerce and report 
and comment on his or her views in making such recommendation, shall 
make the determination in a rulemaking proceeding on the record for 
purposes of subparagraph (B) of whether persons who are users of a 
copyrighted work are, or are likely to be in the succeeding 3-year 
period, adversely affected by the prohibition under subparagraph (A) in 
their ability to make noninfringing uses under this title of a 
particular class of copyrighted works. In conducting such rulemaking, 
the Librarian shall examine--
            ``(i) the availability for use of copyrighted works;
            ``(ii) the availability for use of works for nonprofit 
        archival, preservation, and educational purposes;

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