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.