DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS ACT OF 1995
Public Law 104-39
An Act
To amend title 17, United States Code, to provide an exclusive right to perform sound recordings publicly by means of digital transmissions, 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 Performance Right in Sound Recordings Act of 1995�.
SEC. 2. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS.
Section 106 of title 17, United States Code, is amended� (1) in paragraph (4) by striking �and� after the semicolon; (2) in paragraph (5) by striking the period and inserting �; and�; and (3) by adding at the end the following: �(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.�.
SEC. 3. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS.
Section 114 of title 17, United States Code, is amended� (1) in subsection (a) by striking �and (3)� and inserting �(3) and (6)�; (2) in subsection (b) in the first sentence by striking �phonorecords, or of copies of motion pictures and other audiovisual works,� and inserting �phonorecords or copies�; (3) by striking subsection (d) and inserting:
�(d) Limitations on Exclusive Right.�Notwithstanding the provisions of section 106(6)� �(1) Exempt transmissions and retransmissions.�The performance of a sound recording publicly by means of a digital audio transmission, other than as a part of an interactive service, is not an infringement of section 106(6) if the performance is part of� �(A)(i) a nonsubscription transmission other than a retransmission; �(ii) an initial nonsubscription retransmission made for direct reception by members of the public of a prior or simultaneous incidental transmission that is not made for direct reception by members of the public; or �(iii) a nonsubscription broadcast transmission; �(B) a retransmission of a nonsubscription broadcast transmission: Provided, That, in the case of a retransmission of a radio station�s broadcast transmission� �(i) the radio station�s broadcast transmission is not willfully or repeatedly retransmitted more than a radius of 150 miles from the site of the radio broadcast transmitter, however� �(I) the 150 mile limitation under this clause shall not apply when a nonsubscription broadcast transmission by a radio station licensed by the Federal Communications Commission is retransmitted on a nonsubscription basis by a terrestrial broadcast station, terrestrial translator, or terrestrial repeater licensed by the Federal Communications Commission; and �(II) in the case of a subscription retransmission of a nonsubscription broadcast retransmission covered by subclause (I), the 150 mile radius shall be measured from the transmitter site of such broadcast retransmitter; �(ii) the retransmission is of radio station broadcast transmissions that are� �(I) obtained by the retransmitter over the air; �(II) not electronically processed by the retransmitter to deliver separate and discrete signals; and �(III) retransmitted only within the local communities served by the retransmitter; �(iii) the radio station�s broadcast transmission was being retransmitted to cable systems (as defined in section 111(f)) by a satellite carrier on January 1, 1995, and that retransmission was being retransmitted by cable systems as a separate and discrete signal, and the satellite carrier obtains the radio station�s broadcast transmission in an analog format: Provided, That the broadcast transmission being retransmitted may embody the programming of no more than one radio station; or �(iv) the radio station�s broadcast transmission is made by a noncommercial educational broadcast station funded on or after January 1, 1995, under section 396(k) of the Communications Act of 1934 (47 U.S.C. 396(k)), consists solely of noncommercial educational and cultural radio programs, and the retransmission, whether or not simultaneous, is a nonsubscription terrestrial broadcast retransmission; or �(C) a transmission that comes within any of the following categories� �(i) a prior or simultaneous transmission incidental to an exempt transmission, such as a feed received by and then retransmitted by an exempt transmitter: Provided, That such incidental transmissions do not include any subscription transmission directly for reception by members of the public; �(ii) a transmission within a business establishment, confined to its premises or the immediately surrounding vicinity; �(iii) a retransmission by any retransmitter, including a multichannel video programming distributor as defined in section 602(12) of the Communications Act of 1934 (47 U.S.C. 522(12)), of a transmission by a transmitter licensed to publicly perform the sound recording as a part of that transmission, if the retransmission is simultaneous with the licensed transmission and authorized by the transmitter; or �(iv) a transmission to a business establishment for use in the ordinary course of its business: Provided, That the business recipient does not retransmit the transmission outside of its premises or the immediately surrounding vicinity, and that the transmission does not exceed the sound recording performance complement. Nothing in this clause shall limit the scope of the exemption in clause (ii). �(2) Subscription transmissions.�In the case of a subscription transmission not exempt under subsection (d)(1), the performance of a sound recording publicly by means of a digital audio transmission shall be subject to statutory licensing, in accordance with subsection (f) of this section, if� �(A) the transmission is not part of an interactive service; �(B) the transmission does not exceed the sound recording performance complement; �(C) 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; �(D) except in the case of 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 �(E) except as provided in section 1002(e) of this title, the transmission of the sound recording is accompanied 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. �(3) Licenses for transmissions by interactive services.� �(A) No interactive service shall be granted an exclusive license under section 106(6) for the performance of a sound recording publicly by means of digital audio transmission for a period in excess of 12 months, except that with respect to an exclusive license granted to an interactive service by a licensor that holds the copyright to 1,000 or fewer sound recordings, the period of such license shall not exceed 24 months: Provided, however, That the grantee of such exclusive license shall be ineligible to receive another exclusive license for the performance of that sound recording for a period of 13 months from the expiration of the prior exclusive license. �(B) The limitation set forth in subparagraph (A) of this paragraph shall not apply if� �(i) the licensor has granted and there remain in effect licenses under section 106(6) for the public performance of sound recordings by means of digital audio transmission by at least 5 different interactive services: Provided, however, That each such license must be for a minimum of 10 percent of the copyrighted sound recordings owned by the licensor that have been licensed to interactive services, but in no event less than 50 sound recordings; or �(ii) the exclusive license is granted to perform publicly up to 45 seconds of a sound recording and the sole purpose of the performance is to promote the distribution or performance of that sound recording. �(C) Notwithstanding the grant of an exclusive or nonexclusive license of the right of public performance under section 106(6), an interactive service may not publicly perform a sound recording unless a license has been granted for the public performance of any copyrighted musical work contained in the sound recording: Provided, That such license to publicly perform the copyrighted musical work may be granted either by a performing rights society representing the copyright owner or by the copyright owner. �(D) The performance of a sound recording by means of a retransmission of a digital audio transmission is not an infringement of section 106(6) if� �(i) the retransmission is of a transmission by an interactive service licensed to publicly perform the sound recording to a particular member of the public as part of that transmission; and �(ii) the retransmission is simultaneous with the licensed transmission, authorized by the transmitter, and limited to that particular member of the public intended by the interactive service to be the recipient of the transmission. �(E) For the purposes of this paragraph� �(i) a �licensor� shall include the licensing entity and any other entity under any material degree of common ownership, management, or control that owns copyrights in sound recordings; and �(ii) a �performing rights society� is an association or corporation that licenses the public performance of nondramatic musical works on behalf of the copyright owner, such as the American Society of Composers, Authors and Publishers, Broadcast Music, Inc., and SESAC, Inc. �(4) Rights not otherwise limited.� �(A) Except as expressly provided in this section, this section does not limit or impair the exclusive right to perform a sound recording publicly by means of a digital audio transmission under section 106(6). �(B) Nothing in this section annuls or limits in any way� �(i) the exclusive right to publicly perform a musical work, including by means of a digital audio transmission, under section 106(4); �(ii) the exclusive rights in a sound recording or the musical work embodied therein under sections 106(1), 106(2) and 106(3); or �(iii) any other rights under any other clause of section 106, or remedies available under this title, as such rights or remedies exist either before or after the date of enactment of the Digital Performance Right in Sound Recordings Act of 1995. �(C) Any limitations in this section on the exclusive right under section 106(6) apply only to the exclusive right under section 106(6) and not to any other exclusive rights under section 106. Nothing in this section shall be construed to annul, limit, impair or otherwise affect in any way the ability of the owner of a copyright in a sound recording to exercise the rights under sections 106(1), 106(2) and 106(3), or to obtain the remedies available under this title pursuant to such rights, as such rights and remedies exist either before or after the date of enactment of the Digital Performance Right in Sound Recordings Act of 1995.�; and (4) by adding after subsection (d) the following: �(e) Authority for Negotiations.� �(1) Notwithstanding any provision of the antitrust laws, in negotiating statutory licenses in accordance with subsection (f), any copyright owners of sound recordings and any entities performing sound recordings affected by this section may negotiate and agree upon the royalty rates and license terms and conditions for the performance of such sound recordings and the proportionate division of fees paid among copyright owners, and may designate common agents on a nonexclusive basis to negotiate, agree to, pay, or receive payments. �(2) For licenses granted under section 106(6), other than statutory licenses, such as for performances by interactive services or performances that exceed the sound recording performance complement� �(A) copyright owners of sound recordings affected by this section may designate common agents to act on their behalf to grant licenses and receive and remit royalty payments: Provided, That each copyright owner shall establish the royalty rates and material license terms and conditions unilaterally, that is, not in agreement, combination, or concert with other copyright owners of sound recordings; and �(B) entities performing sound recordings affected by this section may designate common agents to act on their behalf to obtain licenses and collect and pay royalty fees: Provided, That each entity performing sound recordings shall determine the royalty rates and material license terms and conditions unilaterally, that is, not in agreement, combination, or concert with other entities performing sound recordings. �(f) Licenses for Nonexempt Subscription Transmissions.� �(1) No later than 30 days after the enactment of the Digital Performance Right in Sound Recordings Act of 1995, 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 subsection (d)(2) of this section during the period beginning on the effective date of such Act and ending on December 31, 2000. Such terms and rates shall distinguish among the different types of digital audio transmission services then in operation. Any copyright owners of sound recordings or any entities performing sound recordings affected by this section 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. �(2) In the absence of license agreements negotiated under paragraph (1), during the 60-day period commencing 6 months after publication of the notice specified in paragraph (1), 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. In addition to the objectives set forth in section 801(b)(1), 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 as provided in paragraph (1). 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. �(3) License agreements voluntarily negotiated at any time between one or more copyright owners of sound recordings and one 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) Publication of a notice of the initiation of voluntary negotiation proceedings as specified in paragraph (1) 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 entities performing sound recordings affected by this section indicating that a new type of 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, 2000 and at 5-year intervals thereafter. �(B)(i) The procedures specified in paragraph (2) shall be repeated, in accordance with regulations that the Librarian of Congress shall prescribe, upon the filing of a petition in accordance with section 803(a)(1) during a 60-day period commencing� �(I) six months after publication of a notice of the initiation of voluntary negotiation proceedings under paragraph (1) pursuant to a petition under paragraph (4)(A)(i); or �(II) on July 1, 2000 and at 5-year intervals thereafter. �(ii) The procedures specified in paragraph (2) shall be concluded in accordance with section 802. �(5)(A) Any person who wishes to perform a sound recording publicly by means of a nonexempt subscription transmission 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. �(B) 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. �(g) Proceeds From Licensing of Subscription Transmissions.� �(1) Except in the case of a subscription transmission licensed in accordance with subsection (f) of this section� �(A) a featured recording artist who performs on a sound recording that has been licensed for a subscription transmission shall be entitled to receive payments from the copyright owner of the sound recording in accordance with the terms of the artist�s contract; and �(B) a nonfeatured recording artist who performs on a sound recording that has been licensed for a subscription transmission shall be entitled to receive payments from the copyright owner of the sound recording in accordance with the terms of the nonfeatured recording artist�s applicable contract or other applicable agreement. �(2) The copyright owner of the exclusive right under section 106(6) of this title to publicly perform a sound recording by means of a digital audio transmission shall allocate to recording artists in the following manner its receipts from the statutory licensing of subscription transmission performances of the sound recording in accordance with subsection (f) of this section: �(A) 2½ percent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by copyright owners of sound recordings and the American Federation of Musicians (or any successor entity) to be distributed to nonfeatured musicians (whether or not members of the American Federation of Musicians) who have performed on sound recordings. �(B) 2½ percent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by copyright owners of sound recordings and the American Federation of Television and Radio Artists (or any successor entity) to be distributed to nonfeatured vocalists (whether or not members of the American Federation of Television and Radio Artists) who have performed on sound recordings. �(C) 45 percent of the receipts shall be allocated, on a per sound recording basis, to the recording artist or artists featured on such sound recording (or the persons conveying rights in the artists� performance in the sound recordings). �(h) Licensing to Affiliates.� �(1) If the copyright owner of a sound recording licenses an affiliated entity the right to publicly perform a sound recording by means of a digital audio transmission under section 106(6), the copyright owner shall make the licensed sound recording available under section 106(6) on no less favorable terms and conditions to all bona fide entities that offer similar services, except that, if there are material differences in the scope of the requested license with respect to the type of service, the particular sound recordings licensed, the frequency of use, the number of subscribers served, or the duration, then the copyright owner may establish different terms and conditions for such other services. �(2) The limitation set forth in paragraph (1) of this subsection shall not apply in the case where the copyright owner of a sound recording licenses� �(A) an interactive service; or �(B) an entity to perform publicly up to 45 seconds of the sound recording and the sole purpose of the performance is to promote the distribution or performance of that sound recording. �(i) No Effect on Royalties for Underlying Works.�License fees payable for the public performance of sound recordings under section 106(6) shall not be taken into account in any administrative, judicial, or other governmental proceeding to set or adjust the royalties payable to copyright owners of musical works for the public performance of their works. It is the intent of Congress that royalties payable to copyright owners of musical works for the public performance of their works shall not be diminished in any respect as a result of the rights granted by section 106(6). �(j) Definitions.�As used in this section, the following terms have the following meanings: �(1) An �affiliated entity� is an entity engaging in digital audio transmissions covered by section 106(6), other than an interactive service, in which the licensor has any direct or indirect partnership or any ownership interest amounting to 5 percent or more of the outstanding voting or non-voting stock. �(2) A �broadcast� transmission is a transmission made by a terrestrial broadcast station licensed as such by the Federal Communications Commission. �(3) A �digital audio transmission� is a digital transmission as defined in section 101, that embodies the transmission of a sound recording. This term does not include the transmission of any audiovisual work. �(4) An �interactive service� is one that enables a member of the public to receive, on request, a transmission of a particular sound recording chosen 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 does not make a service interactive. If an entity offers both interactive and non-interactive services (either concurrently or at different times), the non-interactive component shall not be treated as part of an interactive service. �(5) A �nonsubscription� transmission is any transmission that is not a subscription transmission. �(6) A �retransmission� is a further transmission of an initial transmission, and includes any further retransmission of the same transmission. Except as provided in this section, a transmission qualifies as a �retransmission� only if it is simultaneous with the initial transmission. Nothing in this definition shall be construed to exempt a transmission that fails to satisfy a separate element required to qualify for an exemption under section 114(d)(1). �(7) The �sound recording performance complement� is the transmission during any 3-hour period, on a particular channel used by a transmitting entity, of no more than� �(A) 3 different selections of sound recordings from any one phonorecord lawfully distributed for public performance or sale in the United States, if no more than 2 such selections are transmitted consecutively; or �(B) 4 different selections of sound recordings� �(i) by the same featured recording artist; or �(ii) from any set or compilation of phonorecords lawfully distributed together as a unit for public performance or sale in the United States, if no more than three such selections are transmitted consecutively: Provided, That the transmission of selections in excess of the numerical limits provided for in clauses (A) and (B) from multiple phonorecords shall nonetheless qualify as a sound recording performance complement if the programming of the multiple phonorecords was not willfully intended to avoid the numerical limitations prescribed in such clauses. �(8) A �subscription� transmission is a transmission that is controlled and limited to particular recipients, and for which consideration is required to be paid or otherwise given by or on behalf of the recipient to receive the transmission or a package of transmissions including the transmission. �(9) A �transmission� includes both an initial transmission and a retransmission.�.
SEC. 4. MECHANICAL ROYALTIES IN DIGITAL PHONORECORD DELIVERIES.
Section 115 of title 17, United States Code, is amended� (1) in subsection (a)(1)� (A) in the first sentence by striking out �any other person� and inserting in lieu thereof �any other person, including those who make phonorecords or digital phonorecord deliveries,�; and (B) in the second sentence by inserting before the period �, including by means of a digital phonorecord delivery�; (2) in subsection (c)(2) in the second sentence by inserting �and other than as provided in paragraph (3),� after �For this purpose,�; (3) by redesignating paragraphs (3), (4), and (5) of subsection (c) as paragraphs (4), (5), and (6), respectively, and by inserting after paragraph (2) the following new paragraph: �(3)(A) A compulsory license under this section includes the right of the compulsory licensee to distribute or authorize the distribution of a phonorecord of a nondramatic musical work by means of a digital transmission which constitutes a digital phonorecord delivery, regardless of whether the digital transmission is also a public performance of the sound recording under section 106(6) of this title or of any nondramatic musical work embodied therein under section 106(4) of this title. For every digital phonorecord delivery by or under the authority of the compulsory licensee� �(i) on or before December 31, 1997, the royalty payable by the compulsory licensee shall be the royalty prescribed under paragraph (2) and chapter 8 of this title; and �(ii) on or after January 1, 1998, the royalty payable by the compulsory licensee shall be the royalty prescribed under subparagraphs (B) through (F) and chapter 8 of this title. �(B) Notwithstanding any provision of the antitrust laws, any copyright owners of nondramatic musical works and any persons entitled to obtain a compulsory license under subsection (a)(1) may negotiate and agree upon the terms and rates of royalty payments under this paragraph 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. Such authority to negotiate the terms and rates of royalty payments includes, but is not limited to, the authority to negotiate the year during which the royalty rates prescribed under subparagraphs (B) through (F) and chapter 8 of this title shall next be determined. �(C) During the period of June 30, 1996, through December 31, 1996, 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 subparagraph (A) during the period beginning January 1, 1998, and ending on the effective date of any new terms and rates established pursuant to subparagraph (C), (D) or (F), or such other date (regarding digital phonorecord deliveries) as the parties may agree. Such terms and rates shall distinguish between (i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and (ii) digital phonorecord deliveries in general. Any copyright owners of nondramatic musical works and any persons entitled to obtain a compulsory license under subsection (a)(1) may submit to the Librarian of Congress licenses covering such activities. The parties to each negotiation proceeding shall bear their own costs. �(D) In the absence of license agreements negotiated under subparagraphs (B) and (C), 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 subparagraph (E), shall be binding on all copyright owners of nondramatic musical works and persons entitled to obtain a compulsory license under subsection (a)(1) during the period beginning January 1, 1998, and ending on the effective date of any new terms and rates established pursuant to subparagraph (C), (D) or (F), or such other date (regarding digital phonorecord deliveries) as may be determined pursuant to subparagraphs (B) and (C). Such terms and rates shall distinguish between (i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and (ii) digital phonorecord deliveries in general. In addition to the objectives set forth in section 801(b)(1), in establishing such rates and terms, the copyright arbitration royalty panel may consider rates and terms under voluntary license agreements negotiated as provided in subparagraphs (B) and (C). The royalty rates payable for a compulsory license for a digital phonorecord delivery under this section shall be established de novo and no precedential effect shall be given to the amount of the royalty payable by a compulsory licensee for digital phonorecord deliveries on or before December 31, 1997. The Librarian of Congress shall also establish requirements by which copyright owners may receive reasonable notice of the use of their works under this section, and under which records of such use shall be kept and made available by persons making digital phonorecord deliveries. �(E)(i) License agreements voluntarily negotiated at any time between one or more copyright owners of nondramatic musical works and one or more persons entitled to obtain a compulsory license under subsection (a)(1) shall be given effect in lieu of any determination by the Librarian of Congress. Subject to clause (ii), the royalty rates determined pursuant to subparagraph (C), (D) or (F) shall be given effect in lieu of any contrary royalty rates specified in a contract pursuant to which a recording artist who is the author of a nondramatic musical work grants a license under that person�s exclusive rights in the musical work under sections 106 (1) and (3) or commits another person to grant a license in that musical work under sections 106 (1) and (3), to a person desiring to fix in a tangible medium of expression a sound recording embodying the musical work. �(ii) The second sentence of clause (i) shall not apply to� �(I) a contract entered into on or before June 22, 1995, and not modified thereafter for the purpose of reducing the royalty rates determined pursuant to subparagraph (C), (D) or (F) or of increasing the number of musical works within the scope of the contract covered by the reduced rates, except if a contract entered into on or before June 22, 1995, is modified thereafter for the purpose of increasing the number of musical works within the scope of the contract, any contrary royalty rates specified in the contract shall be given effect in lieu of royalty rates determined pursuant to subparagraph (C), (D) or (F) for the number of musical works within the scope of the contract as of June 22, 1995; and �(II) a contract entered into after the date that the sound recording is fixed in a tangible medium of expression substantially in a form intended for commercial release, if at the time the contract is entered into, the recording artist retains the right to grant licenses as to the musical work under sections 106(1) and 106(3). �(F) The procedures specified in subparagraphs (C) and (D) shall be repeated and concluded, in accordance with regulations that the Librarian of Congress shall prescribe, in each fifth calendar year after 1997, except to the extent that different years for the repeating and concluding of such proceedings may be determined in accordance with subparagraphs (B) and (C). �(G) Except as provided in section 1002(e) of this title, a digital phonorecord delivery licensed under this paragraph shall be accompanied by the information encoded in the 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. �(H)(i) A digital phonorecord delivery of a sound recording is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and section 509, unless� �(I) the digital phonorecord delivery has been authorized by the copyright owner of the sound recording; and �(II) the owner of the copyright in the sound recording or the entity making the digital phonorecord delivery has obtained a compulsory license under this section or has otherwise been authorized by the copyright owner of the musical work to distribute or authorize the distribution, by means of a digital phonorecord delivery, of each musical work embodied in the sound recording. �(ii) Any cause of action under this subparagraph shall be in addition to those available to the owner of the copyright in the nondramatic musical work under subsection (c)(6) and section 106(4) and the owner of the copyright in the sound recording under section 106(6). �(I) The liability of the copyright owner of a sound recording for infringement of the copyright in a nondramatic musical work embodied in the sound recording shall be determined in accordance with applicable law, except that the owner of a copyright in a sound recording shall not be liable for a digital phonorecord delivery by a third party if the owner of the copyright in the sound recording does not license the distribution of a phonorecord of the nondramatic musical work. �(J) Nothing in section 1008 shall be construed to prevent the exercise of the rights and remedies allowed by this paragraph, paragraph (6), and chapter 5 in the event of a digital phonorecord delivery, except that no action alleging infringement of copyright may be brought under this title against a manufacturer, importer or distributor of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or against a consumer, based on the actions described in such section. �(K) Nothing in this section annuls or limits (i) the exclusive right to publicly perform a sound recording or the musical work embodied therein, including by means of a digital transmission, under sections 106(4) and 106(6), (ii) except for compulsory licensing under the conditions specified by this section, the exclusive rights to reproduce and distribute the sound recording and the musical work embodied therein under sections 106(1) and 106(3), including by means of a digital phonorecord delivery, or (iii) any other rights under any other provision of section 106, or remedies available under this title, as such rights or remedies exist either before or after the date of enactment of the Digital Performance Right in Sound Recordings Act of 1995. �(L) The provisions of this section concerning digital phonorecord deliveries shall not apply to any exempt transmissions or retransmissions under section 114(d)(1). The exemptions created in section 114(d)(1) do not expand or reduce the rights of copyright owners under section 106 (1) through (5) with respect to such transmissions and retransmissions.�; and (5) by adding after subsection (c) the following: �(d) Definition.�As used in this section, the following term has the following meaning: A �digital phonorecord delivery� is each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. A digital phonorecord delivery does not result from a real-time, non-interactive subscription transmission of a sound recording where no reproduction of the sound recording or the musical work embodied therein is made from the inception of the transmission through to its receipt by the transmission recipient in order to make the sound recording audible.�.
SEC. 5. CONFORMING AMENDMENTS.
(a) Definitions.�Section 101 of title 17, United States Code, is amended by inserting after the definition of �device�, �machine�, or �process� the following: �A �digital transmission� is a transmission in whole or in part in a digital or other non-analog format.�. (b) Limitations on Exclusive Rights: Secondary Transmissions.�Section 111(c)(1) of title 17, United States Code, is amended in the first sentence by inserting �and section 114(d)� after �of this subsection�. (c) Limitations on Exclusive Rights: Secondary Transmissions of Superstations and Network Stations for Private Home Viewing.� (1) Section 119(a)(1) of title 17, United States Code, is amended in the first sentence by inserting �and section 114(d)� after �of this subsection�. (2) Section 119(a)(2)(A) of title 17, United States Code, is amended in the first sentence by inserting �and section 114(d)� after �of this subsection�. (d) Copyright Arbitration Royalty Panels.� (1) Section 801(b)(1) of title 17, United States Code, is amended in the first and second sentences by striking �115� each place it appears and inserting �114, 115,�. (2) Section 802(c) of title 17, United States Code, is amended in the third sentence by striking �section 111, 116, or 119,� and inserting �section 111, 114, 116, or 119, any person entitled to a compulsory license under section 114(d), any person entitled to a compulsory license under section 115,�. (3) Section 802(g) of title 17, United States Code, is amended in the third sentence by inserting �114,� after �111,�. (4) Section 802(h)(2) of title 17, United States Code, is amended by inserting �114,� after �111,�. (5) Section 803(a)(1) of title 17, United States Code, is amended in the first sentence by striking �115� and inserting �114, 115� and by striking �and (4)� and inserting �(4) and (5)�. (6) Section 803(a)(3) of title 17, United States Code, is amended by inserting before the period �or as prescribed in section 115(c)(3)(D)�. (7) Section 803(a) of title 17, United States Code, is amended by inserting after paragraph (4) the following new paragraph: �(5) With respect to proceedings under section 801(b)(1) concerning the determination of reasonable terms and rates of royalty payments as provided in section 114, the Librarian of Congress shall proceed when and as provided by that section.�.
SEC. 6. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect 3 months after the date of enactment of this Act, except that the provisions of sections 114(e) and 114(f) of title 17, United States Code (as added by section 3 of this Act) shall take effect immediately upon the date of enactment of this Act.
Approved November 1, 1995.
LEGISLATIVE HISTORY�S. 227 (H.R. 1506): HOUSE REPORTS: No. 104-274 accompanying H.R. 1506 (Comm. on the Judiciary). SENATE REPORTS: No. 104-128 (Comm. on the Judiciary). CONGRESSIONAL RECORD, Vol. 141 (1995): Aug. 8, considered and passed Senate. Oct. 17, H.R. 1506 and S. 227 considered and passed House. |
DIGITAL MILLENNIUM COPYRIGHT ACT
Public Law 105-304
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:
�12. Copyright Protection and Management Systems� .� .� .� .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 submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider�s system or network. �(3) Contents of counter notification.�To be effective under this subsection, a counter notification must be a written communication provided to the service provider�s designated agent that includes substantially the following: �(A) A physical or electronic signature of the subscriber. �(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. �(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. �(D) The subscriber�s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber�s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. �(4) Limitation on other liability.�A service provider�s compliance with paragraph (2) shall not subject the service provider to liability for copyright infringement with respect to the material identified in the notice provided under subsection (c)(1)(C). �(h) Subpoena To Identify Infringer.� �(1) Request.�A copyright owner or a person authorized to act on the owner�s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection. �(2) Contents of request.�The request may be made by filing with the clerk� �(A) a copy of a notification described in subsection (c)(3)(A); �(B) a proposed subpoena; and �(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title. �(3) Contents of subpoena.�The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider. �(4) Basis for granting subpoena.�If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider. �(5) Actions of service provider receiving subpoena.�Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification. �(6) Rules applicable to subpoena.�Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum. �(i) Conditions for Eligibility.� �(1) Accommodation of technology.�The limitations on liability established by this section shall apply to a service provider only if the service provider� �(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider�s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider�s system or network who are repeat infringers; and �(B) accommodates and does not interfere with standard technical measures. �(2) Definition.�As used in this subsection, the term �standard technical measures� means technical measures that are used by copyright owners to identify or protect copyrighted works and� �(A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process; �(B) are available to any person on reasonable and nondiscriminatory terms; and �(C) do not impose substantial costs on service providers or substantial burdens on their systems or networks. �(j) Injunctions.�The following rules shall apply in the case of any application for an injunction under section 502 against a service provider that is not subject to monetary remedies under this section: �(1) Scope of relief.�(A) With respect to conduct other than that which qualifies for the limitation on remedies set forth in subsection (a), the court may grant injunctive relief with respect to a service provider only in one or more of the following forms: �(i) An order restraining the service provider from providing access to infringing material or activity residing at a particular online site on the provider�s system or network. �(ii) An order restraining the service provider from providing access to a subscriber or account holder of the service provider�s system or network who is engaging in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order. �(iii) Such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted material specified in the order of the court at a particular online location, if such relief is the least burdensome to the service provider among the forms of relief comparably effective for that purpose. �(B) If the service provider qualifies for the limitation on remedies described in subsection (a), the court may only grant injunctive relief in one or both of the following forms: �(i) An order restraining the service provider from providing access to a subscriber or account holder of the service provider�s system or network who is using the provider�s service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order. �(ii) An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States. �(2) Considerations.�The court, in considering the relevant criteria for injunctive relief under applicable law, shall consider� �(A) whether such an injunction, either alone or in combination with other such injunctions issued against the same service provider under this subsection, would significantly burden either the provider or the operation of the provider�s system or network; �(B) the magnitude of the harm likely to be suffered by the copyright owner in the digital network environment if steps are not taken to prevent or restrain the infringement; �(C) whether implementation of such an injunction would be technically feasible and effective, and would not interfere with access to noninfringing material at other online locations; and �(D) whether other less burdensome and comparably effective means of preventing or restraining access to the infringing material are available. �(3) Notice and Ex Parte Orders.�Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider�s communications network. �(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 �Subscription�; (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:
�180. Assumption of Certain Contractual Obligations� .� .� ..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:
�13. Protection of Original Designs� .� .� .� .� .� .� ..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.
Approved October 28, 1998.
LEGISLATIVE HISTORY�H.R. 2281 (S. 2037): HOUSE REPORTS: Nos. 105-551, Pt. 1 (Comm. on the Judiciary) and Pt. 2 (Comm. on Commerce) and 105-796 (Comm. of Commerce). SENATE REPORTS: No. 105-190 accompanying S. 2037 (Comm. on the Judiciary). CONGRESSIONAL RECORD, Vol. 144 (1998): Aug. 4, considered and passed House. Sept. 17, considered and passed Senate, amended, in lieu of S. 2037. Oct. 8, Senate agreed to conference report. Oct. 12, House agreed to conference report. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 34 (1998): Oct. 28, Presidential statement. |