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24 July 1998
Excerpt from full HR 2281 WIPO Copyright Treaty bill:
http://jya.com/hr2281rh.txt
See encryption research provisions
SEC. 102. CIRCUMVENTION OF COPYRIGHT PROTECTION SYSTEMS.
(a) Violations Regarding Circumvention of Technological Protection
Measures.--(1)(A) The Secretary of Commerce shall issue regulations
prohibiting any person from circumventing a technological protection
measure that effectively controls access to a work protected under
title 17, United States Code, to the extent provided in this
subsection, effective at the end of the 2-year period beginning on the
date of the enactment of this Act.
(B) During the 2-year period described in subparagraph (A), and in
each succeeding 2-year period, the Secretary of Commerce, in
consultation with the Assistant Secretary of Commerce for
Communications and Information, the Commissioner of Patents and
Trademarks, and the Register of Copyrights, shall conduct a rulemaking
on the record to determine whether users of copyrighted works have
been, or are likely to be in the succeeding 2-year period, adversely
affected by the implementation of technological protection measures
that effectively control access to works protected under title 17,
United States Code, in their ability to make lawful uses under title
17, United States Code, of copyrighted works. In conducting such
rulemaking, the Secretary shall examine--
(i) the availability for use of copyrighted works;
(ii) the availability for use of works for archival,
preservation, and educational purposes;
(iii) the impact of the application of technological
protection measures to copyrighted works on criticism, comment,
news reporting, teaching, scholarship, or research;
(iv) the effect of circumvention of technological
protection measures on the market for or value of copyrighted
works; and
(v) such other factors as the Secretary, in consultation
with the Assistant Secretary of Commerce for Communications and
Information, the Commissioner of Patents and Trademarks, and
the Register of Copyrights, considers appropriate.
(C) The Secretary, with respect to each particular class of
copyrighted works for which the Secretary has determined, pursuant to
the rulemaking conducted under subparagraph (B), that lawful uses have
been, or are likely to be, adversely affected, shall waive the
applicability of the regulations issued under subparagraph (A) for the
ensuing 2-year period. The determinations made in the rulemaking shall
not be admissible in any action to enforce any provision of this Act
other than this paragraph.
(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 title 17,
United States Code;
(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
title 17, United States Code; or
(C) is marketed by that person or another acting 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 title 17,
United States Code.
(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, 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 title 17, United States Code, 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 title 17, United States Code,
in a work or a portion thereof; or
(C) is marketed by that person or another acting in concert
with that person with that person's knowledge for use in
circumventing protection afforded by a technological protection
measure that effectively protects a right of a copyright owner
under title 17, United States Code, 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, 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 title 17, United
States Code'' 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 title 17, United
States Code.
(c) Other Rights, Etc., Not Affected.--(1) Nothing in this section
shall affect rights, remedies, limitations, or defenses to copyright
infringement, including fair use, under title 17, United States Code.
(2) Nothing in this section shall enlarge or diminish vicarious or
contributory liability for copyright infringement in connection with
any technology, product, service, device, component, or part thereof.
(3) Nothing in this section shall require that the design of, or
design and selection of parts and components for, a consumer
electronics, telecommunications, or computing product provide for a
response to any particular technological protection measure.
(4) Nothing in this section shall enlarge or diminish any rights of
free speech or the press for activities using consumer electronics,
telecommunications, or computing products.
(d) Exemption for Nonprofit Libraries, Archives, and Educational
Institutions.--(1) A nonprofit library, archives, or educational
institution which gains access to a commercially exploited copyrighted
work solely in order to make a good faith determination of whether to
acquire a copy of that work for the sole purpose of engaging in conduct
permitted under title 17, United States Code, shall not be in violation
of the regulations issued under subsection (a)(1)(A). A copy of a work
to which access has been gained under this paragraph--
(A) may not be retained longer than necessary to make such
good faith determination; and
(B) may not be used for any other purpose.
(2) The exemption made available under paragraph (1) shall only
apply with respect to a work when an identical copy of that work is not
reasonably available in another form.
(3) A nonprofit library, archives, or educational institution that
willfully for the purpose of commercial advantage or financial gain
violates paragraph (1)--
(A) shall, for the first offense, be subject to the civil
remedies under section 104; and
(B) shall, for repeated or subsequent offenses, in addition
to the civil remedies under section 104, forfeit the exemption
provided under paragraph (1).
(4) This subsection may not be used as a defense to a claim under
subsection (a)(2) or (b), nor may this subsection permit a nonprofit
library, archives, or educational institution to manufacture, import,
offer to the public, provide, or otherwise traffic in any technology,
product, service, component, or part thereof, which circumvents a
technological protection measure.
(5) In order for a library or archives to qualify for the exemption
under this subsection, the collections of that library or archives
shall be--
(A) open to the public; or
(B) available not only to researchers affiliated with the
library or archives or with the institution of which it is a
part, but also to other persons doing research in a specialized
field.
(e) Law Enforcement and Intelligence Activities.--This section does
not prohibit any lawfully authorized investigative, protective, or
intelligence activity of an officer, agent, or employee of the United
States, a State, or a political subdivision of a State, or a person
acting pursuant to a contract with the United States, a State, or a
political subdivision of a State.
(f) Reverse Engineering.--(1) Notwithstanding the regulations
issued under subsection (a)(1)(A), a person who has lawfully obtained
the right to use a copy of a computer program may circumvent a
technological protection measure that effectively controls access to a
particular portion of that program for the sole purpose of identifying
and analyzing those elements of the program that are necessary to
achieve interoperability of an independently created computer program
with other programs, and that have not previously been readily
available to the person engaging in the circumvention, to the extent
any such acts of identification and analysis do not constitute
infringement under title 17, United States Code.
(2) Notwithstanding the provisions of subsections (a)(2) and (b), a
person may develop and employ technological means to circumvent a
technological protection measure, or to circumvent protection afforded
by a technological protection measure, in order to make the
identification and analysis permitted under paragraph (1), or for the
limited purpose of achieving interoperability of an independently
created computer program with other programs, if such means are
necessary to achieve such interoperability, to the extent that doing so
does not constitute infringement under title 17, United States Code.
(3) The information acquired through the acts permitted under
paragraph (1), and the means permitted under paragraph (2), may be made
available to others if the person referred to in paragraph (1) or (2),
as the case may be, provides such information or means solely for the
purpose of achieving interoperability of an independently created
computer program with other programs, and to the extent that doing so
does not constitute infringement under title 17, United States Code, or
violate other applicable law.
(4) For purposes of this subsection, the term ``interoperability''
means the ability of computer programs to exchange information, and of
such programs mutually to use the information which has been exchanged.
(g) Encryption Research.--
(1) Definitions.--For purposes of this subsection--
(A) the term ``encryption research'' means
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; and
(B) the term ``encryption technology'' means the
scrambling and descrambling of information using
mathematical formulas or algorithms.
(2) Permissible acts of encryption research.--
Notwithstanding the provisions of subsection (a)(1)(A), it is
not a violation of the regulations issued under that subsection
for a person to circumvent a technological protection measure
as applied to a copy, phonorecord, performance, or display of a
published work in the course of an act of good faith encryption
research if--
(A) the person lawfully obtained the encrypted
copy, phonorecord, performance, or display of the
published work;
(B) such act is necessary to conduct such
encryption research;
(C) the person made a good faith effort to obtain
authorization before the circumvention; and
(D) such act does not constitute infringement under
title 17, United States Code, or a violation of
applicable law other than this section, including
section 1030 of title 18, United States Code, and those
provisions of title 18, United States Code, amended by
the Computer Fraud and Abuse Act of 1986.
(3) Factors in determining exemption.--In determining
whether a person qualifies for the exemption under paragraph
(2), the factors to be considered shall include--
(A) whether the information derived from the
encryption research was disseminated, and if so,
whether it was disseminated in a manner reasonably
calculated to advance the state of knowledge or
development of encryption technology, versus whether it
was disseminated in a manner that facilitates
infringement under title 17, United States Code, or a
violation of applicable law other than this section,
including a violation of privacy or breach of security;
(B) whether the person is engaged in a legitimate
course of study, is employed, or is appropriately
trained or experienced, in the field of encryption
technology; and
(C) whether the person provides the copyright owner
of the work to which the technological protection
measure is applied with notice of the findings and
documentation of the research, and the time when such
notice is provided.
(4) Use of technological means for research activities.--
Notwithstanding the provisions of subsection (a)(2), it is not
a violation of that subsection for a person to--
(A) develop and employ technological means to
circumvent a technological protection measure for the
sole purpose of performing the acts of good faith
encryption research described in paragraph (2); and
(B) provide the technological means to another
person with whom he or she is working collaboratively
for the purpose of conducting the acts of good faith
encryption research described in paragraph (2) or for
the purpose of having that other person verify his or
her acts of good faith encryption research described in
paragraph (2).
(5) Report to congress.--Not later than 1 year after the
date of the enactment of this Act, the Assistant Secretary of
Commerce for Communications and Information shall report to the
Congress on the effect this subsection has had on--
(A) encryption research and the development of
encryption technology;
(B) the adequacy and effectiveness of technological
protection for copyrighted works; and
(C) protection of copyright owners against the
unauthorized access to their encrypted copyrighted
works.
The Assistant Secretary shall include in such report
recommendations, if any, on proposed amendments to this Act.
(h) Components or Parts to Prevent Access of Minors to the
Internet.--In applying subsection (a) and the regulations issued under
subsection (a)(1)(A) to a component or part, the court may 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 title 17,
United States Code; and
(2) has the sole purpose to prevent the access of minors to
material on the Internet.
(i) Protection of Personally Identifying Information.--
(1) Circumvention permitted.--Notwithstanding the
provisions of subsection (a)(1)(A), it is not a violation of
the regulations issued under that subsection for a person to
circumvent a technological protection measure that effectively
controls access to a work protected under title 17, United
States Code, if--
(A) the technological protection measure, or the
work it protects, contains the capability of collecting
or disseminating personally identifying information
reflecting the online activities of a natural person
who seeks to gain access to the work protected;
(B) in the normal course of its operation, the
technological protection measure, or the work it
protects, collects or disseminates personally
identifying information about the person who seeks to
gain access to the work protected, without providing
conspicuous notice of such collection or dissemination
to such person, and without providing such person with
the capability to prevent or restrict such collection
or dissemination;
(C) the act of circumvention has the sole effect of
identifying and disabling the capability described in
subparagraph (A), and has no other effect on the
ability of any person to gain access to any work; and
(D) the act of circumvention is carried out solely
for the purpose of preventing the collection or
dissemination of personally identifying information
about a natural person who seeks to gain access to the
work protected, and is not in violation of any other
law.
(2) Inapplicability to certain technological protection
measures.--This subsection does not apply to a technological
protection measure, or a work it protects, that does not
collect or disseminate personally identifying information and
that is disclosed to a user as not having or using such
capability.