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Digital Millenium Copyright Act (english)
--H.R.2281--
H.R.2281
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. 1. Short title.
Sec. 2. Table of contents.
TITLE I--WIPO TREATIES IMPLEMENTATION
Sec. 101. Short title.
Sec. 102. Technical amendments.
Sec. 103. Copyright protection systems and copyright management
information.
Sec. 104. Evaluation of impact of copyright law and amendments
on electronic commerce and technological development.
Sec. 105. Effective date.
TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
Sec. 201. Short title.
Sec. 202. Limitations on liability for copyright
infringement.
Sec. 203. Effective date.
TITLE III--COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
Sec. 301. Short title.
Sec. 302. Limitations on exclusive rights; computer
programs.
TITLE IV--MISCELLANEOUS PROVISIONS
Sec. 401. Provisions Relating to the Commissioner of Patents and
Trademarks and the Register of Copyrights.
Sec. 402. Ephemeral recordings.
Sec. 403. Limitations on exclusive rights; distance
education.
Sec. 404. Exemption for libraries and
archives.
Sec. 405. Scope of exclusive rights in sound recordings;
ephemeral recordings.
Sec. 406. Assumption of contractual obligations related to
transfers of rights in motion pictures.
Sec. 407. Effective date.
TITLE V--PROTECTION OF CERTAIN ORIGINAL DESIGNS
Sec. 501. Short title.
Sec. 502. Protection of certain original
designs.
Sec. 503. Conforming amendments.
Sec. 504. Joint study of the effect of this
title.
Sec. 505. Effective date.
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';
(B) in paragraph (1)--
(i) in subparagraph (B) by striking `nation or nations
adhering to the Berne Convention' and inserting `treaty party or
parties';
(ii) in subparagraph (C) by striking `does not adhere to the
Berne Convention' and inserting `is not a treaty party';
and
(iii) in subparagraph (D) by striking `does not adhere to
the Berne Convention' and inserting `is not a treaty party';
and
(C) in the matter following paragraph (3) by striking `For the
purposes of section 411, the `country of origin' of any other Berne
Convention work is not the United
States.';
(3) by inserting after the definition of `fixed' the
following:
`The `Geneva Phonograms Convention' is the Convention for the
Protection of Producers of Phonograms Against Unauthorized Duplication of
Their Phonograms, concluded at Geneva, Switzerland, on October 29,
1971.';
(4) by inserting after the definition of `including' the
following:
`An `international agreement' is--
`(1) the Universal Copyright
Convention;
`(2) the Geneva Phonograms
Convention;
`(3) the Berne Convention;
`(4) the WTO Agreement;
`(5) the WIPO Copyright
Treaty;
`(6) the WIPO Performances and Phonograms Treaty;
and
`(7) any other copyright treaty to which the United States is
a party.';
(5) by inserting after the definition of `transmit' the
following:
`A `treaty party' is a country or intergovernmental organization
other than the United States that is a party to an international
agreement.';
(6) by inserting after the definition of `widow' the
following:
`The `WIPO Copyright Treaty' is the WIPO Copyright Treaty
concluded at Geneva, Switzerland, on December 20,
1996.';
(7) by inserting after the definition of `The `WIPO Copyright
Treaty' the following:
`The `WIPO Performances and Phonograms Treaty' is the WIPO
Performances and Phonograms Treaty concluded at Geneva, Switzerland, on
December 20, 1996.'; and
(8) by inserting after the definition of `work made for hire'
the following:
`The terms `WTO Agreement' and `WTO member country' have the
meanings given those terms in paragraphs (9) and (10), respectively, of
section 2 of the Uruguay Round Agreements Act.'.
(b) SUBJECT MATTER OF COPYRIGHT; NATIONAL ORIGIN- Section 104 of
title 17, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1) by striking `foreign nation that is a
party to a copyright treaty to which the United States is also a party'
and inserting `treaty party';
(B) in paragraph (2) by striking `party to the Universal
Copyright Convention' and inserting `treaty
party';
(C) by redesignating paragraph (5) as paragraph
(6);
(D) by redesignating paragraph (3) as paragraph (5) and
inserting it after paragraph (4);
(E) by inserting after paragraph (2) the
following:
`(3) the work is a sound recording that was first fixed in a
treaty party; or';
(F) in paragraph (4) by striking `Berne Convention work' and
inserting `pictorial, graphic, or sculptural work that is incorporated in
a building or other structure, or an architectural work that is embodied
in a building and the building or structure is located in the United
States or a treaty party'; and
(G) by inserting after paragraph (6), as so redesignated, the
following:
`For purposes of paragraph (2), a work that is published in the
United States or a treaty party within 30 days after publication in a foreign
nation that is not a treaty party shall be considered to be first published in
the United States or such treaty party, as the case may be.'; and
(2) by adding at the end the following new
subsection:
`(d) EFFECT OF PHONOGRAMS TREATIES- Notwithstanding the provisions
of subsection (b), no works other than sound recordings shall be eligible for
protection under this title solely by virtue of the adherence of the United
States to the Geneva Phonograms Convention or the WIPO Performances and
Phonograms Treaty.'.
(c) COPYRIGHT IN RESTORED WORKS- Section 104A(h) of title 17,
United States Code, is amended--
(1) in paragraph (1), by striking subparagraphs (A) and (B) and
inserting the following:
`(A) a nation adhering to the Berne
Convention;
`(B) a WTO member country;
`(C) a nation adhering to the WIPO Copyright
Treaty;
`(D) a nation adhering to the WIPO Performances and Phonograms
Treaty; or
`(E) subject to a Presidential proclamation under subsection
(g).';
(2) by amending paragraph (3) to read as
follows:
`(3) The term `eligible country' means a nation, other than the
United States, that--
`(A) becomes a WTO member country after the date of the
enactment of the Uruguay Round Agreements
Act;
`(B) on such date of enactment is, or after such date of
enactment becomes, a nation adhering to the Berne
Convention;
`(C) adheres to the WIPO Copyright
Treaty;
`(D) adheres to the WIPO Performances and Phonograms Treaty;
or
`(E) after such date of enactment becomes subject to a
proclamation under subsection (g).';
(3) in paragraph (6)--
(A) in subparagraph (C)(iii) by striking `and' after the
semicolon;
(B) at the end of subparagraph (D) by striking the period and
inserting `; and'; and
(C) by adding after subparagraph (D) the
following:
`(E) if the source country for the work is an eligible country
solely by virtue of its adherence to the WIPO Performances and Phonograms
Treaty, is a sound recording.';
(4) in paragraph (8)(B)(i)--
(A) by inserting `of which' before `the majority';
and
(B) by striking `of eligible countries';
and
(5) by striking paragraph (9).
(d) REGISTRATION AND INFRINGEMENT ACTIONS- Section 411(a) of title
17, United States Code, is amended in the first sentence--
(1) by striking `actions for infringement of copyright in Berne
Convention works whose country of origin is not the United States and';
and
(2) by inserting `United States' after `no action for
infringement of the copyright in any'.
(e) STATUTE OF LIMITATIONS- Section 507(a) of title 17, United
State Code, is amended by striking `No' and inserting `Except as expressly
provided otherwise in this title, no'.
SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT MANAGEMENT
INFORMATION.
(a) IN GENERAL- Title 17, United States Code, is amended by adding
at the end the following new chapter:
`CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS
`Sec.
`1201. Circumvention of copyright protection
systems.
`1202. Integrity of copyright management
information.
`1203. Civil remedies.
`1204. Criminal offenses and penalties.
`1205. Savings clause.
`Sec. 1201. Circumvention of copyright protection systems
`(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES-
(1)(A) No person shall circumvent a technological measure that effectively
controls access to a work protected 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.
`(g) ENCRYPTION RESEARCH-
`(1) DEFINITIONS- For purposes of this
subsection--
`(A) the term `encryption research' means activities necessary
to identify and analyze flaws and vulnerabilities of encryption
technologies applied to copyrighted works, if these activities are
conducted to advance the state of knowledge in the field of encryption
technology or to assist in the development of encryption products;
and
`(B) the term `encryption technology' means the scrambling and
descrambling of information using mathematical formulas or
algorithms.
`(2) PERMISSIBLE ACTS OF ENCRYPTION RESEARCH- Notwithstanding
the provisions of subsection (a)(1)(A), it is not a violation of 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.
`(j) SECURITY TESTING-
`(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).
`(c) AWARD OF DAMAGES-
`(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.
`(5) Innocent
violations-
`(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.
`(b) SYSTEM CACHING-
`(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 PUBLISHED 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.
`(k) DEFINITIONS-
`(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--
(1) in subsection
(a)--
(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';
(2) in subsection
(b)--
(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
(3) in subsection
(c)--
(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;
`(iii) the
transmission--
`(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';
(B) in paragraph
(1)--
(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--
(1) in subsection
(f)--
(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
`Sec.
`1301. Designs
protected.
`1302. Designs not subject to
protection.
`1303. Revisions, adaptations, and
rearrangements.
`1304. Commencement of
protection.
`1305. Term of
protection.
`1306. Design notice.
`1307. Effect of omission of
notice.
`1308. Exclusive
rights.
`1309. Infringement.
`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.
`1316. Fees.
`1317. Regulations.
`1318. Copies of
records.
`1319. Correction of errors in
certificates.
`1320. Ownership and
transfer.
`1321. Remedy for
infringement.
`1322. Injunctions.
`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
`(a) 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--
`(1) not original;
`(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--
`(1) may be made--
`(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
President of the Senate.
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