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One Hundred
Fifth Congress
of the United States of America
AT THE SECOND
SESSION
Begun and held at the City of
Washington on Tuesday, the twenty-seventh day of January, one
thousand nine hundred and ninety eight
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.
- Be it enacted by the
Senate and House of Representatives of the United States
of America in Congress assembled,
SECTION 1. SHORT TITLE.
- This Act may be cited as the
Digital Millennium Copyright Act'.
SEC. 2. TABLE OF CONTENTS.
- Sec. 2. Table of
contents.
TITLE I--WIPO TREATIES
IMPLEMENTATION
- 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. 202. Limitations
on liability for copyright infringement.
- Sec. 203. Effective
date.
TITLE III--COMPUTER MAINTENANCE
OR REPAIR COPYRIGHT EXEMPTION
- 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. 502. Protection
of certain original designs.
- Sec. 503. Conforming
amendments.
- Sec. 504. Joint study
of the effect of this title.
- Sec. 505. Effective
date.
TITLE I--WIPO
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';
- (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;
- (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--
- (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).';
- (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.
- 1204. Criminal
offenses and penalties.
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 under this title. 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) 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;
- (iii) the impact that
the prohibition on the circumvention of
technological measures applied to copyrighted
works has on criticism, comment, news reporting,
teaching, scholarship, or research;
- (iv) the effect of
circumvention of technological measures on the
market for or value of copyrighted works; and
- (v) such other
factors as the Librarian considers appropriate.
- (D) The Librarian shall
publish any class of copyrighted works for which the
Librarian has determined, pursuant to the rulemaking
conducted under subparagraph (C), that noninfringing uses
by persons who are users of a copyrighted work are, or
are likely to be, adversely affected, and the prohibition
contained in subparagraph (A) shall not apply to such
users with respect to such class of works for the ensuing
3-year period.
- (E) Neither the exception
under subparagraph (B) from the applicability of the
prohibition contained in subparagraph (A), nor any
determination made in a rulemaking conducted under
subparagraph (C), may be used as a defense in any action
to enforce any provision of this title 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 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 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 with that person's knowledge for use
in circumventing a technological measure that
effectively controls access to a work protected
under this title.
- (3) As used in this
subsection--
- (A) to circumvent a
technological measure' means to descramble a
scrambled work, to decrypt an encrypted work, or
otherwise to avoid, bypass, remove, deactivate,
or impair a technological measure, without the
authority of the copyright owner; and
- (B) a technological
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 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 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 with that person's knowledge for use
in circumventing protection afforded by a
technological 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) to circumvent
protection afforded by a technological measure'
means avoiding, bypassing, removing,
deactivating, or otherwise impairing a
technological measure; and
- (B) a technological
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) OTHER RIGHTS, ETC., NOT
AFFECTED- (1) Nothing in this section shall affect
rights, remedies, limitations, or defenses to copyright
infringement, including fair use, under this title.
- (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 measure, so long
as such part or component, or the product in which such
part or component is integrated, does not otherwise fall
within the prohibitions of subsection (a)(2) or (b)(1).
- (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 this title shall not be in violation of 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 1203; and
- (B) shall, for
repeated or subsequent offenses, in addition to
the civil remedies under section 1203, 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 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,
INTELLIGENCE, AND OTHER GOVERNMENT ACTIVITIES- This
section does not prohibit any lawfully authorized
investigative, protective, information security, 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. For purposes of this subsection,
the term information security' means activities carried
out in order to identify and address the vulnerabilities
of a government computer, computer system, or computer
network.
- (f) REVERSE ENGINEERING- (1)
Notwithstanding the provisions of subsection (a)(1)(A), a
person who has lawfully obtained the right to use a copy
of a computer program may circumvent a technological
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 this title.
- (2) Notwithstanding the
provisions of subsections (a)(2) and (b), a person may
develop and employ technological means to circumvent a
technological measure, or to circumvent protection
afforded by a technological measure, in order to enable
the identification and analysis under paragraph (1), or
for the purpose of enabling 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 this title.
- (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 enabling
interoperability of an independently created computer
program with other programs, and to the extent that doing
so does not constitute infringement under this title or
violate applicable law other than this section.
- (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.
- (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 that subsection for a person to
circumvent a technological 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
this title or a violation of applicable
law other than this section, including
section 1030 of title 18 and those
provisions of title 18 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 this title
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
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 measure for
the sole purpose of that person
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 chapter, the Register of
Copyrights and the Assistant Secretary for
Communications and Information of the Department
of Commerce shall jointly 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 measures designed to
protect copyrighted works; and
- (C)
protection of copyright owners against
the unauthorized access to their
encrypted copyrighted works.
- The report shall
include legislative recommendations, if any.
- (h) EXCEPTIONS REGARDING
MINORS- In applying subsection (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 this title; 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
that subsection for a person to circumvent a
technological measure that effectively controls
access to a work protected under this title, if--
- (A) the
technological 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 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 MEASURES- This
subsection does not apply to a technological
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.
- (1) DEFINITION- For purposes of this subsection,
the term security testing' means accessing a
computer, computer system, or computer network,
solely for the purpose of good faith testing,
investigating, or correcting, a security flaw or
vulnerability, with the authorization of the
owner or operator of such computer, computer
system, or computer network.
- (2) PERMISSIBLE ACTS OF SECURITY TESTING-
Notwithstanding the provisions of subsection (a)(1)(A),
it is not a violation of that subsection for a
person to engage in an act of security testing,
if such act does not constitute infringement
under this title or a violation of applicable law
other than this section, including section 1030
of title 18 and those provisions of title 18
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 security testing was used solely to
promote the security of the owner or
operator of such computer, computer
system or computer network, or shared
directly with the developer of such
computer, computer system, or computer
network; and
- (B) whether the information derived from
the security testing was used or
maintained in a manner that does not
facilitate infringement under this title
or a violation of applicable law other
than this section, including a violation
of privacy or breach of security.
- (4) USE OF TECHNOLOGICAL MEANS FOR SECURITY
TESTING- Notwithstanding the provisions of
subsection (a)(2), it is not a violation of that
subsection for a person to develop, produce,
distribute or employ technological means for the
sole purpose of performing the acts of security
testing described in subsection (2), provided
such technological means does not otherwise
violate section (a)(2).
- (k) CERTAIN ANALOG DEVICES AND CERTAIN TECHNOLOGICAL
MEASURES-
- (1) CERTAIN ANALOG DEVICES-
- (A) Effective 18 months after the date of
the enactment of this chapter, no person
shall manufacture, import, offer to the
public, provide or otherwise traffic in
any--
- (i) VHS format analog video
cassette recorder unless such
recorder conforms to the
automatic gain control copy
control technology;
- (ii) 8mm format analog video
cassette camcorder unless such
camcorder conforms to the
automatic gain control
technology;
- (iii) Beta format analog video
cassette recorder, unless such
recorder conforms to the
automatic gain control copy
control technology, except that
this requirement shall not apply
until there are 1,000 Beta format
analog video cassette recorders
sold in the United States in any
one calendar year after the date
of the enactment of this chapter;
- (iv) 8mm format analog video
cassette recorder that is not an
analog video cassette camcorder,
unless such recorder conforms to
the automatic gain control copy
control technology, except that
this requirement shall not apply
until there are 20,000 such
recorders sold in the United
States in any one calendar year
after the date of the enactment
of this chapter; or
- (v) analog video cassette
recorder that records using an
NTSC format video input and that
is not otherwise covered under
clauses (i) through (iv), unless
such device conforms to the
automatic gain control copy
control technology.
- (B) Effective on the date of the
enactment of this chapter, no person
shall manufacture, import, offer to the
public, provide or otherwise traffic in--
- (i) any VHS format analog video
cassette recorder or any 8mm
format analog video cassette
recorder if the design of the
model of such recorder has been
modified after such date of
enactment so that a model of
recorder that previously
conformed to the automatic gain
control copy control technology
no longer conforms to such
technology; or
- (ii) any VHS format analog video
cassette recorder, or any 8mm
format analog video cassette
recorder that is not an 8mm
analog video cassette camcorder,
if the design of the model of
such recorder has been modified
after such date of enactment so
that a model of recorder that
previously conformed to the four-line
colorstripe copy control
technology no longer conforms to
such technology.
- Manufacturers that have not previously
manufactured or sold a VHS format analog
video cassette recorder, or an 8mm format
analog cassette recorder, shall be
required to conform to the four-line
colorstripe copy control technology in
the initial model of any such recorder
manufactured after the date of the
enactment of this chapter, and thereafter
to continue conforming to the four-line
colorstripe copy control technology. For
purposes of this subparagraph, an analog
video cassette recorder conforms to' the
four-line colorstripe copy control
technology if it records a signal that,
when played back by the playback function
of that recorder in the normal viewing
mode, exhibits, on a reference display
device, a display containing distracting
visible lines through portions of the
viewable picture.
- (2) CERTAIN ENCODING RESTRICTIONS- No person
shall apply the automatic gain control copy
control technology or colorstripe copy control
technology to prevent or limit consumer copying
except such copying--
- (A) of a single transmission, or
specified group of transmissions, of live
events or of audiovisual works for which
a member of the public has exercised
choice in selecting the transmissions,
including the content of the
transmissions or the time of receipt of
such transmissions, or both, and as to
which such member is charged a separate
fee for each such transmission or
specified group of transmissions;
- (B) from a copy of a transmission of a
live event or an audiovisual work if such
transmission is provided by a channel or
service where payment is made by a member
of the public for such channel or service
in the form of a subscription fee that
entitles the member of the public to
receive all of the programming contained
in such channel or service;
- (C) from a physical medium containing one
or more prerecorded audiovisual works; or
- (D) from a copy of a transmission
described in subparagraph (A) or from a
copy made from a physical medium
described in subparagraph (C).
- In the event that a transmission meets both the
conditions set forth in subparagraph (A) and
those set forth in subparagraph (B), the
transmission shall be treated as a transmission
described in subparagraph (A).
- (3) INAPPLICABILITY- This subsection shall not--
- (A) 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;
- (B) apply to the manufacture,
importation, offer for sale, provision
of, or other trafficking in, any
professional analog video cassette
recorder; or
- (C) 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 paragraph (1)(B).
- (4) DEFINITIONS- For purposes of this subsection:
- (A) An analog video cassette recorder'
means a device that records, or a device
that includes a function that records, on
electromagnetic tape in an analog format
the electronic impulses produced by the
video and audio portions of a television
program, motion picture, or other form of
audiovisual work.
- (B) An analog video cassette camcorder'
means an analog video cassette recorder
that contains a recording function that
operates through a camera lens and
through a video input that may be
connected with a television or other
video playback device.
- (C) An analog video cassette recorder
conforms' to the automatic gain control
copy control technology if it--
- (i) detects one or more of the
elements of such technology and
does not record the motion
picture or transmission protected
by such technology; or
- (ii) records a signal that, when
played back, exhibits a
meaningfully distorted or
degraded display.
- (D) The term professional analog video
cassette recorder' means an analog video
cassette recorder that is designed,
manufactured, marketed, and intended for
use by a person who regularly employs
such a device for a lawful business or
industrial use, including making,
performing, displaying, distributing, or
transmitting copies of motion pictures on
a commercial scale.
- (E) The terms VHS format', 8mm format',
Beta format', automatic gain control copy
control technology', colorstripe copy
control technology', four-line version of
the colorstripe copy control technology',
and NTSC' have the meanings that are
commonly understood in the consumer
electronics and motion picture industries
as of the date of the enactment of this
chapter.
- (5) VIOLATIONS- Any violation of paragraph (1) of
this subsection shall be treated as a violation
of subsection (b)(1) of this section. Any
violation of paragraph (2) of this subsection
shall be deemed an act of circumvention' for the
purposes of section 1203(c)(3)(A) of this chapter.
Sec. 1202. Integrity of copyright management information
- (a) FALSE COPYRIGHT MANAGEMENT INFORMATION- No person
shall knowingly and with the intent to induce, enable,
facilitate, or conceal infringement--
- (1) provide copyright management information that
is false, or
- (2) distribute or import for distribution
copyright management information that is false.
- (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 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 section, the term
copyright management information' means any of the
following information conveyed in connection with copies
or phonorecords of a work or performances or displays of
a work, 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:
- (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) With the exception of public performances of
works by radio and television broadcast stations,
the name of, and other identifying information
about, a performer whose performance is fixed in
a work other than an audiovisual work.
- (5) With the exception of public performances of
works by radio and television broadcast stations,
in the case of an audiovisual work, the name of,
and other identifying information about, a
writer, performer, or director who is credited in
the audiovisual work.
- (6) Terms and conditions for use of the work.
- (7) Identifying numbers or symbols referring to
such information or links to such information.
- (8) 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, INTELLIGENCE, AND OTHER GOVERNMENT
ACTIVITIES- This section does not prohibit any lawfully
authorized investigative, protective, information
security, 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. For purposes of this subsection,
the term information security' means activities carried
out in order to identify and address the vulnerabilities
of a government computer, computer system, or computer
network.
- (e) LIMITATIONS ON LIABILITY-
- (1) ANALOG TRANSMISSIONS- In the case of an
analog transmission, a person who is making
transmissions in its capacity as a broadcast
station, or as a cable system, or someone who
provides programming to such station or system,
shall not be liable for a violation of subsection
(b) if--
- (A) avoiding the activity that
constitutes such violation is not
technically feasible or would create an
undue financial hardship on such person;
and
- (B) such person did not intend, by
engaging in such activity, to induce,
enable, facilitate, or conceal
infringement of a right under this title.
- (2) DIGITAL TRANSMISSIONS-
- (A) If a digital transmission standard
for the placement of copyright management
information for a category of works is
set in a voluntary, consensus standard-setting
process involving a representative cross-section
of broadcast stations or cable systems
and copyright owners of a category of
works that are intended for public
performance by such stations or systems,
a person identified in paragraph (1)
shall not be liable for a violation of
subsection (b) with respect to the
particular copyright management
information addressed by such standard if--
- (i) the placement of such
information by someone other than
such person is not in accordance
with such standard; and
- (ii) the activity that
constitutes such violation is not
intended to induce, enable,
facilitate, or conceal
infringement of a right under
this title.
- (B) Until a digital transmission standard
has been set pursuant to subparagraph (A)
with respect to the placement of
copyright management information for a
category or works, a person identified in
paragraph (1) shall not be liable for a
violation of subsection (b) with respect
to such copyright management information,
if the activity that constitutes such
violation is not intended to induce,
enable, facilitate, or conceal
infringement of a right under this title,
and if--
- (i) the transmission of such
information by such person would
result in a perceptible visual or
aural degradation of the digital
signal; or
- (ii) the transmission of such
information by such person would
conflict with--
- (I) an applicable
government regulation
relating to transmission
of information in a
digital signal;
- (II) an applicable
industry-wide standard
relating to the
transmission of
information in a digital
signal that was adopted
by a voluntary consensus
standards body prior to
the effective date of
this chapter; or
- (III) an applicable
industry-wide standard
relating to the
transmission of
information in a digital
signal that was adopted
in a voluntary, consensus
standards-setting process
open to participation by
a representative cross-section
of broadcast stations or
cable systems and
copyright owners of a
category of works that
are intended for public
performance by such
stations or systems.
- (3) DEFINITIONS- As used in this subsection--
- (A) the term broadcast station' has the
meaning given that term in section 3 of
the Communications Act of 1934 (47 U.S.C.
153); and
- (B) the term cable system' has the
meaning given that term in section 602 of
the Communications Act of 1934 (47 U.S.C.
522).
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, but in no event shall
impose a prior restraint on free speech or the
press protected under the 1st amendment to the
Constitution;
- (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).
- (1) IN GENERAL- Except as otherwise provided in
this title, 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 the 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.
- (A) IN GENERAL- 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.
- (B) NONPROFIT LIBRARY, ARCHIVES, OR
EDUCATIONAL INSTITUTIONS- In the case of
a nonprofit library, archives, or
educational institution, the court shall
remit damages in any case in which the
library, archives, or educational
institution sustains the burden of
proving, and the court finds, that the
library, archives, or educational
institution 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) LIMITATION FOR NONPROFIT LIBRARY, ARCHIVES, OR
EDUCATIONAL INSTITUTION- Subsection (a) shall not apply
to a nonprofit library, archives, or educational
institution.
- (c) STATUTE OF LIMITATIONS- No criminal proceeding shall
be brought under this section unless such proceeding is
commenced within 5 years after the cause of action arose.
Sec. 1205. Savings clause
- Nothing in this chapter abrogates, diminishes, or weakens
the provisions of, nor provides any defense or element of
mitigation in a criminal prosecution or civil action
under, any Federal or State law that prevents the
violation of the privacy of an individual in connection
with the individual's use of the Internet.'.
- (b) CONFORMING AMENDMENT- The table of chapters for title
17, United States Code, is amended by adding after the
item relating to chapter 11 the following:
1201'.
SEC. 104. EVALUATION OF IMPACT OF COPYRIGHT LAW AND
AMENDMENTS ON ELECTRONIC COMMERCE AND TECHNOLOGICAL DEVELOPMENT.
- (a) EVALUATION BY THE REGISTER OF COPYRIGHTS AND THE
ASSISTANT SECRETARY FOR COMMUNICATIONS AND INFORMATION-
The Register of Copyrights and the Assistant Secretary
for Communications and Information of the Department of
Commerce shall jointly evaluate--
- (1) the effects of the amendments made by this
title and the development of electronic commerce
and associated technology on the operation of
sections 109 and 117 of title 17, United States
Code; and
- (2) the relationship between existing and
emergent technology and the operation of sections
109 and 117 of title 17, United States Code.
- (b) REPORT TO CONGRESS- The Register of Copyrights and
the Assistant Secretary for Communications and
Information of the Department of Commerce shall, not
later than 24 months after the date of the enactment of
this Act, submit to the Congress a joint report on the
evaluation conducted under subsection (a), including any
legislative recommendations the Register and the
Assistant Secretary may have.
SEC. 105. EFFECTIVE DATE.
- (a) IN GENERAL- Except as otherwise provided in this
title, this title and the amendments made by this title
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 102(a)(4) of this Act.
- (B) The amendment made by section 102(a)(6) of
this Act.
- (C) Subparagraph (C) of section 104A(h)(1) of
title 17, United States Code, as amended by
section 102(c)(1) of this Act.
- (D) Subparagraph (C) of section 104A(h)(3) of
title 17, United States Code, as amended by
section 102(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 102(a)(4) of this Act.
- (B) The amendment made by section 102(a)(7) of
this Act.
- (C) The amendment made by section 102(b)(2) of
this Act.
- (D) Subparagraph (D) of section 104A(h)(1) of
title 17, United States Code, as amended by
section 102(c)(1) of this Act.
- (E) Subparagraph (D) of section 104A(h)(3) of
title 17, United States Code, as amended by
section 102(c)(2) of this Act.
- (F) The amendments made by section 102(c)(3) of
this Act.
TITLE II--ONLINE COPYRIGHT INFRINGEMENT
LIABILITY LIMITATION
SEC. 201. SHORT TITLE.
- This title may be cited as the Online Copyright
Infringement Liability Limitation Act'.
SEC. 202. LIMITATIONS ON LIABILITY FOR COPYRIGHT INFRINGEMENT.
- (a) IN GENERAL- Chapter 5 of title 17, United States
Code, is amended by adding after section 511 the
following new section:
Sec. 512. Limitations on liability relating to material
online
- (a) TRANSITORY DIGITAL NETWORK COMMUNICATIONS- A service
provider shall not be liable for monetary relief, or,
except as provided in subsection (j), for injunctive or
other equitable relief, for infringement of copyright by
reason of the provider's transmitting, routing, or
providing connections for, material through a system or
network controlled or operated by or for the service
provider, or by reason of the intermediate and transient
storage of that material in the course of such
transmitting, routing, or providing connections, if--
- (1) the transmission of the material was
initiated by or at the direction of a person
other than the service provider;
- (2) the transmission, routing, provision of
connections, or storage is carried out through an
automatic technical process without selection of
the material by the service provider;
- (3) the service provider does not select the
recipients of the material except as an automatic
response to the request of another person;
- (4) no copy of the material made by the service
provider in the course of such intermediate or
transient storage is maintained on the system or
network in a manner ordinarily accessible to
anyone other than anticipated recipients, and no
such copy is maintained on the system or network
in a manner ordinarily accessible to such
anticipated recipients for a longer period than
is reasonably necessary for the transmission,
routing, or provision of connections; and
- (5) the material is transmitted through the
system or network without modification of its
content.
- (1) LIMITATION ON LIABILITY- A service provider
shall not be liable for monetary relief, or,
except as provided in subsection (j), for
injunctive or other equitable relief, for
infringement of copyright by reason of the
intermediate and temporary storage of material on
a system or network controlled or operated by or
for the service provider in a case in which--
- (A) the material is made available online
by a person other than the service
provider;
- (B) the material is transmitted from the
person described in subparagraph (A)
through the system or network to a person
other than the person described in
subparagraph (A) at the direction of that
other person; and
- (C) the storage is carried out through an
automatic technical process for the
purpose of making the material available
to users of the system or network who,
after the material is transmitted as
described in subparagraph (B), request
access to the material from the person
described in subparagraph (A),
- if the conditions set forth in paragraph (2) are
met.
- (2) CONDITIONS- The conditions referred to in
paragraph (1) are that--
- (A) the material described in paragraph (1)
is transmitted to the subsequent users
described in paragraph (1)(C) without
modification to its content from the
manner in which the material was
transmitted from the person described in
paragraph (1)(A);
- (B) the service provider described in
paragraph (1) complies with rules
concerning the refreshing, reloading, or
other updating of the material when
specified by the person making the
material available online in accordance
with a generally accepted industry
standard data communications protocol for
the system or network through which that
person makes the material available,
except that this subparagraph applies
only if those rules are not used by the
person described in paragraph (1)(A) to
prevent or unreasonably impair the
intermediate storage to which this
subsection applies;
- (C) the service provider does not
interfere with the ability of technology
associated with the material to return to
the person described in paragraph (1)(A)
the information that would have been
available to that person if the material
had been obtained by the subsequent users
described in paragraph (1)(C) directly
from that person, except that this
subparagraph applies only if that
technology--
- (i) does not significantly
interfere with the performance of
the provider's system or network
or with the intermediate storage
of the material;
- (ii) is consistent with generally
accepted industry standard
communications protocols; and
- (iii) does not extract
information from the provider's
system or network other than the
information that would have been
available to the person described
in paragraph (1)(A) if the
subsequent users had gained
access to the material directly
from that person;
- (D) if the person described in paragraph
(1)(A) has in effect a condition that a
person must meet prior to having access
to the material, such as a condition
based on payment of a fee or provision of
a password or other information, the
service provider permits access to the
stored material in significant part only
to users of its system or network that
have met those conditions and only in
accordance with those conditions; and
- (E) if the person described in paragraph
(1)(A) makes that material available
online without the authorization of the
copyright owner of the material, the
service provider responds expeditiously
to remove, or disable access to, the
material that is claimed to be infringing
upon notification of claimed infringement
as described in subsection (c)(3), except
that this subparagraph applies only if--
- (i) the material has previously
been removed from the originating
site or access to it has been
disabled, or a court has ordered
that the material be removed from
the originating site or that
access to the material on the
originating site be disabled; and
- (ii) the party giving the
notification includes in the
notification a statement
confirming that the material has
been removed from the originating
site or access to it has been
disabled or that a court has
ordered that the material be
removed from the originating site
or that access to the material on
the originating site be disabled.
- (c) INFORMATION RESIDING ON SYSTEMS OR NETWORKS
AT DIRECTION OF USERS-
- (1) IN GENERAL- A service provider shall not be
liable for monetary relief, or, except as
provided in subsection (j), for injunctive or
other equitable relief, for infringement of
copyright by reason of the storage at the
direction of a user of material that resides on a
system or network controlled or operated by or
for the service provider, if the service provider--
- (A)(i) does not have actual knowledge
that the material or an activity using
the material on the system or network is
infringing;
- (ii) in the absence of such actual
knowledge, is not aware of facts or
circumstances from which infringing
activity is apparent; or
- (iii) upon obtaining such knowledge or
awareness, acts expeditiously to remove,
or disable access to, the material;
- (B) does not receive a financial benefit
directly attributable to the infringing
activity, in a case in which the service
provider has the right and ability to
control such activity; and
- (C) upon notification of claimed
infringement as described in paragraph (3),
responds expeditiously to remove, or
disable access to, the material that is
claimed to be infringing or to be the
subject of infringing activity.
- (2) DESIGNATED AGENT- The limitations on
liability established in this subsection apply to
a service provider only if the service provider
has designated an agent to receive notifications
of claimed infringement described in paragraph (3),
by making available through its service,
including on its website in a location accessible
to the public, and by providing to the Copyright
Office, substantially the following information:
- (A) the name, address, phone number, and
electronic mail address of the agent.
- (B) other contact information which the
Register of Copyrights may deem
appropriate.
- The Register of Copyrights shall maintain a
current directory of agents available to the
public for inspection, including through the
Internet, in both electronic and hard copy
formats, and may require payment of a fee by
service providers to cover the costs of
maintaining the directory.
- (3) ELEMENTS OF NOTIFICATION-
- (A) To be effective under this
subsection, a notification of claimed
infringement must be a written
communication provided to the designated
agent of a service provider that includes
substantially the following:
- (i) A physical or electronic
signature of a person authorized
to act on behalf of the owner of
an exclusive right that is
allegedly infringed.
- (ii) Identification of the
copyrighted work claimed to have
been infringed, or, if multiple
copyrighted works at a single
online site are covered by a
single notification, a
representative list of such works
at that site.
- (iii) Identification of the
material that is claimed to be
infringing or to be the subject
of infringing activity and that
is to be removed or access to
which is to be disabled, and
information reasonably sufficient
to permit the service provider to
locate the material.
- (iv) Information reasonably
sufficient to permit the service
provider to contact the
complaining party, such as an
address, telephone number, and,
if available, an electronic mail
address at which the complaining
party may be contacted.
- (v) A statement that the
complaining party has a good
faith belief that use of the
material in the manner complained
of is not authorized by the
copyright owner, its agent, or
the law.
- (vi) A statement that the
information in the notification
is accurate, and under penalty of
perjury, that the complaining
party is authorized to act on
behalf of the owner of an
exclusive right that is allegedly
infringed.
- (B)(i) Subject to clause (ii), a
notification from a copyright owner or
from a person authorized to act on behalf
of the copyright owner that fails to
comply substantially with the provisions
of subparagraph (A) shall not be
considered under paragraph (1)(A) in
determining whether a service provider
has actual knowledge or is aware of facts
or circumstances from which infringing
activity is apparent.
- (ii) In a case in which the notification
that is provided to the service
provider's designated agent fails to
comply substantially with all the
provisions of subparagraph (A) but
substantially complies with clauses (ii),
(iii), and (iv) of subparagraph (A),
clause (i) of this subparagraph applies
only if the service provider promptly
attempts to contact the person making the
notification or takes other reasonable
steps to assist in the receipt of
notification that substantially complies
with all the provisions of subparagraph (A).
- (d) INFORMATION LOCATION TOOLS- A service provider shall
not be liable for monetary relief, or, except as provided
in subsection (j), for injunctive or other equitable
relief, for infringement of copyright by reason of the
provider referring or linking users to an online location
containing infringing material or infringing activity, by
using information location tools, including a directory,
index, reference, pointer, or hypertext link, if the
service provider--
- (1)(A) does not have actual knowledge that the
material or activity is infringing;
- (B) in the absence of such actual knowledge, is
not aware of facts or circumstances from which
infringing activity is apparent; or
- (C) upon obtaining such knowledge or awareness,
acts expeditiously to remove, or disable access
to, the material;
- (2) does not receive a financial benefit directly
attributable to the infringing activity, in a
case in which the service provider has the right
and ability to control such activity; and
- (3) upon notification of claimed infringement as
described in subsection (c)(3), responds
expeditiously to remove, or disable access to,
the material that is claimed to be infringing or
to be the subject of infringing activity, except
that, for purposes of this paragraph, the
information described in subsection (c)(3)(A)(iii)
shall be identification of the reference or link,
to material or activity claimed to be infringing,
that is to be removed or access to which is to be
disabled, and information reasonably sufficient
to permit the service provider to locate that
reference or link.
- (e) LIMITATION ON LIABILITY OF NONPROFIT EDUCATIONAL
INSTITUTIONS- (1) When a public or other nonprofit
institution of higher education is a service provider,
and when a faculty member or graduate student who is an
employee of such institution is performing a teaching or
research function, for the purposes of subsections (a)
and (b) such faculty member or graduate student shall be
considered to be a person other than the institution, and
for the purposes of subsections (c) and (d) such faculty
member's or graduate student's knowledge or awareness of
his or her infringing activities shall not be attributed
to the institution, if--
- (A) such faculty member's or graduate student's
infringing activities do not involve the
provision of online access to instructional
materials that are or were required or
recommended, within the preceding 3-year period,
for a course taught at the institution by such
faculty member or graduate student;
- (B) the institution has not, within the preceding
3-year period, received more than two
notifications described in subsection (c)(3) of
claimed infringement by such faculty member or
graduate student, and such notifications of
claimed infringement were not actionable under
subsection (f); and
- (C) the institution provides to all users of its
system or network informational materials that
accurately describe, and promote compliance with,
the laws of the United States relating to
copyright.
- (2) INJUNCTIONS- For the purposes of this subsection, the
limitations on injunctive relief contained in subsections
(j)(2) and (j)(3), but not those in (j)(1), shall apply.
- (f) MISREPRESENTATIONS- Any person who knowingly
materially misrepresents under this section--
- (1) that material or activity is infringing, or
- (2) that material or activity was removed or
disabled by mistake or misidentification,
- shall be liable for any damages, including costs and
attorneys' fees, incurred by the alleged infringer, by
any copyright owner or copyright owner's authorized
licensee, or by a service provider, who is injured by
such misrepresentation, as the result of the service
provider relying upon such misrepresentation in removing
or disabling access to the material or activity claimed
to be infringing, or in replacing the removed material or
ceasing to disable access to it.
- (g) REPLACEMENT OF REMOVED OR DISABLED MATERIAL AND
LIMITATION ON OTHER LIABILITY-
- (1) NO LIABILITY FOR TAKING DOWN GENERALLY-
Subject to paragraph (2), a service provider
shall not be liable to any person for any claim
based on the service provider's good faith
disabling of access to, or removal of, material
or activity claimed to be infringing or based on
facts or circumstances from which infringing
activity is apparent, regardless of whether the
material or activity is ultimately determined to
be infringing.
- (2) EXCEPTION- Paragraph (1) shall not apply with
respect to material residing at the direction of
a subscriber of the service provider on a system
or network controlled or operated by or for the
service provider that is removed, or to which
access is disabled by the service provider,
pursuant to a notice provided under subsection (c)(1)(C),
unless the service provider--
- (A) takes reasonable steps promptly to
notify the subscriber that it has removed
or disabled access to the material;
- (B) upon receipt of a counter
notification described in paragraph (3),
promptly provides the person who provided
the notification under subsection (c)(1)(C)
with a copy of the counter notification,
and informs that person that it will
replace the removed material or cease
disabling access to it in 10 business
days; and
- (C) replaces the removed material and
ceases disabling access to it not less
than 10, nor more than 14, business days
following receipt of the counter notice,
unless its designated agent first
receives notice from the person who
submitted the notification under
subsection (c)(1)(C) that such person has
filed an action seeking a court order to
restrain the subscriber from engaging in
infringing activity relating to the
material on the service provider's system
or network.
- (3) CONTENTS OF COUNTER NOTIFICATION- To be
effective under this subsection, a counter
notification must be a written communication
provided to the service provider's designated
agent that includes substantially the following:
- (A) A physical or electronic signature of
the subscriber.
- (B) Identification of the material that
has been removed or to which access has
been disabled and the location at which
the material appeared before it was
removed or access to it was disabled.
- (C) A statement under penalty of perjury
that the subscriber has a good faith
belief that the material was removed or
disabled as a result of mistake or
misidentification of the material to be
removed or disabled.
- (D) The subscriber's name, address, and
telephone number, and a statement that
the subscriber consents to the
jurisdiction of Federal District Court
for the judicial district in which the
address is located, or if the
subscriber's address is outside of the
United States, for any judicial district
in which the service provider may be
found, and that the subscriber will
accept service of process from the person
who provided notification under
subsection (c)(1)(C) or an agent of such
person.
- (4) LIMITATION ON OTHER LIABILITY- A service
provider's compliance with paragraph (2) shall
not subject the service provider to liability for
copyright infringement with respect to the
material identified in the notice provided under
subsection (c)(1)(C).
- (h) SUBPOENA TO IDENTIFY INFRINGER-
- (1) REQUEST- A copyright owner or a person
authorized to act on the owner's behalf may
request the clerk of any United States district
court to issue a subpoena to a service provider
for identification of an alleged infringer in
accordance with this subsection.
- (2) CONTENTS OF REQUEST- The request may be made
by filing with the clerk--
- (A) a copy of a notification described in
subsection (c)(3)(A);
- (B) a proposed subpoena; and
- (C) a sworn declaration to the effect
that the purpose for which the subpoena
is sought is to obtain the identity of an
alleged infringer and that such
information will only be used for the
purpose of protecting rights under this
title.
- (3) CONTENTS OF SUBPOENA- The subpoena shall
authorize and order the service provider
receiving the notification and the subpoena to
expeditiously disclose to the copyright owner or
person authorized by the copyright owner
information sufficient to identify the alleged
infringer of the material described in the
notification to the extent such information is
available to the service provider.
- (4) BASIS FOR GRANTING SUBPOENA- If the
notification filed satisfies the provisions of
subsection (c)(3)(A), the proposed subpoena is in
proper form, and the accompanying declaration is
properly executed, the clerk shall expeditiously
issue and sign the proposed subpoena and return
it to the requester for delivery to the service
provider.
- (5) ACTIONS OF SERVICE PROVIDER RECEIVING
SUBPOENA- Upon receipt of the issued subpoena,
either accompanying or subsequent to the receipt
of a notification described in subsection (c)(3)(A),
the service provider shall expeditiously disclose
to the copyright owner or person authorized by
the copyright owner the information required by
the subpoena, notwithstanding any other provision
of law and regardless of whether the service
provider responds to the notification.
- (6) RULES APPLICABLE TO SUBPOENA- Unless
otherwise provided by this section or by
applicable rules of the court, the procedure for
issuance and delivery of the subpoena, and the
remedies for noncompliance with the subpoena,
shall be governed to the greatest extent
practicable by those provisions of the Federal
Rules of Civil Procedure governing the issuance,
service, and enforcement of a subpoena duces
tecum.
- (i) CONDITIONS FOR ELIGIBILITY-
- (1) ACCOMMODATION OF TECHNOLOGY- The limitations
on liability established by this section shall
apply to a service provider only if the service
provider--
- (A) has adopted and reasonably
implemented, and informs subscribers and
account holders of the service provider's
system or network of, a policy that
provides for the termination in
appropriate circumstances of subscribers
and account holders of the service
provider's system or network who are
repeat infringers; and
- (B) accommodates and does not interfere
with standard technical measures.
- (2) DEFINITION- As used in this subsection, the
term standard technical measures' means technical
measures that are used by copyright owners to
identify or protect copyrighted works and--
- (A) have been developed pursuant to a
broad consensus of copyright owners and
service providers in an open, fair,
voluntary, multi-industry standards
process;
- (B) are available to any person on
reasonable and nondiscriminatory terms;
and
- (C) do not impose substantial costs on
service providers or substantial burdens
on their systems or networks.
- (j) INJUNCTIONS- The following rules shall apply in the
case of any application for an injunction under section
502 against a service provider that is not subject to
monetary remedies under this section:
- (1) SCOPE OF RELIEF- (A) With respect to conduct
other than that which qualifies for the
limitation on remedies set forth in subsection (a),
the court may grant injunctive relief with
respect to a service provider only in one or more
of the following forms:
- (i) An order restraining the service
provider from providing access to
infringing material or activity residing
at a particular online site on the
provider's system or network.
- (ii) An order restraining the service
provider from providing access to a
subscriber or account holder of the
service provider's system or network who
is engaging in infringing activity and is
identified in the order, by terminating
the accounts of the subscriber or account
holder that are specified in the order.
- (iii) Such other injunctive relief as the
court may consider necessary to prevent
or restrain infringement of copyrighted
material specified in the order of the
court at a particular online location, if
such relief is the least burdensome to
the service provider among the forms of
relief comparably effective for that
purpose.
- (B) If the service provider qualifies for the
limitation on remedies described in subsection (a),
the court may only grant injunctive relief in one
or both of the following forms:
- (i) An order restraining the service
provider from providing access to a
subscriber or account holder of the
service provider's system or network who
is using the provider's service to engage
in infringing activity and is identified
in the order, by terminating the accounts
of the subscriber or account holder that
are specified in the order.
- (ii) An order restraining the service
provider from providing access, by taking
reasonable steps specified in the order
to block access, to a specific,
identified, online location outside the
United States.
- (2) CONSIDERATIONS- The court, in considering the
relevant criteria for injunctive relief under
applicable law, shall consider--
- (A) whether such an injunction, either
alone or in combination with other such
injunctions issued against the same
service provider under this subsection,
would significantly burden either the
provider or the operation of the
provider's system or network;
- (B) the magnitude of the harm likely to
be suffered by the copyright owner in the
digital network environment if steps are
not taken to prevent or restrain the
infringement;
- (C) whether implementation of such an
injunction would be technically feasible
and effective, and would not interfere
with access to noninfringing material at
other online locations; and
- (D) whether other less burdensome and
comparably effective means of preventing
or restraining access to the infringing
material are available.
- (3) NOTICE AND EX PARTE ORDERS- Injunctive relief
under this subsection shall be available only
after notice to the service provider and an
opportunity for the service provider to appear
are provided, except for orders ensuring the
preservation of evidence or other orders having
no material adverse effect on the operation of
the service provider's communications network.
- (1) SERVICE PROVIDER- (A) As used in subsection (a),
the term service provider' means an entity
offering the transmission, routing, or providing
of connections for digital online communications,
between or among points specified by a user, of
material of the user's choosing, without
modification to the content of the material as
sent or received.
- (B) As used in this section, other than
subsection (a), the term service provider' means
a provider of online services or network access,
or the operator of facilities therefor, and
includes an entity described in subparagraph (A).
- (2) MONETARY RELIEF- As used in this section, the
term monetary relief' means damages, costs,
attorneys' fees, and any other form of monetary
payment.
- (l) OTHER DEFENSES NOT AFFECTED- The failure of a service
provider's conduct to qualify for limitation of liability
under this section shall not bear adversely upon the
consideration of a defense by the service provider that
the service provider's conduct is not infringing under
this title or any other defense.
- (m) PROTECTION OF PRIVACY- Nothing in this section shall
be construed to condition the applicability of
subsections (a) through (d) on--
- (1) a service provider monitoring its service or
affirmatively seeking facts indicating infringing
activity, except to the extent consistent with a
standard technical measure complying with the
provisions of subsection (i); or
- (2) a service provider gaining access to,
removing, or disabling access to material in
cases in which such conduct is prohibited by law.
- (n) CONSTRUCTION- Subsections (a), (b), (c), and (d)
describe separate and distinct functions for purposes of
applying this section. Whether a service provider
qualifies for the limitation on liability in any one of
those subsections shall be based solely on the criteria
in that subsection, and shall not affect a determination
of whether that service provider qualifies for the
limitations on liability under any other such subsection.'.
- (b) CONFORMING AMENDMENT- The table of sections for
chapter 5 of title 17, United States Code, is amended by
adding at the end the following:
- 512. Limitations on liability relating to
material online.'.
SEC. 203. EFFECTIVE DATE.
- This title and the amendments made by this title shall
take effect on the date of the enactment of this Act.
TITLE III--COMPUTER MAINTENANCE OR REPAIR
COPYRIGHT EXEMPTION
SEC. 301. SHORT TITLE.
- This title may be cited as the Computer Maintenance
Competition Assurance Act'.
SEC. 302. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER PROGRAMS.
- Section 117 of title 17, United States Code, is amended--
- (1) by striking Notwithstanding' and inserting the
following:
- (a) MAKING OF ADDITIONAL COPY OR ADAPTATION BY OWNER OF
COPY- Notwithstanding';
- (2) by striking Any exact' and inserting the following:
- (b) LEASE, SALE, OR OTHER TRANSFER OF ADDITIONAL COPY OR
ADAPTATION- Any exact'; and
- (3) by adding at the end the following:
- (c) MACHINE MAINTENANCE OR REPAIR- Notwithstanding the
provisions of section 106, it is not an infringement for
the owner or lessee of a machine to make or authorize the
making of a copy of a computer program if such copy is
made solely by virtue of the activation of a machine that
lawfully contains an authorized copy of the computer
program, for purposes only of maintenance or repair of
that machine, if--
- (1) such new copy is used in no other manner and
is destroyed immediately after the maintenance or
repair is completed; and
- (2) with respect to any computer program or part
thereof that is not necessary for that machine to
be activated, such program or part thereof is not
accessed or used other than to make such new copy
by virtue of the activation of the machine.
- (d) DEFINITIONS- For purposes of this section--
- (1) the maintenance' of a machine is the
servicing of the machine in order to make it work
in accordance with its original specifications
and any changes to those specifications
authorized for that machine; and
- (2) the repair' of a machine is the restoring of
the machine to the state of working in accordance
with its original specifications and any changes
to those specifications authorized for that
machine.'.
TITLE IV--MISCELLANEOUS PROVISIONS
SEC. 401. PROVISIONS RELATING TO THE COMMISSIONER OF PATENTS
AND TRADEMARKS AND THE REGISTER OF COPYRIGHTS
- (a) COMPENSATION- (1) Section 3(d) of title 35, United
States Code, is amended by striking prescribed by law for
Assistant Secretaries of Commerce' and inserting in
effect for level III of the Executive Schedule under
section 5314 of title 5, United States Code'.
- (2) Section 701(e) of title 17, United States Code, is
amended--
- (A) by striking IV' and inserting III'; and
- (B) by striking 5315' and inserting 5314'.
- (3) Section 5314 of title 5, United States Code, is
amended by adding at the end the following:
- Assistant Secretary of Commerce and Commissioner
of Patents and Trademarks.
- Register of Copyrights.'.
- (b) CLARIFICATION OF AUTHORITY OF THE COPYRIGHT OFFICE-
Section 701 of title 17, United States Code, is amended--
- (1) by redesignating subsections (b) through (e)
as subsections (c) through (f), respectively; and
- (2) by inserting after subsection (a) the
following:
- (b) In addition to the functions and duties set out
elsewhere in this chapter, the Register of Copyrights
shall perform the following functions:
- (1) Advise Congress on national and international
issues relating to copyright, other matters
arising under this title, and related matters.
- (2) Provide 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) Participate 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 United States delegations as authorized by the
appropriate Executive branch authority.
- (4) Conduct 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.
- (5) Perform such other functions as Congress may
direct, or as may be appropriate in furtherance
of the functions and duties specifically set
forth in this title.'.
SEC. 402. EPHEMERAL RECORDINGS.
- Section 112(a) of title 17, United States Code, is
amended--
- (1) by redesignating paragraphs (1), (2), and (3)
as subparagraphs (A), (B), and (C), respectively;
- (2) by inserting (1)' after (a)';
- (3) by inserting after under a license' the
following: , including a statutory license under
section 114(f),';
- (4) by inserting after 114(a),' the following: or
for a transmitting organization that is a
broadcast radio or television station licensed as
such by the Federal Communications Commission and
that makes a broadcast transmission of a
performance of a sound recording in a digital
format on a nonsubscription basis,'; and
- (5) by adding at the end the following:
- (2) In a case in which a transmitting organization
entitled to make a copy or phonorecord under paragraph (1)
in connection with the transmission to the public of a
performance or display of a work is prevented from making
such copy or phonorecord by reason of the application by
the copyright owner of technical measures that prevent
the reproduction of the work, the copyright owner shall
make available to the transmitting organization the
necessary means for permitting the making of such copy or
phonorecord as permitted under that paragraph, if it is
technologically feasible and economically reasonable for
the copyright owner to do so. If the copyright owner
fails to do so in a timely manner in light of the
transmitting organization's reasonable business
requirements, the transmitting organization shall not be
liable for a violation of section 1201(a)(1) of this
title for engaging in such activities as are necessary to
make such copies or phonorecords as permitted under
paragraph (1) of this subsection.'.
SEC. 403. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION.
- (a) RECOMMENDATIONS BY REGISTER OF COPYRIGHTS- Not later
than 6 months after the date of the enactment of this
Act, the Register of Copyrights, after consultation with
representatives of copyright owners, nonprofit
educational institutions, and nonprofit libraries and
archives, shall submit to the Congress recommendations on
how to promote distance education through digital
technologies, including interactive digital networks,
while maintaining an appropriate balance between the
rights of copyright owners and the needs of users of
copyrighted works. Such recommendations shall include any
legislation the Register of Copyrights considers
appropriate to achieve the objective described in the
preceding sentence.
- (b) FACTORS- In formulating recommendations under
subsection (a), the Register of Copyrights shall consider--
- (1) the need for an exemption from exclusive
rights of copyright owners for distance education
through digital networks;
- (2) the categories of works to be included under
any distance education exemption;
- (3) the extent of appropriate quantitative
limitations on the portions of works that may be
used under any distance education exemption;
- (4) the parties who should be entitled to the
benefits of any distance education exemption;
- (5) the parties who should be designated as
eligible recipients of distance education
materials under any distance education exemption;
- (6) whether and what types of technological
measures can or should be employed to safeguard
against unauthorized access to, and use or
retention of, copyrighted materials as a
condition of eligibility for any distance
education exemption, including, in light of
developing technological capabilities, the
exemption set out in section 110(2) of title 17,
United States Code;
- (7) the extent to which the availability of
licenses for the use of copyrighted works in
distance education through interactive digital
networks should be considered in assessing
eligibility for any distance education exemption;
and
- (8) such other issues relating to distance
education through interactive digital networks
that the Register considers appropriate.
SEC. 404. EXEMPTION FOR LIBRARIES AND ARCHIVES.
- Section 108 of title 17, United States Code, is amended--
- (A) by striking Notwithstanding' and
inserting Except as otherwise provided in
this title and notwithstanding';
- (B) by inserting after no more than one
copy or phonorecord of a work' the
following: , except as provided in
subsections (b) and (c)'; and
- (C) in paragraph (3) by inserting after
copyright' the following: that appears on
the copy or phonorecord that is
reproduced under the provisions of this
section, or includes a legend stating
that the work may be protected by
copyright if no such notice can be found
on the copy or phonorecord that is
reproduced under the provisions of this
section';
- (A) by striking a copy or phonorecord'
and inserting three copies or
phonorecords';
- (B) by striking in facsimile form'; and
- (C) by striking if the copy or
phonorecord reproduced is currently in
the collections of the library or
archives.' and inserting if--
- (1) the copy or phonorecord reproduced is
currently in the collections of the library or
archives; and
- (2) any such copy or phonorecord that is
reproduced in digital format is not otherwise
distributed in that format and is not made
available to the public in that format outside
the premises of the library or archives.'; and
- (A) by striking a copy or phonorecord'
and inserting three copies or
phonorecords';
- (B) by striking in facsimile form';
- (C) by inserting or if the existing
format in which the work is stored has
become obsolete,' after stolen,';
- (D) by striking if the library or
archives has, after a reasonable effort,
determined that an unused replacement
cannot be obtained at a fair price.' and
inserting if--
- (1) the library or archives has, after a
reasonable effort, determined that an unused
replacement cannot be obtained at a fair price;
and
- (2) any such copy or phonorecord that is
reproduced in digital format is not made
available to the public in that format outside
the premises of the library or archives in lawful
possession of such copy.'; and
- (E) by adding at the end the following:
- For purposes of this subsection, a format shall be
considered obsolete if the machine or device necessary to
render perceptible a work stored in that format is no
longer manufactured or is no longer reasonably available
in the commercial marketplace.'.
SEC. 405. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS;
EPHEMERAL RECORDINGS.
- (a) SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS-
Section 114 of title 17, United States Code, is amended
as follows:
- (1) Subsection (d) is amended--
- (A) in paragraph (1) by striking
subparagraph (A) and inserting the
following:
- (A) a nonsubscription broadcast
transmission;'; and
- (B) by amending paragraph (2) to read as
follows:
- (2) STATUTORY LICENSING OF CERTAIN TRANSMISSIONS-
The performance of a sound recording publicly by
means of a subscription digital audio
transmission not exempt under paragraph (1), an
eligible nonsubscription transmission, or a
transmission not exempt under paragraph (1) that
is made by a preexisting satellite digital audio
radio service shall be subject to statutory
licensing, in accordance with subsection (f) if--
- (A)(i) the transmission is not part of an
interactive service;
- (ii) except in the case of a transmission
to a business establishment, the
transmitting entity does not
automatically and intentionally cause any
device receiving the transmission to
switch from one program channel to
another; and
- (iii) except as provided in section 1002(e),
the transmission of the sound recording
is accompanied, if technically feasible,
by the information encoded in that sound
recording, if any, by or under the
authority of the copyright owner of that
sound recording, that identifies the
title of the sound recording, the
featured recording artist who performs on
the sound recording, and related
information, including information
concerning the underlying musical work
and its writer;
- (B) in the case of a subscription
transmission not exempt under paragraph (1)
that is made by a preexisting
subscription service in the same
transmission medium used by such service
on July 31, 1998, or in the case of a
transmission not exempt under paragraph (1)
that is made by a preexisting satellite
digital audio radio service--
- (i) the transmission does not
exceed the sound recording
performance complement; and
- (ii) the transmitting entity does
not cause to be published by
means of an advance program
schedule or prior announcement
the titles of the specific sound
recordings or phonorecords
embodying such sound recordings
to be transmitted; and
- (C) in the case of an eligible
nonsubscription transmission or a
subscription transmission not exempt
under paragraph (1) that is made by a new
subscription service or by a preexisting
subscription service other than in the
same transmission medium used by such
service on July 31, 1998--
- (i) the transmission does not
exceed the sound recording
performance complement, except
that this requirement shall not
apply in the case of a
retransmission of a broadcast
transmission if the
retransmission is made by a
transmitting entity that does not
have the right or ability to
control the programming of the
broadcast station making the
broadcast transmission, unless--
- (I) the broadcast station
makes broadcast
transmissions--
(aa) in digital format that regularly exceed the sound
recording performance complement; or
(bb) in analog format, a substantial portion of which, on a
weekly basis, exceed the sound recording performance complement;
and
- (II) the sound recording
copyright owner or its
representative has
notified the transmitting
entity in writing that
broadcast transmissions
of the copyright owner's
sound recordings exceed
the sound recording
performance complement as
provided in this clause;
- (ii) the transmitting entity does
not cause to be published, or
induce or facilitate the
publication, by means of an
advance program schedule or prior
announcement, the titles of the
specific sound recordings to be
transmitted, the phonorecords
embodying such sound recordings,
or, other than for illustrative
purposes, the names of the
featured recording artists,
except that this clause does not
disqualify a transmitting entity
that makes a prior announcement
that a particular artist will be
featured within an unspecified
future time period, and in the
case of a retransmission of a
broadcast transmission by a
transmitting entity that does not
have the right or ability to
control the programming of the
broadcast transmission, the
requirement of this clause shall
not apply to a prior oral
announcement by the broadcast
station, or to an advance program
schedule published, induced, or
facilitated by the broadcast
station, if the transmitting
entity does not have actual
knowledge and has not received
written notice from the copyright
owner or its representative that
the broadcast station publishes
or induces or facilitates the
publication of such advance
program schedule, or if such
advance program schedule is a
schedule of classical music
programming published by the
broadcast station in the same
manner as published by that
broadcast station on or before
September 30, 1998;
- (I) is not part of an
archived program of less
than 5 hours duration;
- (II) is not part of an
archived program of 5
hours or greater in
duration that is made
available for a period
exceeding 2 weeks;
- (III) is not part of a
continuous program which
is of less than 3 hours
duration; or
- (IV) is not part of an
identifiable program in
which performances of
sound recordings are
rendered in a
predetermined order,
other than an archived or
continuous program, that
is transmitted at--
(aa) more than 3 times in any 2-week period that have been
publicly announced in advance, in the case of a program of less
than 1 hour in duration, or
(bb) more than 4 times in any 2-week period that have been
publicly announced in advance, in the case of a program of 1 hour
or more in duration,
- except that the
requirement of this
subclause shall not apply
in the case of a
retransmission of a
broadcast transmission by
a transmitting entity
that does not have the
right or ability to
control the programming
of the broadcast
transmission, unless the
transmitting entity is
given notice in writing
by the copyright owner of
the sound recording that
the broadcast station
makes broadcast
transmissions that
regularly violate such
requirement;
- (iv) the transmitting entity does
not knowingly perform the sound
recording, as part of a service
that offers transmissions of
visual images contemporaneously
with transmissions of sound
recordings, in a manner that is
likely to cause confusion, to
cause mistake, or to deceive, as
to the affiliation, connection,
or association of the copyright
owner or featured recording
artist with the transmitting
entity or a particular product or
service advertised by the
transmitting entity, or as to the
origin, sponsorship, or approval
by the copyright owner or
featured recording artist of the
activities of the transmitting
entity other than the performance
of the sound recording itself;
- (v) the transmitting entity
cooperates to prevent, to the
extent feasible without imposing
substantial costs or burdens, a
transmission recipient or any
other person or entity from
automatically scanning the
transmitting entity's
transmissions alone or together
with transmissions by other
transmitting entities in order to
select a particular sound
recording to be transmitted to
the transmission recipient,
except that the requirement of
this clause shall not apply to a
satellite digital audio service
that is in operation, or that is
licensed by the Federal
Communications Commission, on or
before July 31, 1998;
- (vi) the transmitting entity
takes no affirmative steps to
cause or induce the making of a
phonorecord by the transmission
recipient, and if the technology
used by the transmitting entity
enables the transmitting entity
to limit the making by the
transmission recipient of
phonorecords of the transmission
directly in a digital format, the
transmitting entity sets such
technology to limit such making
of phonorecords to the extent
permitted by such technology;
- (vii) phonorecords of the sound
recording have been distributed
to the public under the authority
of the copyright owner or the
copyright owner authorizes the
transmitting entity to transmit
the sound recording, and the
transmitting entity makes the
transmission from a phonorecord
lawfully made under the authority
of the copyright owner, except
that the requirement of this
clause shall not apply to a
retransmission of a broadcast
transmission by a transmitting
entity that does not have the
right or ability to control the
programming of the broadcast
transmission, unless the
transmitting entity is given
notice in writing by the
copyright owner of the sound
recording that the broadcast
station makes broadcast
transmissions that regularly
violate such requirement;
- (viii) the transmitting entity
accommodates and does not
interfere with the transmission
of technical measures that are
widely used by sound recording
copyright owners to identify or
protect copyrighted works, and
that are technically feasible of
being transmitted by the
transmitting entity without
imposing substantial costs on the
transmitting entity or resulting
in perceptible aural or visual
degradation of the digital
signal, except that the
requirement of this clause shall
not apply to a satellite digital
audio service that is in
operation, or that is licensed
under the authority of the
Federal Communications
Commission, on or before July 31,
1998, to the extent that such
service has designed, developed,
or made commitments to procure
equipment or technology that is
not compatible with such
technical measures before such
technical measures are widely
adopted by sound recording
copyright owners; and
- (ix) the transmitting entity
identifies in textual data the
sound recording during, but not
before, the time it is performed,
including the title of the sound
recording, the title of the
phonorecord embodying such sound
recording, if any, and the
featured recording artist, in a
manner to permit it to be
displayed to the transmission
recipient by the device or
technology intended for receiving
the service provided by the
transmitting entity, except that
the obligation in this clause
shall not take effect until 1
year after the date of the
enactment of the Digital
Millennium Copyright Act and
shall not apply in the case of a
retransmission of a broadcast
transmission by a transmitting
entity that does not have the
right or ability to control the
programming of the broadcast
transmission, or in the case in
which devices or technology
intended for receiving the
service provided by the
transmitting entity that have the
capability to display such
textual data are not common in
the marketplace.'.
- (2) Subsection (f) is amended--
- (A) in the subsection heading by striking
NONEXEMPT SUBSCRIPTION' and inserting
CERTAIN NONEXEMPT';
- (i) in the first sentence--
- (I) by striking (1) No'
and inserting (1)(A) No';
- (II) by striking the
activities' and inserting
subscription
transmissions by
preexisting subscription
services and
transmissions by
preexisting satellite
digital audio radio
services'; and
- (III) by striking 2000'
and inserting 2001'; and
- (ii) by amending the third
sentence to read as follows: Any
copyright owners of sound
recordings, preexisting
subscription services, or
preexisting satellite digital
audio radio services may submit
to the Librarian of Congress
licenses covering such
subscription transmissions with
respect to such sound recordings.';
and
- (C) by striking paragraphs (2), (3), (4),
and (5) and inserting the following:
- (B) In the absence of license agreements
negotiated under subparagraph (A), during the 60-day
period commencing 6 months after publication of
the notice specified in subparagraph (A), and
upon the filing of a petition in accordance with
section 803(a)(1), the Librarian of Congress
shall, pursuant to chapter 8, convene a copyright
arbitration royalty panel to determine and
publish in the Federal Register a schedule of
rates and terms which, subject to paragraph (3),
shall be binding on all copyright owners of sound
recordings and entities performing sound
recordings affected by this paragraph. In
establishing rates and terms for preexisting
subscription services and preexisting satellite
digital audio radio services, in addition to the
objectives set forth in section 801(b)(1), the
copyright arbitration royalty panel may consider
the rates and terms for comparable types of
subscription digital audio transmission services
and comparable circumstances under voluntary
license agreements negotiated as provided in
subparagraph (A).
- (C)(i) Publication of a notice of the initiation
of voluntary negotiation proceedings as specified
in subparagraph (A) shall be repeated, in
accordance with regulations that the Librarian of
Congress shall prescribe--
- (I) no later than 30 days after a
petition is filed by any copyright owners
of sound recordings, any preexisting
subscription services, or any preexisting
satellite digital audio radio services
indicating that a new type of
subscription digital audio transmission
service on which sound recordings are
performed is or is about to become
operational; and
- (II) in the first week of January 2001,
and at 5-year intervals thereafter.
- (ii) The procedures specified in subparagraph (B)
shall be repeated, in accordance with regulations
that the Librarian of Congress shall prescribe,
upon filing of a petition in accordance with
section 803(a)(1) during a 60-day period
commencing--
- (I) 6 months after publication of a
notice of the initiation of voluntary
negotiation proceedings under
subparagraph (A) pursuant to a petition
under clause (i)(I) of this subparagraph;
or
- (II) on July 1, 2001, and at 5-year
intervals thereafter.
- (iii) The procedures specified in subparagraph (B)
shall be concluded in accordance with section 802.
- (2)(A) No later than 30 days after the date of
the enactment of the Digital Millennium Copyright
Act, the Librarian of Congress shall cause notice
to be published in the Federal Register of the
initiation of voluntary negotiation proceedings
for the purpose of determining reasonable terms
and rates of royalty payments for public
performances of sound recordings by means of
eligible nonsubscription transmissions and
transmissions by new subscription services
specified by subsection (d)(2) during the period
beginning on the date of the enactment of such
Act and ending on December 31, 2000, or such
other date as the parties may agree. Such rates
and terms shall distinguish among the different
types of eligible nonsubscription transmission
services and new subscription services then in
operation and shall include a minimum fee for
each such type of service. Any copyright owners
of sound recordings or any entities performing
sound recordings affected by this paragraph may
submit to the Librarian of Congress licenses
covering such eligible nonsubscription
transmissions and new subscription services with
respect to such sound recordings. The parties to
each negotiation proceeding shall bear their own
costs.
- (B) In the absence of license agreements
negotiated under subparagraph (A), during the 60-day
period commencing 6 months after publication of
the notice specified in subparagraph (A), and
upon the filing of a petition in accordance with
section 803(a)(1), the Librarian of Congress
shall, pursuant to chapter 8, convene a copyright
arbitration royalty panel to determine and
publish in the Federal Register a schedule of
rates and terms which, subject to paragraph (3),
shall be binding on all copyright owners of sound
recordings and entities performing sound
recordings affected by this paragraph during the
period beginning on the date of the enactment of
the Digital Millennium Copyright Act and ending
on December 31, 2000, or such other date as the
parties may agree. Such rates and terms shall
distinguish among the different types of eligible
nonsubscription transmission services then in
operation and shall include a minimum fee for
each such type of service, such differences to be
based on criteria including, but not limited to,
the quantity and nature of the use of sound
recordings and the degree to which use of the
service may substitute for or may promote the
purchase of phonorecords by consumers. In
establishing rates and terms for transmissions by
eligible nonsubscription services and new
subscription services, the copyright arbitration
royalty panel shall establish rates and terms
that most clearly represent the rates and terms
that would have been negotiated in the
marketplace between a willing buyer and a willing
seller. In determining such rates and terms, the
copyright arbitration royalty panel shall base
its decision on economic, competitive and
programming information presented by the parties,
including--
- (i) whether use of the service may
substitute for or may promote the sales
of phonorecords or otherwise may
interfere with or may enhance the sound
recording copyright owner's other streams
of revenue from its sound recordings; and
- (ii) the relative roles of the copyright
owner and the transmitting entity in the
copyrighted work and the service made
available to the public with respect to
relative creative contribution,
technological contribution, capital
investment, cost, and risk.
- In establishing such rates and terms, the
copyright arbitration royalty panel may consider
the rates and terms for comparable types of
digital audio transmission services and
comparable circumstances under voluntary license
agreements negotiated under subparagraph (A).
- (C)(i) Publication of a notice of the initiation
of voluntary negotiation proceedings as specified
in subparagraph (A) shall be repeated in
accordance with regulations that the Librarian of
Congress shall prescribe--
- (I) no later than 30 days after a
petition is filed by any copyright owners
of sound recordings or any eligible
nonsubscription service or new
subscription service indicating that a
new type of eligible nonsubscription
service or new subscription service on
which sound recordings are performed is
or is about to become operational; and
- (II) in the first week of January 2000,
and at 2-year intervals thereafter,
except to the extent that different years
for the repeating of such proceedings may
be determined in accordance with
subparagraph (A).
- (ii) The procedures specified in subparagraph (B)
shall be repeated, in accordance with regulations
that the Librarian of Congress shall prescribe,
upon filing of a petition in accordance with
section 803(a)(1) during a 60-day period
commencing--
- (I) 6 months after publication of a
notice of the initiation of voluntary
negotiation proceedings under
subparagraph (A) pursuant to a petition
under clause (i)(I); or
- (II) on July 1, 2000, and at 2-year
intervals thereafter, except to the
extent that different years for the
repeating of such proceedings may be
determined in accordance with
subparagraph (A).
- (iii) The procedures specified in subparagraph (B)
shall be concluded in accordance with section 802.
- (3) License agreements voluntarily negotiated at
any time between 1 or more copyright owners of
sound recordings and 1 or more entities
performing sound recordings shall be given effect
in lieu of any determination by a copyright
arbitration royalty panel or decision by the
Librarian of Congress.
- (4)(A) The Librarian of Congress shall also
establish requirements by which copyright owners
may receive reasonable notice of the use of their
sound recordings under this section, and under
which records of such use shall be kept and made
available by entities performing sound recordings.
- (B) Any person who wishes to perform a sound
recording publicly by means of a transmission
eligible for statutory licensing under this
subsection may do so without infringing the
exclusive right of the copyright owner of the
sound recording--
- (i) by complying with such notice
requirements as the Librarian of Congress
shall prescribe by regulation and by
paying royalty fees in accordance with
this subsection; or
- (ii) if such royalty fees have not been
set, by agreeing to pay such royalty fees
as shall be determined in accordance with
this subsection.
- (C) Any royalty payments in arrears shall be made
on or before the twentieth day of the month next
succeeding the month in which the royalty fees
are set.'.
- (3) Subsection (g) is amended--
- (A) in the subsection heading by striking
SUB-SCRIPTION';
- (B) in paragraph (1) in the matter
preceding subparagraph (A), by striking
subscription transmission licensed' and
inserting transmission licensed under a
statutory license';
- (C) in subparagraphs (A) and (B) by
striking subscription'; and
- (D) in paragraph (2) by striking
subscription'.
- (4) Subsection (j) is amended--
- (A) by striking paragraphs (4) and (9)
and redesignating paragraphs (2), (3), (5),
(6), (7), and (8) as paragraphs (3), (5),
(9), (12), (13), and (14), respectively;
- (B) by inserting after paragraph (1) the
following:
- (2) An archived program' is a predetermined
program that is available repeatedly on the
demand of the transmission recipient and that is
performed in the same order from the beginning,
except that an archived program shall not include
a recorded event or broadcast transmission that
makes no more than an incidental use of sound
recordings, as long as such recorded event or
broadcast transmission does not contain an entire
sound recording or feature a particular sound
recording.';
- (C) by inserting after paragraph (3), as
so redesignated, the following:
- (4) A continuous program' is a predetermined
program that is continuously performed in the
same order and that is accessed at a point in the
program that is beyond the control of the
transmission recipient.';
- (D) by inserting after paragraph (5), as
so redesignated, the following:
- (6) An eligible nonsubscription transmission' is
a noninteractive nonsubscription digital audio
transmission not exempt under subsection (d)(1)
that is made as part of a service that provides
audio programming consisting, in whole or in
part, of performances of sound recordings,
including retransmissions of broadcast
transmissions, if the primary purpose of the
service is to provide to the public such audio or
other entertainment programming, and the primary
purpose of the service is not to sell, advertise,
or promote particular products or services other
than sound recordings, live concerts, or other
music-related events.
- (7) An interactive service' is one that enables a
member of the public to receive a transmission of
a program specially created for the recipient, or
on request, a transmission of a particular sound
recording, whether or not as part of a program,
which is selected by or on behalf of the
recipient. The ability of individuals to request
that particular sound recordings be performed for
reception by the public at large, or in the case
of a subscription service, by all subscribers of
the service, does not make a service interactive,
if the programming on each channel of the service
does not substantially consist of sound
recordings that are performed within 1 hour of
the request or at a time designated by either the
transmitting entity or the individual making such
request. If an entity offers both interactive and
noninteractive services (either concurrently or
at different times), the noninteractive component
shall not be treated as part of an interactive
service.
- (8) A new subscription service' is a service that
performs sound recordings by means of
noninteractive subscription digital audio
transmissions and that is not a preexisting
subscription service or a preexisting satellite
digital audio radio service.';
- (E) by inserting after paragraph (9), as
so redesignated, the following:
- (10) A preexisting satellite digital audio radio
service' is a subscription satellite digital
audio radio service provided pursuant to a
satellite digital audio radio service license
issued by the Federal Communications Commission
on or before July 31, 1998, and any renewal of
such license to the extent of the scope of the
original license, and may include a limited
number of sample channels representative of the
subscription service that are made available on a
nonsubscription basis in order to promote the
subscription service.
- (11) A preexisting subscription service' is a
service that performs sound recordings by means
of noninteractive audio-only subscription digital
audio transmissions, which was in existence and
was making such transmissions to the public for a
fee on or before July 31, 1998, and may include a
limited number of sample channels representative
of the subscription service that are made
available on a nonsubscription basis in order to
promote the subscription service.'; and
- (F) by adding at the end the following:
- (15) A transmission' is either an initial
transmission or a retransmission.'.
- (5) The amendment made by paragraph (2)(B)(i)(III)
of this subsection shall be deemed to have been
enacted as part of the Digital Performance Right
in Sound Recordings Act of 1995, and the
publication of notice of proceedings under
section 114(f)(1) of title 17, United States
Code, as in effect upon the effective date of
that Act, for the determination of royalty
payments shall be deemed to have been made for
the period beginning on the effective date of
that Act and ending on December 1, 2001.
- (6) The amendments made by this subsection do not
annul, limit, or otherwise impair the rights that
are preserved by section 114 of title 17, United
States Code, including the rights preserved by
subsections (c), (d)(4), and (i) of such section.
- (b) EPHEMERAL RECORDINGS- Section 112 of title 17, United
States Code, is amended--
- (1) by redesignating subsection (e) as subsection
(f); and
- (2) by inserting after subsection (d) the
following:
- (e) STATUTORY LICENSE- (1) A transmitting organization
entitled to transmit to the public a performance of a
sound recording under the limitation on exclusive rights
specified by section 114(d)(1)(C)(iv) or under a
statutory license in accordance with section 114(f) is
entitled to a statutory license, under the conditions
specified by this subsection, to make no more than 1
phonorecord of the sound recording (unless the terms and
conditions of the statutory license allow for more), if
the following conditions are satisfied:
- (A) The phonorecord is retained and used solely
by the transmitting organization that made it,
and no further phonorecords are reproduced from
it.
- (B) The phonorecord is used solely for the
transmitting organization's own transmissions
originating in the United States under a
statutory license in accordance with section 114(f)
or the limitation on exclusive rights specified
by section 114(d)(1)(C)(iv).
- (C) Unless preserved exclusively for purposes of
archival preservation, the phonorecord is
destroyed within 6 months from the date the sound
recording was first transmitted to the public
using the phonorecord.
- (D) Phonorecords of the sound recording have been
distributed to the public under the authority of
the copyright owner or the copyright owner
authorizes the transmitting entity to transmit
the sound recording, and the transmitting entity
makes the phonorecord under this subsection from
a phonorecord lawfully made and acquired under
the authority of the copyright owner.
- (3) Notwithstanding any provision of the antitrust laws,
any copyright owners of sound recordings and any
transmitting organizations entitled to a statutory
license under this subsection may negotiate and agree
upon royalty rates and license terms and conditions for
making phonorecords of such sound recordings under this
section and the proportionate division of fees paid among
copyright owners, and may designate common agents to
negotiate, agree to, pay, or receive such royalty
payments.
- (4) No later than 30 days after the date of the enactment
of the Digital Millennium Copyright Act, the Librarian of
Congress shall cause notice to be published in the
Federal Register of the initiation of voluntary
negotiation proceedings for the purpose of determining
reasonable terms and rates of royalty payments for the
activities specified by paragraph (2) of this subsection
during the period beginning on the date of the enactment
of such Act and ending on December 31, 2000, or such
other date as the parties may agree. Such rates shall
include a minimum fee for each type of service offered by
transmitting organizations. Any copyright owners of sound
recordings or any transmitting organizations entitled to
a statutory license under this subsection may submit to
the Librarian of Congress licenses covering such
activities with respect to such sound recordings. The
parties to each negotiation proceeding shall bear their
own costs.
- (5) In the absence of license agreements negotiated under
paragraph (3), during the 60-day period commencing 6
months after publication of the notice specified in
paragraph (4), and upon the filing of a petition in
accordance with section 803(a)(1), the Librarian of
Congress shall, pursuant to chapter 8, convene a
copyright arbitration royalty panel to determine and
publish in the Federal Register a schedule of reasonable
rates and terms which, subject to paragraph (6), shall be
binding on all copyright owners of sound recordings and
transmitting organizations entitled to a statutory
license under this subsection during the period beginning
on the date of the enactment of the Digital Millennium
Copyright Act and ending on December 31, 2000, or such
other date as the parties may agree. Such rates shall
include a minimum fee for each type of service offered by
transmitting organizations. The copyright arbitration
royalty panel shall establish rates that most clearly
represent the fees that would have been negotiated in the
marketplace between a willing buyer and a willing seller.
In determining such rates and terms, the copyright
arbitration royalty panel shall base its decision on
economic, competitive, and programming information
presented by the parties, including--
- (A) whether use of the service may substitute for
or may promote the sales of phonorecords or
otherwise interferes with or enhances the
copyright owner's traditional streams of revenue;
and
- (B) the relative roles of the copyright owner and
the transmitting organization in the copyrighted
work and the service made available to the public
with respect to relative creative contribution,
technological contribution, capital investment,
cost, and risk.
- In establishing such rates and terms, the copyright
arbitration royalty panel may consider the rates and
terms under voluntary license agreements negotiated as
provided in paragraphs (3) and (4). The Librarian of
Congress shall also establish requirements by which
copyright owners may receive reasonable notice of the use
of their sound recordings under this section, and under
which records of such use shall be kept and made
available by transmitting organizations entitled to
obtain a statutory license under this subsection.
- (6) License agreements voluntarily negotiated at any time
between 1 or more copyright owners of sound recordings
and 1 or more transmitting organizations entitled to
obtain a statutory license under this subsection shall be
given effect in lieu of any determination by a copyright
arbitration royalty panel or decision by the Librarian of
Congress.
- (7) Publication of a notice of the initiation of
voluntary negotiation proceedings as specified in
paragraph (4) shall be repeated, in accordance with
regulations that the Librarian of Congress shall
prescribe, in the first week of January 2000, and at 2-year
intervals thereafter, except to the extent that different
years for the repeating of such proceedings may be
determined in accordance with paragraph (4). The
procedures specified in paragraph (5) shall be repeated,
in accordance with regulations that the Librarian of
Congress shall prescribe, upon filing of a petition in
accordance with section 803(a)(1), during a 60-day period
commencing on July 1, 2000, and at 2-year intervals
thereafter, except to the extent that different years for
the repeating of such proceedings may be determined in
accordance with paragraph (4). The procedures specified
in paragraph (5) shall be concluded in accordance with
section 802.
- (8)(A) Any person who wishes to make a phonorecord of a
sound recording under a statutory license in accordance
with this subsection may do so without infringing the
exclusive right of the copyright owner of the sound
recording under section 106(1)--
- (i) by complying with such notice requirements as
the Librarian of Congress shall prescribe by
regulation and by paying royalty fees in
accordance with this subsection; or
- (ii) if such royalty fees have not been set, by
agreeing to pay such royalty fees as shall be
determined in accordance with this subsection.
- (B) Any royalty payments in arrears shall be made on or
before the 20th day of the month next succeeding the
month in which the royalty fees are set.
- (9) If a transmitting organization entitled to make a
phonorecord under this subsection is prevented from
making such phonorecord by reason of the application by
the copyright owner of technical measures that prevent
the reproduction of the sound recording, the copyright
owner shall make available to the transmitting
organization the necessary means for permitting the
making of such phonorecord as permitted under this
subsection, if it is technologically feasible and
economically reasonable for the copyright owner to do so.
If the copyright owner fails to do so in a timely manner
in light of the transmitting organization's reasonable
business requirements, the transmitting organization
shall not be liable for a violation of section 1201(a)(1)
of this title for engaging in such activities as are
necessary to make such phonorecords as permitted under
this subsection.
- (10) Nothing in this subsection annuls, limits, impairs,
or otherwise affects in any way the existence or value of
any of the exclusive rights of the copyright owners in a
sound recording, except as otherwise provided in this
subsection, or in a musical work, including the exclusive
rights to reproduce and distribute a sound recording or
musical work, including by means of a digital phonorecord
delivery, under sections 106(1), 106(3), and 115, and the
right to perform publicly a sound recording or musical
work, including by means of a digital audio transmission,
under sections 106(4) and 106(6).'.
- (c) SCOPE OF SECTION 112(a) OF TITLE 17 NOT AFFECTED-
Nothing in this section or the amendments made by this
section shall affect the scope of section 112(a) of title
17, United States Code, or the entitlement of any person
to an exemption thereunder.
- (d) PROCEDURAL AMENDMENTS TO CHAPTER 8- Section 802 of
title 17, United States Code, is amended--
- (A) in the first sentence by striking 60'
and inserting 90'; and
- (B) in the third sentence by striking
that 60-day period' and inserting an
additional 30-day period'; and
- (2) in subsection (g) by inserting after the
second sentence the following: When this title
provides that 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 or terms that were previously in effect,
even if the Librarian's decision is rendered on a
later date.'.
- (e) CONFORMING AMENDMENTS- (1) Section 801(b)(1) of title
17, United States Code, is amended in the second sentence
by striking sections 114, 115, and 116' and inserting
sections 114(f)(1)(B), 115, and 116'.
- (2) Section 802(c) of title 17, United States Code, is
amended by striking section 111, 114, 116, or 119, any
person entitled to a compulsory license' and inserting
section 111, 112, 114, 116, or 119, any transmitting
organization entitled to a statutory license under
section 112(f), any person entitled to a statutory
license'.
- (3) Section 802(g) of title 17, United States Code, is
amended by striking sections 111, 114' and inserting
sections 111, 112, 114'.
- (4) Section 802(h)(2) of title 17, United States Code, is
amended by striking section 111, 114' and inserting
section 111, 112, 114'.
- (5) Section 803(a)(1) of title 17, United States Code, is
amended by striking sections 114, 115' and inserting
sections 112, 114, 115'.
- (6) Section 803(a)(5) of title 17, United States Code, is
amended--
- (A) by striking section 114' and inserting
section 112 or 114'; and
- (B) by striking that section' and inserting those
sections'.
SEC. 406. ASSUMPTION OF CONTRACTUAL OBLIGATIONS RELATED TO
TRANSFERS OF RIGHTS IN MOTION PICTURES.
- (a) IN GENERAL- Part VI of title 28, United States Code,
is amended by adding at the end the following new chapter:
CHAPTER 180--ASSUMPTION OF CERTAIN CONTRACTUAL
OBLIGATIONS
- Sec. 4001. Assumption of contractual obligations
related to transfers of rights in motion pictures.
Sec. 4001. Assumption of contractual obligations related to
transfers of rights in motion pictures
- (a) ASSUMPTION OF OBLIGATIONS- (1) In the case of a
transfer of copyright ownership under United States law
in a motion picture (as the terms transfer of copyright
ownership' and motion picture' are defined in section 101
of title 17) that is produced subject to 1 or more
collective bargaining agreements negotiated under the
laws of the United States, if the transfer is executed on
or after the effective date of this chapter 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 those
obligations and remedies are set forth in the applicable
collective bargaining agreement, if--
- (A) the transferee knows or has reason to know at
the time of the transfer that such collective
bargaining agreement was or will be applicable to
the motion picture; or
- (B) in the event of a court order confirming an
arbitration award against the transferor under
the collective bargaining agreement, the
transferor does not have the financial ability to
satisfy the award within 90 days after the order
is issued.
- (2) For purposes of paragraph (1)(A), knows or has reason
to know' means any of the following:
- (A) Actual knowledge that the collective
bargaining agreement was or will be applicable to
the motion picture.
- (B)(i) Constructive knowledge that the collective
bargaining agreement was or will be applicable to
the motion picture, arising from recordation of a
document pertaining to copyright in the motion
picture under section 205 of title 17 or from
publication, at a site available to the public on-line
that is operated by the relevant union, of
information that identifies the motion picture as
subject to a collective bargaining agreement with
that union, if the site permits commercially
reasonable verification of the date on which the
information was available for access.
- (ii) Clause (i) applies only if the transfer
referred to in subsection (a)(1) occurs--
- (I) after the motion picture is
completed, or
- (II) before the motion picture is
completed and--
- (aa) within 18 months before the
filing of an application for
copyright registration for the
motion picture under section 408
of title 17, or
- (bb) if no such application is
filed, within 18 months before
the first publication of the
motion picture in the United
States.
- (C) Awareness of other facts and circumstances
pertaining to a particular transfer from which it
is apparent that the collective bargaining
agreement was or will be applicable to the motion
picture.
- (b) SCOPE OF EXCLUSION OF TRANSFERS OF PUBLIC PERFORMANCE
RIGHTS- For purposes of this section, the exclusion under
subsection (a) 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. 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 affect any
obligations imposed on the transferee to the extent that
it is engaging in such functions.
- (c) EXCLUSION FOR GRANTS OF SECURITY INTERESTS-
Subsection (a) shall not apply to--
- (1) a transfer of copyright ownership consisting
solely of a mortgage, hypothecation, or other
security interest; or
- (2) a subsequent transfer of the copyright
ownership secured by the security interest
described in paragraph (1) by or under the
authority of the secured party, including a
transfer through the exercise of the secured
party's rights or remedies as a secured party, or
by a subsequent transferee.
- The exclusion under this subsection shall not affect any
rights or remedies under law or contract.
- (d) DEFERRAL PENDING RESOLUTION OF BONA FIDE DISPUTE- A
transferee on which obligations are imposed under
subsection (a) by virtue of paragraph (1) of that
subsection may elect to defer performance of such
obligations that are subject to a bona fide dispute
between a union and a prior transferor until that dispute
is resolved, except that such deferral shall not stay
accrual of any union claims due under an applicable
collective bargaining agreement.
- (e) SCOPE OF OBLIGATIONS DETERMINED BY PRIVATE AGREEMENT-
Nothing in this section shall expand or diminish the
rights, obligations, or remedies of any person under the
collective bargaining agreements or assumption agreements
referred to in this section.
- (f) FAILURE TO NOTIFY- If the transferor under subsection
(a) fails to notify the transferee under subsection (a)
of applicable collective bargaining obligations before
the execution of the transfer instrument, and subsection
(a) is made applicable to the transferee solely by virtue
of subsection (a)(1)(B), the transferor shall be liable
to the transferee for any damages suffered by the
transferee as a result of the failure to notify.
- (g) DETERMINATION OF DISPUTES AND CLAIMS- Any dispute
concerning the application of subsections (a) through (f)
shall be determined by an action in United States
district court, and the court in its discretion may allow
the recovery of full costs by or against any party and
may also award a reasonable attorney's fee to the
prevailing party as part of the costs.
- (h) STUDY- The Comptroller General, in consultation with
the Register of Copyrights, shall conduct a study of the
conditions in the motion picture industry that gave rise
to this section, and the impact of this section on the
motion picture industry. The Comptroller General shall
report the findings of the study to the Congress within 2
years after the effective date of this chapter.'.
- (b) CONFORMING AMENDMENT- The table of chapters for part
VI of title 28, United States Code, is amended by adding
at the end the following:
4001'.
SEC. 407. EFFECTIVE DATE.
- Except as otherwise provided in this title, this title
and the amendments made by this title shall take effect
on the date of the enactment of this Act.
TITLE V--PROTECTION OF CERTAIN ORIGINAL
DESIGNS
SEC. 501. SHORT TITLE.
- This Act may be referred to as the Vessel Hull Design
Protection Act'.
SEC. 502. PROTECTION OF CERTAIN ORIGINAL DESIGNS.
- Title 17, United States Code, is amended by adding at the
end the following new chapter:
CHAPTER 13--PROTECTION OF ORIGINAL DESIGNS
- 1302. Designs not subject to protection.
- 1303. Revisions, adaptations, and rearrangements.
- 1304. Commencement of protection.
- 1305. Term of protection.
- 1307. Effect of omission of notice.
- 1310. Application for registration.
- 1311. Benefit of earlier filing date in foreign
country.
- 1312. Oaths and acknowledgments.
- 1313. Examination of application and issue or
refusal of registration.
- 1314. Certification of registration.
- 1315. Publication of announcements and indexes.
- 1319. Correction of errors in certificates.
- 1320. Ownership and transfer.
- 1321. Remedy for infringement.
- 1323. Recovery for infringement.
- 1324. Power of court over registration.
- 1325. Liability for action on registration
fraudulently obtained.
- 1326. Penalty for false marking.
- 1327. Penalty for false representation.
- 1328. Enforcement by Treasury and Postal Service.
- 1329. Relation to design patent law.
- 1330. Common law and other rights unaffected.
- 1331. Administrator; Office of the Administrator.
- 1332. No retroactive effect.
Sec. 1301. Designs protected
- (1) IN GENERAL- The designer or other owner of an
original design of a useful article which makes
the article attractive or distinctive in
appearance to the purchasing or using public may
secure the protection provided by this chapter
upon complying with and subject to this chapter.
- (2) VESSEL HULLS- The design of a vessel hull,
including a plug or mold, is subject to
protection under this chapter, notwithstanding
section 1302(4).
- (b) DEFINITIONS- For the purpose of this chapter, the
following terms have the following meanings:
- (1) A design is original' if it is the result of
the designer's creative endeavor that provides a
distinguishable variation over prior work
pertaining to similar articles which is more than
merely trivial and has not been copied from
another source.
- (2) A useful article' is a vessel hull, including
a plug or mold, which in normal use has an
intrinsic utilitarian function that is not merely
to portray the appearance of the article or to
convey information. An article which normally is
part of a useful article shall be deemed to be a
useful article.
- (3) A vessel' is a craft, especially one larger
than a rowboat, designed to navigate on water,
but does not include any such craft that exceeds
200 feet in length.
- (4) A hull' is the frame or body of a vessel,
including the deck of a vessel, exclusive of
masts, sails, yards, and rigging.
- (5) A plug' means a device or model used to make
a mold for the purpose of exact duplication,
regardless of whether the device or model has an
intrinsic utilitarian function that is not only
to portray the appearance of the product or to
convey information.
- (6) A mold' means a matrix or form in which a
substance for material is used, regardless of
whether the matrix or form has an intrinsic
utilitarian function that is not only to portray
the appearance of the product or to convey
information.
Sec. 1302. Designs not subject to protection
- Protection under this chapter shall not be available for
a design that is--
- (2) staple or commonplace, such as a standard
geometric figure, a familiar symbol, an emblem,
or a motif, or another shape, pattern, or
configuration which has become standard, common,
prevalent, or ordinary;
- (3) different from a design excluded by paragraph
(2) only in insignificant details or in elements
which are variants commonly used in the relevant
trades;
- (4) dictated solely by a utilitarian function of
the article that embodies it; or
- (5) embodied in a useful article that was made
public by the designer or owner in the United
States or a foreign country more than 1 year
before the date of the application for
registration under this chapter.
Sec. 1303. Revisions, adaptations, and rearrangements
- Protection for a design under this chapter shall be
available notwithstanding the employment in the design of
subject matter excluded from protection under section
1302 if the design is a substantial revision, adaptation,
or rearrangement of such subject matter. Such protection
shall be independent of any subsisting protection in
subject matter employed in the design, and shall not be
construed as securing any right to subject matter
excluded from protection under this chapter or as
extending any subsisting protection under this chapter.
Sec. 1304. Commencement of protection
- The protection provided for a design under this chapter
shall commence upon the earlier of the date of
publication of the registration under section 1313(a) or
the date the design is first made public as defined by
section 1310(b).
Sec. 1305. Term of protection
- (a) IN GENERAL- Subject to subsection (b), the protection
provided under this chapter for a design shall continue
for a term of 10 years beginning on the date of the
commencement of protection under section 1304.
- (b) EXPIRATION- All terms of protection provided in this
section shall run to the end of the calendar year in
which they would otherwise expire.
- (c) TERMINATION OF RIGHTS- Upon expiration or termination
of protection in a particular design under this chapter,
all rights under this chapter in the design shall
terminate, regardless of the number of different articles
in which the design may have been used during the term of
its protection.
Sec. 1306. Design notice
- (a) CONTENTS OF DESIGN NOTICE- (1) Whenever any design
for which protection is sought under this chapter is made
public under section 1310(b), the owner of the design
shall, subject to the provisions of section 1307, mark it
or have it marked legibly with a design notice consisting
of--
- (A) the words Protected Design', the abbreviation
Prot'd Des.', or the letter D' with a circle, or
the symbol *D*';
- (B) the year of the date on which protection for
the design commenced; and
- (C) the name of the owner, an abbreviation by
which the name can be recognized, or a generally
accepted alternative designation of the owner.
- Any distinctive identification of the owner may be used
for purposes of subparagraph (C) if it has been recorded
by the Administrator before the design marked with such
identification is registered.
- (2) After registration, the registration number may be
used instead of the elements specified in subparagraphs (B)
and (C) of paragraph (1).
- (b) LOCATION OF NOTICE- The design notice shall be so
located and applied as to give reasonable notice of
design protection while the useful article embodying the
design is passing through its normal channels of commerce.
- (c) SUBSEQUENT REMOVAL OF NOTICE- When the owner of a
design has complied with the provisions of this section,
protection under this chapter shall not be affected by
the removal, destruction, or obliteration by others of
the design notice on an article.
Sec. 1307. Effect of omission of notice
- (a) ACTIONS WITH NOTICE- Except as provided in subsection
(b), the omission of the notice prescribed in section
1306 shall not cause loss of the protection under this
chapter or prevent recovery for infringement under this
chapter against any person who, after receiving written
notice of the design protection, begins an undertaking
leading to infringement under this chapter.
- (b) ACTIONS WITHOUT NOTICE- The omission of the notice
prescribed in section 1306 shall prevent any recovery
under section 1323 against a person who began an
undertaking leading to infringement under this chapter
before receiving written notice of the design protection.
No injunction shall be issued under this chapter with
respect to such undertaking unless the owner of the
design reimburses that person for any reasonable
expenditure or contractual obligation in connection with
such undertaking that was incurred before receiving
written notice of the design protection, as the court in
its discretion directs. The burden of providing written
notice of design protection shall be on the owner of the
design.
Sec. 1308. Exclusive rights
- The owner of a design protected under this chapter has
the exclusive right to--
- (1) make, have made, or import, for sale or for
use in trade, any useful article embodying that
design; and
- (2) sell or distribute for sale or for use in
trade any useful article embodying that design.
Sec. 1309. Infringement
- (a) ACTS OF INFRINGEMENT- Except as provided in
subsection (b), it shall be infringement of the exclusive
rights in a design protected under this chapter for any
person, without the consent of the owner of the design,
within the United States and during the term of such
protection, to--
- (1) make, have made, or import, for sale or for
use in trade, any infringing article as defined
in subsection (e); or
- (2) sell or distribute for sale or for use in
trade any such infringing article.
- (b) ACTS OF SELLERS AND DISTRIBUTORS- A seller or
distributor of an infringing article who did not make or
import the article shall be deemed to have infringed on a
design protected under this chapter only if that person--
- (1) induced or acted in collusion with a
manufacturer to make, or an importer to import
such article, except that merely purchasing or
giving an order to purchase such article in the
ordinary course of business shall not of itself
constitute such inducement or collusion; or
- (2) refused or failed, upon the request of the
owner of the design, to make a prompt and full
disclosure of that person's source of such
article, and that person orders or reorders such
article after receiving notice by registered or
certified mail of the protection subsisting in
the design.
- (c) ACTS WITHOUT KNOWLEDGE- It shall not be infringement
under this section to make, have made, import, sell, or
distribute, any article embodying a design which was
created without knowledge that a design was protected
under this chapter and was copied from such protected
design.
- (d) ACTS IN ORDINARY COURSE OF BUSINESS- A person who
incorporates into that person's product of manufacture an
infringing article acquired from others in the ordinary
course of business, or who, without knowledge of the
protected design embodied in an infringing article, makes
or processes the infringing article for the account of
another person in the ordinary course of business, shall
not be deemed to have infringed the rights in that design
under this chapter except under a condition contained in
paragraph (1) or (2) of subsection (b). Accepting an
order or reorder from the source of the infringing
article shall be deemed ordering or reordering within the
meaning of subsection (b)(2).
- (e) INFRINGING ARTICLE DEFINED- As used in this section,
an infringing article' is any article the design of which
has been copied from a design protected under this
chapter, without the consent of the owner of the
protected design. An infringing article is not an
illustration or picture of a protected design in an
advertisement, book, periodical, newspaper, photograph,
broadcast, motion picture, or similar medium. A design
shall not be deemed to have been copied from a protected
design if it is original and not substantially similar in
appearance to a protected design.
- (f) ESTABLISHING ORIGINALITY- The party to any action or
proceeding under this chapter who alleges rights under
this chapter in a design shall have the burden of
establishing the design's originality whenever the
opposing party introduces an earlier work which is
identical to such design, or so similar as to make prima
facie showing that such design was copied from such work.
- (g) REPRODUCTION FOR TEACHING OR ANALYSIS- It is not an
infringement of the exclusive rights of a design owner
for a person to reproduce the design in a useful article
or in any other form solely for the purpose of teaching,
analyzing, or evaluating the appearance, concepts, or
techniques embodied in the design, or the function of the
useful article embodying the design.
Sec. 1310. Application for registration
- (a) TIME LIMIT FOR APPLICATION FOR REGISTRATION-
Protection under this chapter shall be lost if
application for registration of the design is not made
within 2 years after the date on which the design is
first made public.
- (b) WHEN DESIGN IS MADE PUBLIC- A design is made public
when an existing useful article embodying the design is
anywhere publicly exhibited, publicly distributed, or
offered for sale or sold to the public by the owner of
the design or with the owner's consent.
- (c) APPLICATION BY OWNER OF DESIGN- Application for
registration may be made by the owner of the design.
- (d) CONTENTS OF APPLICATION- The application for
registration shall be made to the Administrator and shall
state--
- (1) the name and address of the designer or
designers of the design;
- (2) the name and address of the owner if
different from the designer;
- (3) the specific name of the useful article
embodying the design;
- (4) the date, if any, that the design was first
made public, if such date was earlier than the
date of the application;
- (5) affirmation that the design has been fixed in
a useful article; and
- (6) such other information as may be required by
the Administrator.
- The application for registration may include a
description setting forth the salient features of the
design, but the absence of such a description shall not
prevent registration under this chapter.
- (e) SWORN STATEMENT- The application for registration
shall be accompanied by a statement under oath by the
applicant or the applicant's duly authorized agent or
representative, setting forth, to the best of the
applicant's knowledge and belief--
- (1) that the design is original and was created
by the designer or designers named in the
application;
- (2) that the design has not previously been
registered on behalf of the applicant or the
applicant's predecessor in title; and
- (3) that the applicant is the person entitled to
protection and to registration under this chapter.
- If the design has been made public with the design notice
prescribed in section 1306, the statement shall also
describe the exact form and position of the design notice.
- (f) EFFECT OF ERRORS- (1) Error in any statement or
assertion as to the utility of the useful article named
in the application under this section, the design of
which is sought to be registered, shall not affect the
protection secured under this chapter.
- (2) Errors in omitting a joint designer or in naming an
alleged joint designer shall not affect the validity of
the registration, or the actual ownership or the
protection of the design, unless it is shown that the
error occurred with deceptive intent.
- (g) DESIGN MADE IN SCOPE OF EMPLOYMENT- In a case in
which the design was made within the regular scope of the
designer's employment and individual authorship of the
design is difficult or impossible to ascribe and the
application so states, the name and address of the
employer for whom the design was made may be stated
instead of that of the individual designer.
- (h) PICTORIAL REPRESENTATION OF DESIGN- The application
for registration shall be accompanied by two copies of a
drawing or other pictorial representation of the useful
article embodying the design, having one or more views,
adequate to show the design, in a form and style suitable
for reproduction, which shall be deemed a part of the
application.
- (i) DESIGN IN MORE THAN ONE USEFUL ARTICLE- If the
distinguishing elements of a design are in substantially
the same form in different useful articles, the design
shall be protected as to all such useful articles when
protected as to one of them, but not more than one
registration shall be required for the design.
- (j) APPLICATION FOR MORE THAN ONE DESIGN- More than one
design may be included in the same application under such
conditions as may be prescribed by the Administrator. For
each design included in an application the fee prescribed
for a single design shall be paid.
Sec. 1311. Benefit of earlier filing date in foreign country
- An application for registration of a design filed in the
United States by any person who has, or whose legal
representative or predecessor or successor in title has,
previously filed an application for registration of the
same design in a foreign country which extends to designs
of owners who are citizens of the United States, or to
applications filed under this chapter, similar protection
to that provided under this chapter shall have that same
effect as if filed in the United States on the date on
which the application was first filed in such foreign
country, if the application in the United States is filed
within 6 months after the earliest date on which any such
foreign application was filed.
Sec. 1312. Oaths and acknowledgments
- (a) IN GENERAL- Oaths and acknowledgments required by
this chapter--
- (A) before any person in the United
States authorized by law to administer
oaths; or
- (B) when made in a foreign country,
before any diplomatic or consular officer
of the United States authorized to
administer oaths, or before any official
authorized to administer oaths in the
foreign country concerned, whose
authority shall be proved by a
certificate of a diplomatic or consular
officer of the United States; and
- (2) shall be valid if they comply with the laws
of the State or country where made.
- (b) WRITTEN DECLARATION IN LIEU OF OATH- (1) The
Administrator may by rule prescribe that any document
which is to be filed under this chapter in the Office of
the Administrator and which is required by any law, rule,
or other regulation to be under oath, may be subscribed
to by a written declaration in such form as the
Administrator may prescribe, and such declaration shall
be in lieu of the oath otherwise required.
- (2) Whenever a written declaration under paragraph (1) is
used, the document containing the declaration shall state
that willful false statements are punishable by fine or
imprisonment, or both, pursuant to section 1001 of title
18, and may jeopardize the validity of the application or
document or a registration resulting therefrom.
Sec. 1313. Examination of application and issue or refusal of
registration
- (a) DETERMINATION OF REGISTRABILITY OF DESIGN;
REGISTRATION- Upon the filing of an application for
registration in proper form under section 1310, and upon
payment of the fee prescribed under section 1316, the
Administrator shall determine whether or not the
application relates to a design which on its face appears
to be subject to protection under this chapter, and, if
so, the Register shall register the design. Registration
under this subsection shall be announced by publication.
The date of registration shall be the date of publication.
- (b) REFUSAL TO REGISTER; RECONSIDERATION- If, in the
judgment of the Administrator, the application for
registration relates to a design which on its face is not
subject to protection under this chapter, the
Administrator shall send to the applicant a notice of
refusal to register and the grounds for the refusal.
Within 3 months after the date on which the notice of
refusal is sent, the applicant may, by written request,
seek reconsideration of the application. After
consideration of such a request, the Administrator shall
either register the design or send to the applicant a
notice of final refusal to register.
- (c) APPLICATION TO CANCEL REGISTRATION- Any person who
believes he or she is or will be damaged by a
registration under this chapter may, upon payment of the
prescribed fee, apply to the Administrator at any time to
cancel the registration on the ground that the design is
not subject to protection under this chapter, stating the
reasons for the request. Upon receipt of an application
for cancellation, the Administrator shall send to the
owner of the design, as shown in the records of the
Office of the Administrator, a notice of the application,
and the owner shall have a period of 3 months after the
date on which such notice is mailed in which to present
arguments to the Administrator for support of the
validity of the registration. The Administrator shall
also have the authority to establish, by regulation,
conditions under which the opposing parties may appear
and be heard in support of their arguments. If, after the
periods provided for the presentation of arguments have
expired, the Administrator determines that the applicant
for cancellation has established that the design is not
subject to protection under this chapter, the
Administrator shall order the registration stricken from
the record. Cancellation under this subsection shall be
announced by publication, and notice of the
Administrator's final determination with respect to any
application for cancellation shall be sent to the
applicant and to the owner of record.
Sec. 1314. Certification of registration
- Certificates of registration shall be issued in the name
of the United States under the seal of the Office of the
Administrator and shall be recorded in the official
records of the Office. The certificate shall state the
name of the useful article, the date of filing of the
application, the date of registration, and the date the
design was made public, if earlier than the date of
filing of the application, and shall contain a
reproduction of the drawing or other pictorial
representation of the design. If a description of the
salient features of the design appears in the
application, the description shall also appear in the
certificate. A certificate of registration shall be
admitted in any court as prima facie evidence of the
facts stated in the certificate.
Sec. 1315. Publication of announcements and indexes
- (a) PUBLICATIONS OF THE ADMINISTRATOR- The Administrator
shall publish lists and indexes of registered designs and
cancellations of designs and may also publish the
drawings or other pictorial representations of registered
designs for sale or other distribution.
- (b) FILE OF REPRESENTATIVES OF REGISTERED DESIGNS- The
Administrator shall establish and maintain a file of the
drawings or other pictorial representations of registered
designs. The file shall be available for use by the
public under such conditions as the Administrator may
prescribe.
Sec. 1316. Fees
- The Administrator shall by regulation set reasonable fees
for the filing of applications to register designs under
this chapter and for other services relating to the
administration of this chapter, taking into consideration
the cost of providing these services and the benefit of a
public record.
Sec. 1317. Regulations
- The Administrator may establish regulations for the
administration of this chapter.
Sec. 1318. Copies of records
- Upon payment of the prescribed fee, any person may obtain
a certified copy of any official record of the Office of
the Administrator that relates to this chapter. That copy
shall be admissible in evidence with the same effect as
the original.
Sec. 1319. Correction of errors in certificates
- The Administrator may, by a certificate of correction
under seal, correct any error in a registration incurred
through the fault of the Office, or, upon payment of the
required fee, any error of a clerical or typographical
nature occurring in good faith but not through the fault
of the Office. Such registration, together with the
certificate, shall thereafter have the same effect as if
it had been originally issued in such corrected form.
Sec. 1320. Ownership and transfer
- (a) PROPERTY RIGHT IN DESIGN- The property right in a
design subject to protection under this chapter shall
vest in the designer, the legal representatives of a
deceased designer or of one under legal incapacity, the
employer for whom the designer created the design in the
case of a design made within the regular scope of the
designer's employment, or a person to whom the rights of
the designer or of such employer have been transferred.
The person in whom the property right is vested shall be
considered the owner of the design.
- (b) TRANSFER OF PROPERTY RIGHT- The property right in a
registered design, or a design for which an application
for registration has been or may be filed, may be
assigned, granted, conveyed, or mortgaged by an
instrument in writing, signed by the owner, or may be
bequeathed by will.
- (c) OATH OR ACKNOWLEDGEMENT OF TRANSFER- An oath or
acknowledgment under section 1312 shall be prima facie
evidence of the execution of an assignment, grant,
conveyance, or mortgage under subsection (b).
- (d) RECORDATION OF TRANSFER- An assignment, grant,
conveyance, or mortgage under subsection (b) shall be
void as against any subsequent purchaser or mortgagee for
a valuable consideration, unless it is recorded in the
Office of the Administrator within 3 months after its
date of execution or before the date of such subsequent
purchase or mortgage.
Sec. 1321. Remedy for infringement
- (a) IN GENERAL- The owner of a design is entitled, after
issuance of a certificate of registration of the design
under this chapter, to institute an action for any
infringement of the design.
- (b) REVIEW OF REFUSAL TO REGISTER- (1) Subject to
paragraph (2), the owner of a design may seek judicial
review of a final refusal of the Administrator to
register the design under this chapter by bringing a
civil action, and may in the same action, if the court
adjudges the design subject to protection under this
chapter, enforce the rights in that design under this
chapter.
- (2) The owner of a design may seek judicial review under
this section if--
- (A) the owner has previously duly filed and
prosecuted to final refusal an application in
proper form for registration of the design;
- (B) the owner causes a copy of the complaint in
the action to be delivered to the Administrator
within 10 days after the commencement of the
action; and
- (C) the defendant has committed acts in respect
to the design which would constitute infringement
with respect to a design protected under this
chapter.
- (c) ADMINISTRATOR AS PARTY TO ACTION- The Administrator
may, at the Administrator's option, become a party to the
action with respect to the issue of registrability of the
design claim by entering an appearance within 60 days
after being served with the complaint, but the failure of
the Administrator to become a party shall not deprive the
court of jurisdiction to determine that issue.
- (d) USE OF ARBITRATION TO RESOLVE DISPUTE- The parties to
an infringement dispute under this chapter, within such
time as may be specified by the Administrator by
regulation, may determine the dispute, or any aspect of
the dispute, by arbitration. Arbitration shall be
governed by title 9. The parties shall give notice of any
arbitration award to the Administrator, and such award
shall, as between the parties to the arbitration, be
dispositive of the issues to which it relates. The
arbitration award shall be unenforceable until such
notice is given. Nothing in this subsection shall
preclude the Administrator from determining whether a
design is subject to registration in a cancellation
proceeding under section 1313(c).
Sec. 1322. Injunctions
- (a) IN GENERAL- A court having jurisdiction over actions
under this chapter may grant injunctions in accordance
with the principles of equity to prevent infringement of
a design under this chapter, including, in its
discretion, prompt relief by temporary restraining orders
and preliminary injunctions.
- (b) DAMAGES FOR INJUNCTIVE RELIEF WRONGFULLY OBTAINED- A
seller or distributor who suffers damage by reason of
injunctive relief wrongfully obtained under this section
has a cause of action against the applicant for such
injunctive relief and may recover such relief as may be
appropriate, including damages for lost profits, cost of
materials, loss of good will, and punitive damages in
instances where the injunctive relief was sought in bad
faith, and, unless the court finds extenuating
circumstances, reasonable attorney's fees.
Sec. 1323. Recovery for infringement
- (a) DAMAGES- Upon a finding for the claimant in an action
for infringement under this chapter, the court shall
award the claimant damages adequate to compensate for the
infringement. In addition, the court may increase the
damages to such amount, not exceeding $50,000 or $1 per
copy, whichever is greater, as the court determines to be
just. The damages awarded shall constitute compensation
and not a penalty. The court may receive expert testimony
as an aid to the determination of damages.
- (b) INFRINGER'S PROFITS- As an alternative to the
remedies provided in subsection (a), the court may award
the claimant the infringer's profits resulting from the
sale of the copies if the court finds that the
infringer's sales are reasonably related to the use of
the claimant's design. In such a case, the claimant shall
be required to prove only the amount of the infringer's
sales and the infringer shall be required to prove its
expenses against such sales.
- (c) STATUTE OF LIMITATIONS- No recovery under subsection
(a) or (b) shall be had for any infringement committed
more than 3 years before the date on which the complaint
is filed.
- (d) ATTORNEY'S FEES- In an action for infringement under
this chapter, the court may award reasonable attorney's
fees to the prevailing party.
- (e) DISPOSITION OF INFRINGING AND OTHER ARTICLES- The
court may order that all infringing articles, and any
plates, molds, patterns, models, or other means
specifically adapted for making the articles, be
delivered up for destruction or other disposition as the
court may direct.
Sec. 1324. Power of court over registration
- In any action involving the protection of a design under
this chapter, the court, when appropriate, may order
registration of a design under this chapter or the
cancellation of such a registration. Any such order shall
be certified by the court to the Administrator, who shall
make an appropriate entry upon the record.
Sec. 1325. Liability for action on registration fraudulently
obtained
- Any person who brings an action for infringement knowing
that registration of the design was obtained by a false
or fraudulent representation materially affecting the
rights under this chapter, shall be liable in the sum of
$10,000, or such part of that amount as the court may
determine. That amount shall be to compensate the
defendant and shall be charged against the plaintiff and
paid to the defendant, in addition to such costs and
attorney's fees of the defendant as may be assessed by
the court.
Sec. 1326. Penalty for false marking
- (a) IN GENERAL- Whoever, for the purpose of deceiving the
public, marks upon, applies to, or uses in advertising in
connection with an article made, used, distributed, or
sold, a design which is not protected under this chapter,
a design notice specified in section 1306, or any other
words or symbols importing that the design is protected
under this chapter, knowing that the design is not so
protected, shall pay a civil fine of not more than $500
for each such offense.
- (b) SUIT BY PRIVATE PERSONS- Any person may sue for the
penalty established by subsection (a), in which event one-half
of the penalty shall be awarded to the person suing and
the remainder shall be awarded to the United States.
Sec. 1327. Penalty for false representation
- Whoever knowingly makes a false representation materially
affecting the rights obtainable under this chapter for
the purpose of obtaining registration of a design under
this chapter shall pay a penalty of not less than $500
and not more than $1,000, and any rights or privileges
that individual may have in the design under this chapter
shall be forfeited.
Sec. 1328. Enforcement by Treasury and Postal Service
- (a) REGULATIONS- The Secretary of the Treasury and the
United States Postal Service shall separately or jointly
issue regulations for the enforcement of the rights set
forth in section 1308 with respect to importation. Such
regulations may require, as a condition for the exclusion
of articles from the United States, that the person
seeking exclusion take any one or more of the following
actions:
- (1) Obtain a court order enjoining, or an order
of the International Trade Commission under
section 337 of the Tariff Act of 1930 excluding,
importation of the articles.
- (2) Furnish proof that the design involved is
protected under this chapter and that the
importation of the articles would infringe the
rights in the design under this chapter.
- (3) Post a surety bond for any injury that may
result if the detention or exclusion of the
articles proves to be unjustified.
- (b) SEIZURE AND FORFEITURE- Articles imported in
violation of the rights set forth in section 1308 are
subject to seizure and forfeiture in the same manner as
property imported in violation of the customs laws. Any
such forfeited articles shall be destroyed as directed by
the Secretary of the Treasury or the court, as the case
may be, except that the articles may be returned to the
country of export whenever it is shown to the
satisfaction of the Secretary of the Treasury that the
importer had no reasonable grounds for believing that his
or her acts constituted a violation of the law.
Sec. 1329. Relation to design patent law
- The issuance of a design patent under title 35, United
States Code, for an original design for an article of
manufacture shall terminate any protection of the
original design under this chapter.
Sec. 1330. Common law and other rights unaffected
- Nothing in this chapter shall annul or limit--
- (1) common law or other rights or remedies, if
any, available to or held by any person with
respect to a design which has not been registered
under this chapter; or
- (2) any right under the trademark laws or any
right protected against unfair competition.
Sec. 1331. Administrator; Office of the Administrator
- In this chapter, the Administrator' is the Register of
Copyrights, and the Office of the Administrator' and the
Office' refer to the Copyright Office of the Library of
Congress.
Sec. 1332. No retroactive effect
- Protection under this chapter shall not be available for
any design that has been made public under section 1310(b)
before the effective date of this chapter.'.
SEC. 503. CONFORMING AMENDMENTS.
- (a) TABLE OF CHAPTERS- The table of chapters for title 17,
United States Code, is amended by adding at the end the
following:
1301'.
- (b) JURISDICTION OF DISTRICT COURTS OVER DESIGN ACTIONS-
(1) Section 1338(c) of title 28, United States Code, is
amended by inserting , and to exclusive rights in designs
under chapter 13 of title 17,' after title 17'.
- (2)(A) The section heading for section 1338 of title 28,
United States Code, is amended by inserting designs,'
after mask works,'.
- (B) The item relating to section 1338 in the table of
sections at the beginning of chapter 85 of title 28,
United States Code, is amended by inserting designs,'
after mask works,'.
- (c) PLACE FOR BRINGING DESIGN ACTIONS- (1) Section 1400(a)
of title 28, United States Code, is amended by inserting
or designs' after mask works'.
- (2) The section heading for section 1400 of title 28,
United States Code, is amended to read as follows:
Patents and copyrights, mask works, and designs'.
- (3) The item relating to section 1400 in the table of
sections at the beginning of chapter 87 of title 28,
United States Code, is amended to read as follows:
- 1400. Patents and copyrights, mask works, and
designs.'.
- (d) ACTIONS AGAINST THE UNITED STATES- Section 1498(e) of
title 28, United States Code, is amended by inserting ,
and to exclusive rights in designs under chapter 13 of
title 17,' after title 17'.
SEC. 504. JOINT STUDY OF THE EFFECT OF THIS TITLE.
- (a) IN GENERAL- Not later than 1 year after the date of
the enactment of this Act, and not later than 2 years
after such date of enactment, the Register of Copyrights
and the Commissioner of Patents and Trademarks shall
submit to the Committees on the Judiciary of the Senate
and the House of Representatives a joint report
evaluating the effect of the amendments made by this
title.
- (b) ELEMENTS FOR CONSIDERATION- In carrying out
subsection (a), the Register of Copyrights and the
Commissioner of Patents and Trademarks shall consider--
- (1) the extent to which the amendments made by
this title has been effective in suppressing
infringement of the design of vessel hulls;
- (2) the extent to which the registration provided
for in chapter 13 of title 17, United States
Code, as added by this title, has been utilized;
- (3) the extent to which the creation of new
designs of vessel hulls have been encouraged by
the amendments made by this title;
- (4) the effect, if any, of the amendments made by
this title on the price of vessels with hulls
protected under such amendments; and
- (5) such other considerations as the Register and
the Commissioner may deem relevant to accomplish
the purposes of the evaluation conducted under
subsection (a).
SEC. 505. EFFECTIVE DATE.
- The amendments made by sections 502 and 503 shall take
effect on the date of the enactment of this Act and shall
remain in effect until the end of the 2-year period
beginning on such date of enactment. No cause of action
based on chapter 13 of title 17, United States Code, as
added by this title, may be filed after the end of that 2-year
period.
Speaker of the House of Representatives.
Vice President of the United States and
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