--H.R.2281--
H.R.2281
One Hundred Fifth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the twenty-seventh day of January, one thousand nine hundred and ninety-eight
An Act
To amend title 17, United States Code, to implement the World Intellectual
Property Organization Copyright Treaty and Performances and Phonograms Treaty, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Digital Millennium Copyright Act'.
SEC. 2. TABLE OF CONTENTS.
Sec. 2. Table of contents.
TITLE I--WIPO TREATIES IMPLEMENTATION
Sec. 102. Technical amendments.
Sec. 103. Copyright protection systems and copyright management information.
Sec. 104. Evaluation of impact of copyright law and amendments on electronic commerce
and technological development.
Sec. 105. Effective date.
TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
Sec. 202. Limitations on liability for copyright infringement.
Sec. 203. Effective date.
TITLE III--COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
Sec. 302. Limitations on exclusive rights; computer programs.
TITLE IV--MISCELLANEOUS PROVISIONS
Sec. 401. Provisions Relating to the Commissioner of Patents and Trademarks and
the Register of Copyrights.
Sec. 402. Ephemeral recordings.
Sec. 403. Limitations on exclusive rights; distance education.
Sec. 404. Exemption for libraries and archives.
Sec. 405. Scope of exclusive rights in sound recordings; ephemeral recordings.
Sec. 406. Assumption of contractual obligations related to transfers of rights
in motion pictures.
Sec. 407. Effective date.
TITLE V--PROTECTION OF CERTAIN ORIGINAL DESIGNS
Sec. 502. Protection of certain original designs.
Sec. 503. Conforming amendments.
Sec. 504. Joint study of the effect of this title.
Sec. 505. Effective date.
TITLE I--WIPO TREATIES IMPLEMENTATION
SEC. 101. SHORT TITLE.
This title may be cited as the `WIPO Copyright and Performances and Phonograms
Treaties Implementation Act of 1998'.
SEC. 102. TECHNICAL AMENDMENTS.
(a) DEFINITIONS- Section 101 of title 17, United States Code, is amended--
(1) by striking the definition of `Berne Convention work';
(2) in the definition of `The `country of origin' of a Berne Convention work'--
(A) by striking `The `country of origin' of a Berne Convention work, for purposes
of section 411, is the United States if' and inserting `For purposes of section
411, a work is a `United States work' only if';
(i) in subparagraph (B) by striking `nation or nations adhering to the Berne
Convention' and inserting `treaty party or parties';
(ii) in subparagraph (C) by striking `does not adhere to the Berne Convention'
and inserting `is not a treaty party'; and
(iii) in subparagraph (D) by striking `does not adhere to the Berne Convention'
and inserting `is not a treaty party'; and
(C) in the matter following paragraph (3) by striking `For the purposes of section
411, the `country of origin' of any other Berne Convention work is not the United
States.';
(3) by inserting after the definition of `fixed' the following:
`The `Geneva Phonograms Convention' is the Convention for the Protection of Producers
of Phonograms Against Unauthorized Duplication of Their Phonograms, concluded
at Geneva, Switzerland, on October 29, 1971.';
(4) by inserting after the definition of `including' the following:
`An `international agreement' is--
`(1) the Universal Copyright Convention;
`(2) the Geneva Phonograms Convention;
`(3) the Berne Convention;
`(5) the WIPO Copyright Treaty;
`(6) the WIPO Performances and Phonograms Treaty; and
`(7) any other copyright treaty to which the United States is a party.';
(5) by inserting after the definition of `transmit' the following:
`A `treaty party' is a country or intergovernmental organization other than the
United States that is a party to an international agreement.';
(6) by inserting after the definition of `widow' the following:
`The `WIPO Copyright Treaty' is the WIPO Copyright Treaty concluded at Geneva,
Switzerland, on December 20, 1996.';
(7) by inserting after the definition of `The `WIPO Copyright Treaty' the following:
`The `WIPO Performances and Phonograms Treaty' is the WIPO Performances and Phonograms
Treaty concluded at Geneva, Switzerland, on December 20, 1996.'; and
(8) by inserting after the definition of `work made for hire' the following:
`The terms `WTO Agreement' and `WTO member country' have the meanings given those
terms in paragraphs (9) and (10), respectively, of section 2 of the Uruguay Round
Agreements Act.'.
(b) SUBJECT MATTER OF COPYRIGHT; NATIONAL ORIGIN- Section 104 of title 17, United
States Code, is amended--
(A) in paragraph (1) by striking `foreign nation that is a party to a copyright
treaty to which the United States is also a party' and inserting `treaty party';
(B) in paragraph (2) by striking `party to the Universal Copyright Convention'
and inserting `treaty party';
(C) by redesignating paragraph (5) as paragraph (6);
(D) by redesignating paragraph (3) as paragraph (5) and inserting it after paragraph
(4);
(E) by inserting after paragraph (2) the following:
`(3) the work is a sound recording that was first fixed in a treaty party; or';
(F) in paragraph (4) by striking `Berne Convention work' and inserting `pictorial,
graphic, or sculptural work that is incorporated in a building or other structure,
or an architectural work that is embodied in a building and the building or structure
is located in the United States or a treaty party'; and
(G) by inserting after paragraph (6), as so redesignated, the following:
`For purposes of paragraph (2), a work that is published in the United States or
a treaty party within 30 days after publication in a foreign nation that is not
a treaty party shall be considered to be first published in the United States or
such treaty party, as the case may be.'; and
(2) by adding at the end the following new subsection:
`(d) EFFECT OF PHONOGRAMS TREATIES- Notwithstanding the provisions of subsection
(b), no works other than sound recordings shall be eligible for protection under
this title solely by virtue of the adherence of the United States to the Geneva
Phonograms Convention or the WIPO Performances and Phonograms Treaty.'.
(c) COPYRIGHT IN RESTORED WORKS- Section 104A(h) of title 17, United States Code,
is amended--
(1) in paragraph (1), by striking subparagraphs (A) and (B) and inserting the
following:
`(A) a nation adhering to the Berne Convention;
`(B) a WTO member country;
`(C) a nation adhering to the WIPO Copyright Treaty;
`(D) a nation adhering to the WIPO Performances and Phonograms Treaty; or
`(E) subject to a Presidential proclamation under subsection (g).';
(2) by amending paragraph (3) to read as follows:
`(3) The term `eligible country' means a nation, other than the United States,
that--
`(A) becomes a WTO member country after the date of the enactment of the Uruguay
Round Agreements Act;
`(B) on such date of enactment is, or after such date of enactment becomes, a
nation adhering to the Berne Convention;
`(C) adheres to the WIPO Copyright Treaty;
`(D) adheres to the WIPO Performances and Phonograms Treaty; or
`(E) after such date of enactment becomes subject to a proclamation under subsection
(g).';
(A) in subparagraph (C)(iii) by striking `and' after the semicolon;
(B) at the end of subparagraph (D) by striking the period and inserting `; and';
and
(C) by adding after subparagraph (D) the following:
`(E) if the source country for the work is an eligible country solely by virtue
of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording.';
(4) in paragraph (8)(B)(i)--
(A) by inserting `of which' before `the majority'; and
(B) by striking `of eligible countries'; and
(5) by striking paragraph (9).
(d) REGISTRATION AND INFRINGEMENT ACTIONS- Section 411(a) of title 17, United States
Code, is amended in the first sentence--
(1) by striking `actions for infringement of copyright in Berne Convention works
whose country of origin is not the United States and'; and
(2) by inserting `United States' after `no action for infringement of the copyright
in any'.
(e) STATUTE OF LIMITATIONS- Section 507(a) of title 17, United State Code, is amended
by striking `No' and inserting `Except as expressly provided otherwise in this
title, no'.
SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT MANAGEMENT INFORMATION.
(a) IN GENERAL- Title 17, United States Code, is amended by adding at the end the
following new chapter:
`CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS
`Sec.
`1201. Circumvention of copyright protection systems.
`1202. Integrity of copyright management information.
`1204. Criminal offenses and penalties.
`Sec. 1201. Circumvention of copyright protection systems
`(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES- (1)(A) No person
shall circumvent a technological measure that effectively controls access to a
work protected under this title. The prohibition contained in the preceding sentence
shall take effect at the end of the 2-year period beginning on the date of the
enactment of this chapter.
`(B) The prohibition contained in subparagraph (A) shall not apply to persons who
are users of a copyrighted work which is in a particular class of works, if such
persons are, or are likely to be in the succeeding 3-year period, adversely affected
by virtue of such prohibition in their ability to make noninfringing uses of that
particular class of works under this title, as determined under subparagraph (C).
`(C) During the 2-year period described in subparagraph (A), and during each succeeding
3-year period, the Librarian of Congress, upon the recommendation of the Register
of Copyrights, who shall consult with the Assistant Secretary for Communications
and Information of the Department of Commerce and report and comment on his or
her views in making such recommendation, shall make the determination in a rulemaking
proceeding on the record for purposes of subparagraph (B) of whether persons who
are users of a copyrighted work are, or are likely to be in the succeeding 3-year
period, adversely affected by the prohibition under subparagraph (A) in their ability
to make noninfringing uses under this title of a particular class of copyrighted
works. In conducting such rulemaking, the Librarian shall examine--
`(i) the availability for use of copyrighted works;
`(ii) the availability for use of works for nonprofit archival, preservation,
and educational purposes;
`(iii) the impact that the prohibition on the circumvention of technological measures
applied to copyrighted works has on criticism, comment, news reporting, teaching,
scholarship, or research;
`(iv) the effect of circumvention of technological measures on the market for
or value of copyrighted works; and
`(v) such other factors as the Librarian considers appropriate.
`(D) The Librarian shall publish any class of copyrighted works for which the Librarian
has determined, pursuant to the rulemaking conducted under subparagraph (C), that
noninfringing uses by persons who are users of a copyrighted work are, or are likely
to be, adversely affected, and the prohibition contained in subparagraph (A) shall
not apply to such users with respect to such class of works for the ensuing 3-year
period.
`(E) Neither the exception under subparagraph (B) from the applicability of the
prohibition contained in subparagraph (A), nor any determination made in a rulemaking
conducted under subparagraph (C), may be used as a defense in any action to enforce
any provision of this title other than this paragraph.
`(2) No person shall manufacture, import, offer to the public, provide, or otherwise
traffic in any technology, product, service, device, component, or part thereof,
that--
`(A) is primarily designed or produced for the purpose of circumventing a technological
measure that effectively controls access to a work protected under this title;
`(B) has only limited commercially significant purpose or use other than to circumvent
a technological measure that effectively controls access to a work protected under
this title; or
`(C) is marketed by that person or another acting in concert with that person
with that person's knowledge for use in circumventing a technological measure
that effectively controls access to a work protected under this title.
`(3) As used in this subsection--
`(A) to `circumvent a technological measure' means to descramble a scrambled work,
to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate,
or impair a technological measure, without the authority of the copyright owner;
and
`(B) a technological measure `effectively controls access to a work' if the measure,
in the ordinary course of its operation, requires the application of information,
or a process or a treatment, with the authority of the copyright owner, to gain
access to the work.
`(b) ADDITIONAL VIOLATIONS- (1) No person shall manufacture, import, offer to the
public, provide, or otherwise traffic in any technology, product, service, device,
component, or part thereof, that--
`(A) is primarily designed or produced for the purpose of circumventing protection
afforded by a technological measure that effectively protects a right of a copyright
owner under this title in a work or a portion thereof;
`(B) has only limited commercially significant purpose or use other than to circumvent
protection afforded by a technological measure that effectively protects a right
of a copyright owner under this title in a work or a portion thereof; or
`(C) is marketed by that person or another acting in concert with that person
with that person's knowledge for use in circumventing protection afforded by a
technological measure that effectively protects a right of a copyright owner under
this title in a work or a portion thereof.
`(2) As used in this subsection--
`(A) to `circumvent protection afforded by a technological measure' means avoiding,
bypassing, removing, deactivating, or otherwise impairing a technological measure;
and
`(B) a technological measure `effectively protects a right of a copyright owner
under this title' if the measure, in the ordinary course of its operation, prevents,
restricts, or otherwise limits the exercise of a right of a copyright owner under
this title.
`(c) OTHER RIGHTS, ETC., NOT AFFECTED- (1) Nothing in this section shall affect
rights, remedies, limitations, or defenses to copyright infringement, including
fair use, under this title.
`(2) Nothing in this section shall enlarge or diminish vicarious or contributory
liability for copyright infringement in connection with any technology, product,
service, device, component, or part thereof.
`(3) Nothing in this section shall require that the design of, or design and selection
of parts and components for, a consumer electronics, telecommunications, or computing
product provide for a response to any particular technological measure, so long
as such part or component, or the product in which such part or component is integrated,
does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).
`(4) Nothing in this section shall enlarge or diminish any rights of free speech
or the press for activities using consumer electronics, telecommunications, or
computing products.
`(d) EXEMPTION FOR NONPROFIT LIBRARIES, ARCHIVES, AND EDUCATIONAL INSTITUTIONS-
(1) A nonprofit library, archives, or educational institution which gains access
to a commercially exploited copyrighted work solely in order to make a good faith
determination of whether to acquire a copy of that work for the sole purpose of
engaging in conduct permitted under this title shall not be in violation of subsection
(a)(1)(A). A copy of a work to which access has been gained under this paragraph--
`(A) may not be retained longer than necessary to make such good faith determination;
and
`(B) may not be used for any other purpose.
`(2) The exemption made available under paragraph (1) shall only apply with respect
to a work when an identical copy of that work is not reasonably available in another
form.
`(3) A nonprofit library, archives, or educational institution that willfully for
the purpose of commercial advantage or financial gain violates paragraph (1)--
`(A) shall, for the first offense, be subject to the civil remedies under section
1203; and
`(B) shall, for repeated or subsequent offenses, in addition to the civil remedies
under section 1203, forfeit the exemption provided under paragraph (1).
`(4) This subsection may not be used as a defense to a claim under subsection (a)(2)
or (b), nor may this subsection permit a nonprofit library, archives, or educational
institution to manufacture, import, offer to the public, provide, or otherwise
traffic in any technology, product, service, component, or part thereof, which
circumvents a technological measure.
`(5) In order for a library or archives to qualify for the exemption under this
subsection, the collections of that library or archives shall be--
`(A) open to the public; or
`(B) available not only to researchers affiliated with the library or archives
or with the institution of which it is a part, but also to other persons doing
research in a specialized field.
`(e) LAW ENFORCEMENT, INTELLIGENCE, AND OTHER GOVERNMENT ACTIVITIES- This section
does not prohibit any lawfully authorized investigative, protective, information
security, or intelligence activity of an officer, agent, or employee of the United
States, a State, or a political subdivision of a State, or a person acting pursuant
to a contract with the United States, a State, or a political subdivision of a
State. For purposes of this subsection, the term `information security' means activities
carried out in order to identify and address the vulnerabilities of a government
computer, computer system, or computer network.
`(f) REVERSE ENGINEERING- (1) Notwithstanding the provisions of subsection (a)(1)(A),
a person who has lawfully obtained the right to use a copy of a computer program
may circumvent a technological measure that effectively controls access to a particular
portion of that program for the sole purpose of identifying and analyzing those
elements of the program that are necessary to achieve interoperability of an independently
created computer program with other programs, and that have not previously been
readily available to the person engaging in the circumvention, to the extent any
such acts of identification and analysis do not constitute infringement under this
title.
`(2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may
develop and employ technological means to circumvent a technological measure, or
to circumvent protection afforded by a technological measure, in order to enable
the identification and analysis under paragraph (1), or for the purpose of enabling
interoperability of an independently created computer program with other programs,
if such means are necessary to achieve such interoperability, to the extent that
doing so does not constitute infringement under this title.
`(3) The information acquired through the acts permitted under paragraph (1), and
the means permitted under paragraph (2), may be made available to others if the
person referred to in paragraph (1) or (2), as the case may be, provides such information
or means solely for the purpose of enabling interoperability of an independently
created computer program with other programs, and to the extent that doing so does
not constitute infringement under this title or violate applicable law other than
this section.
`(4) For purposes of this subsection, the term `interoperability' means the ability
of computer programs to exchange information, and of such programs mutually to
use the information which has been exchanged.
`(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.
`(1) DEFINITION- For purposes of this subsection, the term `security testing'
means accessing a computer, computer system, or computer network, solely for the
purpose of good faith testing, investigating, or correcting, a security flaw or
vulnerability, with the authorization of the owner or operator of such computer,
computer system, or computer network.
`(2) PERMISSIBLE ACTS OF SECURITY TESTING- Notwithstanding the provisions of subsection
(a)(1)(A), it is not a violation of that subsection for a person to engage in
an act of security testing, if such act does not constitute infringement under
this title or a violation of applicable law other than this section, including
section 1030 of title 18 and those provisions of title 18 amended by the Computer
Fraud and Abuse Act of 1986.
`(3) FACTORS IN DETERMINING EXEMPTION- In determining whether a person qualifies
for the exemption under paragraph (2), the factors to be considered shall include--
`(A) whether the information derived from the security testing was used solely
to promote the security of the owner or operator of such computer, computer system
or computer network, or shared directly with the developer of such computer,
computer system, or computer network; and
`(B) whether the information derived from the security testing was used or maintained
in a manner that does not facilitate infringement under this title or a violation
of applicable law other than this section, including a violation of privacy or
breach of security.
`(4) USE OF TECHNOLOGICAL MEANS FOR SECURITY TESTING- Notwithstanding the provisions
of subsection (a)(2), it is not a violation of that subsection for a person to
develop, produce, distribute or employ technological means for the sole purpose
of performing the acts of security testing described in subsection (2), provided
such technological means does not otherwise violate section (a)(2).
`(k) CERTAIN ANALOG DEVICES AND CERTAIN TECHNOLOGICAL MEASURES-
`(1) CERTAIN ANALOG DEVICES-
`(A) Effective 18 months after the date of the enactment of this chapter, no
person shall manufacture, import, offer to the public, provide or otherwise traffic
in any--
`(i) VHS format analog video cassette recorder unless such recorder conforms
to the automatic gain control copy control technology;
`(ii) 8mm format analog video cassette camcorder unless such camcorder conforms
to the automatic gain control technology;
`(iii) Beta format analog video cassette recorder, unless such recorder conforms
to the automatic gain control copy control technology, except that this requirement
shall not apply until there are 1,000 Beta format analog video cassette recorders
sold in the United States in any one calendar year after the date of the enactment
of this chapter;
`(iv) 8mm format analog video cassette recorder that is not an analog video
cassette camcorder, unless such recorder conforms to the automatic gain control
copy control technology, except that this requirement shall not apply until
there are 20,000 such recorders sold in the United States in any one calendar
year after the date of the enactment of this chapter; or
`(v) analog video cassette recorder that records using an NTSC format video
input and that is not otherwise covered under clauses (i) through (iv), unless
such device conforms to the automatic gain control copy control technology.
`(B) Effective on the date of the enactment of this chapter, no person shall
manufacture, import, offer to the public, provide or otherwise traffic in--
`(i) any VHS format analog video cassette recorder or any 8mm format analog
video cassette recorder if the design of the model of such recorder has been
modified after such date of enactment so that a model of recorder that previously
conformed to the automatic gain control copy control technology no longer conforms
to such technology; or
`(ii) any VHS format analog video cassette recorder, or any 8mm format analog
video cassette recorder that is not an 8mm analog video cassette camcorder,
if the design of the model of such recorder has been modified after such date
of enactment so that a model of recorder that previously conformed to the four-line
colorstripe copy control technology no longer conforms to such technology.
Manufacturers that have not previously manufactured or sold a VHS format analog
video cassette recorder, or an 8mm format analog cassette recorder, shall be
required to conform to the four-line colorstripe copy control technology in the
initial model of any such recorder manufactured after the date of the enactment
of this chapter, and thereafter to continue conforming to the four-line colorstripe
copy control technology. For purposes of this subparagraph, an analog video cassette
recorder `conforms to' the four-line colorstripe copy control technology if it
records a signal that, when played back by the playback function of that recorder
in the normal viewing mode, exhibits, on a reference display device, a display
containing distracting visible lines through portions of the viewable picture.
`(2) CERTAIN ENCODING RESTRICTIONS- No person shall apply the automatic gain control
copy control technology or colorstripe copy control technology to prevent or limit
consumer copying except such copying--
`(A) of a single transmission, or specified group of transmissions, of live events
or of audiovisual works for which a member of the public has exercised choice
in selecting the transmissions, including the content of the transmissions or
the time of receipt of such transmissions, or both, and as to which such member
is charged a separate fee for each such transmission or specified group of transmissions;
`(B) from a copy of a transmission of a live event or an audiovisual work if
such transmission is provided by a channel or service where payment is made by
a member of the public for such channel or service in the form of a subscription
fee that entitles the member of the public to receive all of the programming
contained in such channel or service;
`(C) from a physical medium containing one or more prerecorded audiovisual works;
or
`(D) from a copy of a transmission described in subparagraph (A) or from a copy
made from a physical medium described in subparagraph (C).
In the event that a transmission meets both the conditions set forth in subparagraph
(A) and those set forth in subparagraph (B), the transmission shall be treated
as a transmission described in subparagraph (A).
`(3) INAPPLICABILITY- This subsection shall not--
`(A) require any analog video cassette camcorder to conform to the automatic
gain control copy control technology with respect to any video signal received
through a camera lens;
`(B) apply to the manufacture, importation, offer for sale, provision of, or
other trafficking in, any professional analog video cassette recorder; or
`(C) apply to the offer for sale or provision of, or other trafficking in, any
previously owned analog video cassette recorder, if such recorder was legally
manufactured and sold when new and not subsequently modified in violation of
paragraph (1)(B).
`(4) DEFINITIONS- For purposes of this subsection:
`(A) An `analog video cassette recorder' means a device that records, or a device
that includes a function that records, on electromagnetic tape in an analog format
the electronic impulses produced by the video and audio portions of a television
program, motion picture, or other form of audiovisual work.
`(B) An `analog video cassette camcorder' means an analog video cassette recorder
that contains a recording function that operates through a camera lens and through
a video input that may be connected with a television or other video playback
device.
`(C) An analog video cassette recorder `conforms' to the automatic gain control
copy control technology if it--
`(i) detects one or more of the elements of such technology and does not record
the motion picture or transmission protected by such technology; or
`(ii) records a signal that, when played back, exhibits a meaningfully distorted
or degraded display.
`(D) The term `professional analog video cassette recorder' means an analog video
cassette recorder that is designed, manufactured, marketed, and intended for
use by a person who regularly employs such a device for a lawful business or
industrial use, including making, performing, displaying, distributing, or transmitting
copies of motion pictures on a commercial scale.
`(E) The terms `VHS format', `8mm format', `Beta format', `automatic gain control
copy control technology', `colorstripe copy control technology', `four-line version
of the colorstripe copy control technology', and `NTSC' have the meanings that
are commonly understood in the consumer electronics and motion picture industries
as of the date of the enactment of this chapter.
`(5) VIOLATIONS- Any violation of paragraph (1) of this subsection shall be treated
as a violation of subsection (b)(1) of this section. Any violation of paragraph
(2) of this subsection shall be deemed an `act of circumvention' for the purposes
of section 1203(c)(3)(A) of this chapter.
`Sec. 1202. Integrity of copyright management information
`(a) FALSE COPYRIGHT MANAGEMENT INFORMATION- No person shall knowingly and with
the intent to induce, enable, facilitate, or conceal infringement--
`(1) provide copyright management information that is false, or
`(2) distribute or import for distribution copyright management information that
is false.
`(b) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION- No person shall,
without the authority of the copyright owner or the law--
`(1) intentionally remove or alter any copyright management information,
`(2) distribute or import for distribution copyright management information knowing
that the copyright management information has been removed or altered without
authority of the copyright owner or the law, or
`(3) distribute, import for distribution, or publicly perform works, copies of
works, or phonorecords, knowing that copyright management information has been
removed or altered without authority of the copyright owner or the law,
knowing, or, with respect to civil remedies under section 1203, having reasonable
grounds to know, that it will induce, enable, facilitate, or conceal an infringement
of any right under this title.
`(c) DEFINITION- As used in this section, the term `copyright management information'
means any of the following information conveyed in connection with copies or phonorecords
of a work or performances or displays of a work, including in digital form, except
that such term does not include any personally identifying information about a
user of a work or of a copy, phonorecord, performance, or display of a work:
`(1) The title and other information identifying the work, including the information
set forth on a notice of copyright.
`(2) The name of, and other identifying information about, the author of a work.
`(3) The name of, and other identifying information about, the copyright owner
of the work, including the information set forth in a notice of copyright.
`(4) With the exception of public performances of works by radio and television
broadcast stations, the name of, and other identifying information about, a performer
whose performance is fixed in a work other than an audiovisual work.
`(5) With the exception of public performances of works by radio and television
broadcast stations, in the case of an audiovisual work, the name of, and other
identifying information about, a writer, performer, or director who is credited
in the audiovisual work.
`(6) Terms and conditions for use of the work.
`(7) Identifying numbers or symbols referring to such information or links to
such information.
`(8) Such other information as the Register of Copyrights may prescribe by regulation,
except that the Register of Copyrights may not require the provision of any information
concerning the user of a copyrighted work.
`(d) LAW ENFORCEMENT, INTELLIGENCE, AND OTHER GOVERNMENT ACTIVITIES- This section
does not prohibit any lawfully authorized investigative, protective, information
security, or intelligence activity of an officer, agent, or employee of the United
States, a State, or a political subdivision of a State, or a person acting pursuant
to a contract with the United States, a State, or a political subdivision of a
State. For purposes of this subsection, the term `information security' means activities
carried out in order to identify and address the vulnerabilities of a government
computer, computer system, or computer network.
`(e) LIMITATIONS ON LIABILITY-
`(1) ANALOG TRANSMISSIONS- In the case of an analog transmission, a person who
is making transmissions in its capacity as a broadcast station, or as a cable
system, or someone who provides programming to such station or system, shall not
be liable for a violation of subsection (b) if--
`(A) avoiding the activity that constitutes such violation is not technically
feasible or would create an undue financial hardship on such person; and
`(B) such person did not intend, by engaging in such activity, to induce, enable,
facilitate, or conceal infringement of a right under this title.
`(2) DIGITAL TRANSMISSIONS-
`(A) If a digital transmission standard for the placement of copyright management
information for a category of works is set in a voluntary, consensus standard-setting
process involving a representative cross-section of broadcast stations or cable
systems and copyright owners of a category of works that are intended for public
performance by such stations or systems, a person identified in paragraph (1)
shall not be liable for a violation of subsection (b) with respect to the particular
copyright management information addressed by such standard if--
`(i) the placement of such information by someone other than such person is
not in accordance with such standard; and
`(ii) the activity that constitutes such violation is not intended to induce,
enable, facilitate, or conceal infringement of a right under this title.
`(B) Until a digital transmission standard has been set pursuant to subparagraph
(A) with respect to the placement of copyright management information for a category
or works, a person identified in paragraph (1) shall not be liable for a violation
of subsection (b) with respect to such copyright management information, if the
activity that constitutes such violation is not intended to induce, enable, facilitate,
or conceal infringement of a right under this title, and if--
`(i) the transmission of such information by such person would result in a perceptible
visual or aural degradation of the digital signal; or
`(ii) the transmission of such information by such person would conflict with--
`(I) an applicable government regulation relating to transmission of information
in a digital signal;
`(II) an applicable industry-wide standard relating to the transmission of
information in a digital signal that was adopted by a voluntary consensus standards
body prior to the effective date of this chapter; or
`(III) an applicable industry-wide standard relating to the transmission of
information in a digital signal that was adopted in a voluntary, consensus
standards-setting process open to participation by a representative cross-section
of broadcast stations or cable systems and copyright owners of a category of
works that are intended for public performance by such stations or systems.
`(3) DEFINITIONS- As used in this subsection--
`(A) the term `broadcast station' has the meaning given that term in section
3 of the Communications Act of 1934 (47 U.S.C. 153); and
`(B) the term `cable system' has the meaning given that term in section 602 of
the Communications Act of 1934 (47 U.S.C. 522).
`Sec. 1203. Civil remedies
`(a) CIVIL ACTIONS- Any person injured by a violation of section 1201 or 1202 may
bring a civil action in an appropriate United States district court for such violation.
`(b) POWERS OF THE COURT- In an action brought under subsection (a), the court--
`(1) may grant temporary and permanent injunctions on such terms as it deems reasonable
to prevent or restrain a violation, but in no event shall impose a prior restraint
on free speech or the press protected under the 1st amendment to the Constitution;
`(2) at any time while an action is pending, may order the impounding, on such
terms as it deems reasonable, of any device or product that is in the custody
or control of the alleged violator and that the court has reasonable cause to
believe was involved in a violation;
`(3) may award damages under subsection (c);
`(4) in its discretion may allow the recovery of costs by or against any party
other than the United States or an officer thereof;
`(5) in its discretion may award reasonable attorney's fees to the prevailing
party; and
`(6) may, as part of a final judgment or decree finding a violation, order the
remedial modification or the destruction of any device or product involved in
the violation that is in the custody or control of the violator or has been impounded
under paragraph (2).
`(1) IN GENERAL- Except as otherwise provided in this title, a person committing
a violation of section 1201 or 1202 is liable for either--
`(A) the actual damages and any additional profits of the violator, as provided
in paragraph (2), or
`(B) statutory damages, as provided in paragraph (3).
`(2) ACTUAL DAMAGES- The court shall award to the complaining party the actual
damages suffered by the party as a result of the violation, and any profits of
the violator that are attributable to the violation and are not taken into account
in computing the actual damages, if the complaining party elects such damages
at any time before final judgment is entered.
`(3) STATUTORY DAMAGES- (A) At any time before final judgment is entered, a complaining
party may elect to recover an award of statutory damages for each violation of
section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention,
device, product, component, offer, or performance of service, as the court considers
just.
`(B) At any time before final judgment is entered, a complaining party may elect
to recover an award of statutory damages for each violation of section 1202 in
the sum of not less than $2,500 or more than $25,000.
`(4) REPEATED VIOLATIONS- In any case in which the injured party sustains the
burden of proving, and the court finds, that a person has violated section 1201
or 1202 within 3 years after a final judgment was entered against the person for
another such violation, the court may increase the award of damages up to triple
the amount that would otherwise be awarded, as the court considers just.
`(5) Innocent violations-
`(A) IN GENERAL- The court in its discretion may reduce or remit the total award
of damages in any case in which the violator sustains the burden of proving,
and the court finds, that the violator was not aware and had no reason to believe
that its acts constituted a violation.
`(B) NONPROFIT LIBRARY, ARCHIVES, OR EDUCATIONAL INSTITUTIONS- In the case of
a nonprofit library, archives, or educational institution, the court shall remit
damages in any case in which the library, archives, or educational institution
sustains the burden of proving, and the court finds, that the library, archives,
or educational institution was not aware and had no reason to believe that its
acts constituted a violation.
`Sec. 1204. Criminal offenses and penalties
`(a) IN GENERAL- Any person who violates section 1201 or 1202 willfully and for
purposes of commercial advantage or private financial gain--
`(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years,
or both, for the first offense; and
`(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10
years, or both, for any subsequent offense.
`(b) LIMITATION FOR NONPROFIT LIBRARY, ARCHIVES, OR EDUCATIONAL INSTITUTION- Subsection
(a) shall not apply to a nonprofit library, archives, or educational institution.
`(c) STATUTE OF LIMITATIONS- No criminal proceeding shall be brought under this
section unless such proceeding is commenced within 5 years after the cause of action
arose.
`Sec. 1205. Savings clause
`Nothing in this chapter abrogates, diminishes, or weakens the provisions of, nor
provides any defense or element of mitigation in a criminal prosecution or civil
action under, any Federal or State law that prevents the violation of the privacy
of an individual in connection with the individual's use of the Internet.'.
(b) CONFORMING AMENDMENT- The table of chapters for title 17, United States Code,
is amended by adding after the item relating to chapter 11 the following:
1201'.
SEC. 104. EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON ELECTRONIC
COMMERCE AND TECHNOLOGICAL DEVELOPMENT.
(a) EVALUATION BY THE REGISTER OF COPYRIGHTS AND THE ASSISTANT SECRETARY FOR COMMUNICATIONS
AND INFORMATION- The Register of Copyrights and the Assistant Secretary for Communications
and Information of the Department of Commerce shall jointly evaluate--
(1) the effects of the amendments made by this title and the development of electronic
commerce and associated technology on the operation of sections 109 and 117 of
title 17, United States Code; and
(2) the relationship between existing and emergent technology and the operation
of sections 109 and 117 of title 17, United States Code.
(b) REPORT TO CONGRESS- The Register of Copyrights and the Assistant Secretary
for Communications and Information of the Department of Commerce shall, not later
than 24 months after the date of the enactment of this Act, submit to the Congress
a joint report on the evaluation conducted under subsection (a), including any
legislative recommendations the Register and the Assistant Secretary may have.
SEC. 105. EFFECTIVE DATE.
(a) IN GENERAL- Except as otherwise provided in this title, this title and the
amendments made by this title shall take effect on the date of the enactment of
this Act.
(b) AMENDMENTS RELATING TO CERTAIN INTERNATIONAL AGREEMENTS- (1) The following
shall take effect upon the entry into force of the WIPO Copyright Treaty with respect
to the United States:
(A) Paragraph (5) of the definition of `international agreement' contained in
section 101 of title 17, United States Code, as amended by section 102(a)(4) of
this Act.
(B) The amendment made by section 102(a)(6) of this Act.
(C) Subparagraph (C) of section 104A(h)(1) of title 17, United States Code, as
amended by section 102(c)(1) of this Act.
(D) Subparagraph (C) of section 104A(h)(3) of title 17, United States Code, as
amended by section 102(c)(2) of this Act.
(2) The following shall take effect upon the entry into force of the WIPO Performances
and Phonograms Treaty with respect to the United States:
(A) Paragraph (6) of the definition of `international agreement' contained in
section 101 of title 17, United States Code, as amended by section 102(a)(4) of
this Act.
(B) The amendment made by section 102(a)(7) of this Act.
(C) The amendment made by section 102(b)(2) of this Act.
(D) Subparagraph (D) of section 104A(h)(1) of title 17, United States Code, as
amended by section 102(c)(1) of this Act.
(E) Subparagraph (D) of section 104A(h)(3) of title 17, United States Code, as
amended by section 102(c)(2) of this Act.
(F) The amendments made by section 102(c)(3) of this Act.
TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
SEC. 201. SHORT TITLE.
This title may be cited as the `Online Copyright Infringement Liability Limitation
Act'.
SEC. 202. LIMITATIONS ON LIABILITY FOR COPYRIGHT INFRINGEMENT.
(a) IN GENERAL- Chapter 5 of title 17, United States Code, is amended by adding
after section 511 the following new section:
`Sec. 512. Limitations on liability relating to material online
`(a) TRANSITORY DIGITAL NETWORK COMMUNICATIONS- A service provider shall not be
liable for monetary relief, or, except as provided in subsection (j), for injunctive
or other equitable relief, for infringement of copyright by reason of the provider's
transmitting, routing, or providing connections for, material through a system
or network controlled or operated by or for the service provider, or by reason
of the intermediate and transient storage of that material in the course of such
transmitting, routing, or providing connections, if--
`(1) the transmission of the material was initiated by or at the direction of
a person other than the service provider;
`(2) the transmission, routing, provision of connections, or storage is carried
out through an automatic technical process without selection of the material by
the service provider;
`(3) the service provider does not select the recipients of the material except
as an automatic response to the request of another person;
`(4) no copy of the material made by the service provider in the course of such
intermediate or transient storage is maintained on the system or network in a
manner ordinarily accessible to anyone other than anticipated recipients, and
no such copy is maintained on the system or network in a manner ordinarily accessible
to such anticipated recipients for a longer period than is reasonably necessary
for the transmission, routing, or provision of connections; and
`(5) the material is transmitted through the system or network without modification
of its content.
`(1) LIMITATION ON LIABILITY- A service provider shall not be liable for monetary
relief, or, except as provided in subsection (j), for injunctive or other equitable
relief, for infringement of copyright by reason of the intermediate and temporary
storage of material on a system or network controlled or operated by or for the
service provider in a case in which--
`(A) the material is made available online by a person other than the service
provider;
`(B) the material is transmitted from the person described in subparagraph (A)
through the system or network to a person other than the person described in
subparagraph (A) at the direction of that other person; and
`(C) the storage is carried out through an automatic technical process for the
purpose of making the material available to users of the system or network who,
after the material is transmitted as described in subparagraph (B), request access
to the material from the person described in subparagraph (A),
if the conditions set forth in paragraph (2) are met.
(2) CONDITIONS- The conditions referred to in paragraph (1) are that--
`(A) the material described in paragraph (1) is transmitted to the subsequent
users described in paragraph (1)(C) without modification to its content from
the manner in which the material was transmitted from the person described in
paragraph (1)(A);
`(B) the service provider described in paragraph (1) complies with rules concerning
the refreshing, reloading, or other updating of the material when specified by
the person making the material available online in accordance with a generally
accepted industry standard data communications protocol for the system or network
through which that person makes the material available, except that this subparagraph
applies only if those rules are not used by the person described in paragraph
(1)(A) to prevent or unreasonably impair the intermediate storage to which this
subsection applies;
`(C) the service provider does not interfere with the ability of technology associated
with the material to return to the person described in paragraph (1)(A) the information
that would have been available to that person if the material had been obtained
by the subsequent users described in paragraph (1)(C) directly from that person,
except that this subparagraph applies only if that technology--
`(i) does not significantly interfere with the performance of the provider's
system or network or with the intermediate storage of the material;
`(ii) is consistent with generally accepted industry standard communications
protocols; and
`(iii) does not extract information from the provider's system or network other
than the information that would have been available to the person described
in paragraph (1)(A) if the subsequent users had gained access to the material
directly from that person;
`(D) if the person described in paragraph (1)(A) has in effect a condition that
a person must meet prior to having access to the material, such as a condition
based on payment of a fee or provision of a password or other information, the
service provider permits access to the stored material in significant part only
to users of its system or network that have met those conditions and only in
accordance with those conditions; and
`(E) if the person described in paragraph (1)(A) makes that material available
online without the authorization of the copyright owner of the material, the
service provider responds expeditiously to remove, or disable access to, the
material that is claimed to be infringing upon notification of claimed infringement
as described in subsection (c)(3), except that this subparagraph applies only
if--
`(i) the material has previously been removed from the originating site or access
to it has been disabled, or a court has ordered that the material be removed
from the originating site or that access to the material on the originating
site be disabled; and
`(ii) the party giving the notification includes in the notification a statement
confirming that the material has been removed from the originating site or access
to it has been disabled or that a court has ordered that the material be removed
from the originating site or that access to the material on the originating
site be disabled.
`(c) INFORMATION RESIDING ON SYSTEMS OR NETWORKS AT DIRECTION OF USERS-
`(1) IN GENERAL- A service provider shall not be liable for monetary relief, or,
except as provided in subsection (j), for injunctive or other equitable relief,
for infringement of copyright by reason of the storage at the direction of a user
of material that resides on a system or network controlled or operated by or for
the service provider, if the service provider--
`(A)(i) does not have actual knowledge that the material or an activity using
the material on the system or network is infringing;
`(ii) in the absence of such actual knowledge, is not aware of facts or circumstances
from which infringing activity is apparent; or
`(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove,
or disable access to, the material;
`(B) does not receive a financial benefit directly attributable to the infringing
activity, in a case in which the service provider has the right and ability to
control such activity; and
`(C) upon notification of claimed infringement as described in paragraph (3),
responds expeditiously to remove, or disable access to, the material that is
claimed to be infringing or to be the subject of infringing activity.
`(2) DESIGNATED AGENT- The limitations on liability established in this subsection
apply to a service provider only if the service provider has designated an agent
to receive notifications of claimed infringement described in paragraph (3), by
making available through its service, including on its website in a location accessible
to the public, and by providing to the Copyright Office, substantially the following
information:
`(A) the name, address, phone number, and electronic mail address of the agent.
`(B) other contact information which the Register of Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory of agents available
to the public for inspection, including through the Internet, in both electronic
and hard copy formats, and may require payment of a fee by service providers to
cover the costs of maintaining the directory.
`(3) ELEMENTS OF NOTIFICATION-
`(A) To be effective under this subsection, a notification of claimed infringement
must be a written communication provided to the designated agent of a service
provider that includes substantially the following:
`(i) A physical or electronic signature of a person authorized to act on behalf
of the owner of an exclusive right that is allegedly infringed.
`(ii) Identification of the copyrighted work claimed to have been infringed,
or, if multiple copyrighted works at a single online site are covered by a single
notification, a representative list of such works at that site.
`(iii) Identification of the material that is claimed to be infringing or to
be the subject of infringing activity and that is to be removed or access to
which is to be disabled, and information reasonably sufficient to permit the
service provider to locate the material.
`(iv) Information reasonably sufficient to permit the service provider to contact
the complaining party, such as an address, telephone number, and, if available,
an electronic mail address at which the complaining party may be contacted.
`(v) A statement that the complaining party has a good faith belief that use
of the material in the manner complained of is not authorized by the copyright
owner, its agent, or the law.
`(vi) A statement that the information in the notification is accurate, and
under penalty of perjury, that the complaining party is authorized to act on
behalf of the owner of an exclusive right that is allegedly infringed.
`(B)(i) Subject to clause (ii), a notification from a copyright owner or from
a person authorized to act on behalf of the copyright owner that fails to comply
substantially with the provisions of subparagraph (A) shall not be considered
under paragraph (1)(A) in determining whether a service provider has actual knowledge
or is aware of facts or circumstances from which infringing activity is apparent.
`(ii) In a case in which the notification that is provided to the service provider's
designated agent fails to comply substantially with all the provisions of subparagraph
(A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph
(A), clause (i) of this subparagraph applies only if the service provider promptly
attempts to contact the person making the notification or takes other reasonable
steps to assist in the receipt of notification that substantially complies with
all the provisions of subparagraph (A).
`(d) INFORMATION LOCATION TOOLS- A service provider shall not be liable for monetary
relief, or, except as provided in subsection (j), for injunctive or other equitable
relief, for infringement of copyright by reason of the provider referring or linking
users to an online location containing infringing material or infringing activity,
by using information location tools, including a directory, index, reference, pointer,
or hypertext link, if the service provider--
`(1)(A) does not have actual knowledge that the material or activity is infringing;
`(B) in the absence of such actual knowledge, is not aware of facts or circumstances
from which infringing activity is apparent; or
`(C) upon obtaining such knowledge or awareness, acts expeditiously to remove,
or disable access to, the material;
`(2) does not receive a financial benefit directly attributable to the infringing
activity, in a case in which the service provider has the right and ability to
control such activity; and
`(3) upon notification of claimed infringement as described in subsection (c)(3),
responds expeditiously to remove, or disable access to, the material that is claimed
to be infringing or to be the subject of infringing activity, except that, for
purposes of this paragraph, the information described in subsection (c)(3)(A)(iii)
shall be identification of the reference or link, to material or activity claimed
to be infringing, that is to be removed or access to which is to be disabled,
and information reasonably sufficient to permit the service provider to locate
that reference or link.
`(e) LIMITATION ON LIABILITY OF NONPROFIT EDUCATIONAL INSTITUTIONS- (1) When a
public or other nonprofit institution of higher education is a service provider,
and when a faculty member or graduate student who is an employee of such institution
is performing a teaching or research function, for the purposes of subsections
(a) and (b) such faculty member or graduate student shall be considered to be a
person other than the institution, and for the purposes of subsections (c) and
(d) such faculty member's or graduate student's knowledge or awareness of his or
her infringing activities shall not be attributed to the institution, if--
`(A) such faculty member's or graduate student's infringing activities do not
involve the provision of online access to instructional materials that are or
were required or recommended, within the preceding 3-year period, for a course
taught at the institution by such faculty member or graduate student;
`(B) the institution has not, within the preceding 3-year period, received more
than two notifications described in subsection (c)(3) of claimed infringement
by such faculty member or graduate student, and such notifications of claimed
infringement were not actionable under subsection (f); and
`(C) the institution provides to all users of its system or network informational
materials that accurately describe, and promote compliance with, the laws of the
United States relating to copyright.
`(2) INJUNCTIONS- For the purposes of this subsection, the limitations on injunctive
relief contained in subsections (j)(2) and (j)(3), but not those in (j)(1), shall
apply.
`(f) MISREPRESENTATIONS- Any person who knowingly materially misrepresents under
this section--
`(1) that material or activity is infringing, or
`(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys' fees, incurred
by the alleged infringer, by any copyright owner or copyright owner's authorized
licensee, or by a service provider, who is injured by such misrepresentation, as
the result of the service provider relying upon such misrepresentation in removing
or disabling access to the material or activity claimed to be infringing, or in
replacing the removed material or ceasing to disable access to it.
`(g) REPLACEMENT OF REMOVED OR DISABLED MATERIAL AND LIMITATION ON OTHER LIABILITY-
`(1) NO LIABILITY FOR TAKING DOWN GENERALLY- Subject to paragraph (2), a service
provider shall not be liable to any person for any claim based on the service
provider's good faith disabling of access to, or removal of, material or activity
claimed to be infringing or based on facts or circumstances from which infringing
activity is apparent, regardless of whether the material or activity is ultimately
determined to be infringing.
`(2) EXCEPTION- Paragraph (1) shall not apply with respect to material residing
at the direction of a subscriber of the service provider on a system or network
controlled or operated by or for the service provider that is removed, or to which
access is disabled by the service provider, pursuant to a notice provided under
subsection (c)(1)(C), unless the service provider--
`(A) takes reasonable steps promptly to notify the subscriber that it has removed
or disabled access to the material;
`(B) upon receipt of a counter notification described in paragraph (3), promptly
provides the person who provided the notification under subsection (c)(1)(C)
with a copy of the counter notification, and informs that person that it will
replace the removed material or cease disabling access to it in 10 business days;
and
`(C) replaces the removed material and ceases disabling access to it not less
than 10, nor more than 14, business days following receipt of the counter notice,
unless its designated agent first receives notice from the person who submitted
the notification under subsection (c)(1)(C) that such person has filed an action
seeking a court order to restrain the subscriber from engaging in infringing
activity relating to the material on the service provider's system or network.
`(3) CONTENTS OF COUNTER NOTIFICATION- To be effective under this subsection,
a counter notification must be a written communication provided to the service
provider's designated agent that includes substantially the following:
`(A) A physical or electronic signature of the subscriber.
`(B) Identification of the material that has been removed or to which access
has been disabled and the location at which the material appeared before it was
removed or access to it was disabled.
`(C) A statement under penalty of perjury that the subscriber has a good faith
belief that the material was removed or disabled as a result of mistake or misidentification
of the material to be removed or disabled.
`(D) The subscriber's name, address, and telephone number, and a statement that
the subscriber consents to the jurisdiction of Federal District Court for the
judicial district in which the address is located, or if the subscriber's address
is outside of the United States, for any judicial district in which the service
provider may be found, and that the subscriber will accept service of process
from the person who provided notification under subsection (c)(1)(C) or an agent
of such person.
`(4) LIMITATION ON OTHER LIABILITY- A service provider's compliance with paragraph
(2) shall not subject the service provider to liability for copyright infringement
with respect to the material identified in the notice provided under subsection
(c)(1)(C).
`(h) SUBPOENA TO IDENTIFY INFRINGER-
`(1) REQUEST- A copyright owner or a person authorized to act on the owner's behalf
may request the clerk of any United States district court to issue a subpoena
to a service provider for identification of an alleged infringer in accordance
with this subsection.
`(2) CONTENTS OF REQUEST- The request may be made by filing with the clerk--
`(A) a copy of a notification described in subsection (c)(3)(A);
`(B) a proposed subpoena; and
`(C) a sworn declaration to the effect that the purpose for which the subpoena
is sought is to obtain the identity of an alleged infringer and that such information
will only be used for the purpose of protecting rights under this title.
`(3) CONTENTS OF SUBPOENA- The subpoena shall authorize and order the service
provider receiving the notification and the subpoena to expeditiously disclose
to the copyright owner or person authorized by the copyright owner information
sufficient to identify the alleged infringer of the material described in the
notification to the extent such information is available to the service provider.
`(4) BASIS FOR GRANTING SUBPOENA- If the notification filed satisfies the provisions
of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying
declaration is properly executed, the clerk shall expeditiously issue and sign
the proposed subpoena and return it to the requester for delivery to the service
provider.
`(5) ACTIONS OF SERVICE PROVIDER RECEIVING SUBPOENA- Upon receipt of the issued
subpoena, either accompanying or subsequent to the receipt of a notification described
in subsection (c)(3)(A), the service provider shall expeditiously disclose to
the copyright owner or person authorized by the copyright owner the information
required by the subpoena, notwithstanding any other provision of law and regardless
of whether the service provider responds to the notification.
`(6) RULES APPLICABLE TO SUBPOENA- Unless otherwise provided by this section or
by applicable rules of the court, the procedure for issuance and delivery of the
subpoena, and the remedies for noncompliance with the subpoena, shall be governed
to the greatest extent practicable by those provisions of the Federal Rules of
Civil Procedure governing the issuance, service, and enforcement of a subpoena
duces tecum.
`(i) CONDITIONS FOR ELIGIBILITY-
`(1) ACCOMMODATION OF TECHNOLOGY- The limitations on liability established by
this section shall apply to a service provider only if the service provider--
`(A) has adopted and reasonably implemented, and informs subscribers and account
holders of the service provider's system or network of, a policy that provides
for the termination in appropriate circumstances of subscribers and account holders
of the service provider's system or network who are repeat infringers; and
`(B) accommodates and does not interfere with standard technical measures.
`(2) DEFINITION- As used in this subsection, the term `standard technical measures'
means technical measures that are used by copyright owners to identify or protect
copyrighted works and--
`(A) have been developed pursuant to a broad consensus of copyright owners and
service providers in an open, fair, voluntary, multi-industry standards process;
`(B) are available to any person on reasonable and nondiscriminatory terms; and
`(C) do not impose substantial costs on service providers or substantial burdens
on their systems or networks.
`(j) INJUNCTIONS- The following rules shall apply in the case of any application
for an injunction under section 502 against a service provider that is not subject
to monetary remedies under this section:
`(1) SCOPE OF RELIEF- (A) With respect to conduct other than that which qualifies
for the limitation on remedies set forth in subsection (a), the court may grant
injunctive relief with respect to a service provider only in one or more of the
following forms:
`(i) An order restraining the service provider from providing access to infringing
material or activity residing at a particular online site on the provider's system
or network.
`(ii) An order restraining the service provider from providing access to a subscriber
or account holder of the service provider's system or network who is engaging
in infringing activity and is identified in the order, by terminating the accounts
of the subscriber or account holder that are specified in the order.
`(iii) Such other injunctive relief as the court may consider necessary to prevent
or restrain infringement of copyrighted material specified in the order of the
court at a particular online location, if such relief is the least burdensome
to the service provider among the forms of relief comparably effective for that
purpose.
`(B) If the service provider qualifies for the limitation on remedies described
in subsection (a), the court may only grant injunctive relief in one or both of
the following forms:
`(i) An order restraining the service provider from providing access to a subscriber
or account holder of the service provider's system or network who is using the
provider's service to engage in infringing activity and is identified in the
order, by terminating the accounts of the subscriber or account holder that are
specified in the order.
`(ii) An order restraining the service provider from providing access, by taking
reasonable steps specified in the order to block access, to a specific, identified,
online location outside the United States.
`(2) CONSIDERATIONS- The court, in considering the relevant criteria for injunctive
relief under applicable law, shall consider--
`(A) whether such an injunction, either alone or in combination with other such
injunctions issued against the same service provider under this subsection, would
significantly burden either the provider or the operation of the provider's system
or network;
`(B) the magnitude of the harm likely to be suffered by the copyright owner in
the digital network environment if steps are not taken to prevent or restrain
the infringement;
`(C) whether implementation of such an injunction would be technically feasible
and effective, and would not interfere with access to noninfringing material
at other online locations; and
`(D) whether other less burdensome and comparably effective means of preventing
or restraining access to the infringing material are available.
`(3) NOTICE AND EX PARTE ORDERS- Injunctive relief under this subsection shall
be available only after notice to the service provider and an opportunity for
the service provider to appear are provided, except for orders ensuring the preservation
of evidence or other orders having no material adverse effect on the operation
of the service provider's communications network.
`(1) SERVICE PROVIDER- (A) As used in subsection (a), the term `service provider'
means an entity offering the transmission, routing, or providing of connections
for digital online communications, between or among points specified by a user,
of material of the user's choosing, without modification to the content of the
material as sent or received.
`(B) As used in this section, other than subsection (a), the term `service provider'
means a provider of online services or network access, or the operator of facilities
therefor, and includes an entity described in subparagraph (A).
`(2) MONETARY RELIEF- As used in this section, the term `monetary relief' means
damages, costs, attorneys' fees, and any other form of monetary payment.
`(l) OTHER DEFENSES NOT AFFECTED- The failure of a service provider's conduct to
qualify for limitation of liability under this section shall not bear adversely
upon the consideration of a defense by the service provider that the service provider's
conduct is not infringing under this title or any other defense.
`(m) PROTECTION OF PRIVACY- Nothing in this section shall be construed to condition
the applicability of subsections (a) through (d) on--
`(1) a service provider monitoring its service or affirmatively seeking facts
indicating infringing activity, except to the extent consistent with a standard
technical measure complying with the provisions of subsection (i); or
`(2) a service provider gaining access to, removing, or disabling access to material
in cases in which such conduct is prohibited by law.
`(n) CONSTRUCTION- Subsections (a), (b), (c), and (d) describe separate and distinct
functions for purposes of applying this section. Whether a service provider qualifies
for the limitation on liability in any one of those subsections shall be based
solely on the criteria in that subsection, and shall not affect a determination
of whether that service provider qualifies for the limitations on liability under
any other such subsection.'.
(b) CONFORMING AMENDMENT- The table of sections for chapter 5 of title 17, United
States Code, is amended by adding at the end the following:
`512. Limitations on liability relating to material online.'.
SEC. 203. EFFECTIVE DATE.
This title and the amendments made by this title shall take effect on the date
of the enactment of this Act.
TITLE III--COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
SEC. 301. SHORT TITLE.
This title may be cited as the `Computer Maintenance Competition Assurance Act'.
SEC. 302. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER PROGRAMS.
Section 117 of title 17, United States Code, is amended--
(1) by striking `Notwithstanding' and inserting the following:
`(a) MAKING OF ADDITIONAL COPY OR ADAPTATION BY OWNER OF COPY- Notwithstanding';
(2) by striking `Any exact' and inserting the following:
`(b) LEASE, SALE, OR OTHER TRANSFER OF ADDITIONAL COPY OR ADAPTATION- Any exact';
and
(3) by adding at the end the following:
`(c) MACHINE MAINTENANCE OR REPAIR- Notwithstanding the provisions of section 106,
it is not an infringement for the owner or lessee of a machine to make or authorize
the making of a copy of a computer program if such copy is made solely by virtue
of the activation of a machine that lawfully contains an authorized copy of the
computer program, for purposes only of maintenance or repair of that machine, if--
`(1) such new copy is used in no other manner and is destroyed immediately after
the maintenance or repair is completed; and
`(2) with respect to any computer program or part thereof that is not necessary
for that machine to be activated, such program or part thereof is not accessed
or used other than to make such new copy by virtue of the activation of the machine.
`(d) DEFINITIONS- For purposes of this section--
`(1) the `maintenance' of a machine is the servicing of the machine in order to
make it work in accordance with its original specifications and any changes to
those specifications authorized for that machine; and
`(2) the `repair' of a machine is the restoring of the machine to the state of
working in accordance with its original specifications and any changes to those
specifications authorized for that machine.'.
TITLE IV--MISCELLANEOUS PROVISIONS
SEC. 401. PROVISIONS RELATING TO THE COMMISSIONER OF PATENTS AND TRADEMARKS
AND THE REGISTER OF COPYRIGHTS
(a) COMPENSATION- (1) Section 3(d) of title 35, United States Code, is amended
by striking `prescribed by law for Assistant Secretaries of Commerce' and inserting
`in effect for level III of the Executive Schedule under section 5314 of title
5, United States Code'.
(2) Section 701(e) of title 17, United States Code, is amended--
(A) by striking `IV' and inserting `III'; and
(B) by striking `5315' and inserting `5314'.
(3) Section 5314 of title 5, United States Code, is amended by adding at the end
the following:
`Assistant Secretary of Commerce and Commissioner of Patents and Trademarks.
`Register of Copyrights.'.
(b) CLARIFICATION OF AUTHORITY OF THE COPYRIGHT OFFICE- Section 701 of title 17,
United States Code, is amended--
(1) by redesignating subsections (b) through (e) as subsections (c) through (f),
respectively; and
(2) by inserting after subsection (a) the following:
`(b) In addition to the functions and duties set out elsewhere in this chapter,
the Register of Copyrights shall perform the following functions:
`(1) Advise Congress on national and international issues relating to copyright,
other matters arising under this title, and related matters.
`(2) Provide information and assistance to Federal departments and agencies and
the Judiciary on national and international issues relating to copyright, other
matters arising under this title, and related matters.
`(3) Participate in meetings of international intergovernmental organizations
and meetings with foreign government officials relating to copyright, other matters
arising under this title, and related matters, including as a member of United
States delegations as authorized by the appropriate Executive branch authority.
`(4) Conduct studies and programs regarding copyright, other matters arising under
this title, and related matters, the administration of the Copyright Office, or
any function vested in the Copyright Office by law, including educational programs
conducted cooperatively with foreign intellectual property offices and international
intergovernmental organizations.
`(5) Perform such other functions as Congress may direct, or as may be appropriate
in furtherance of the functions and duties specifically set forth in this title.'.
SEC. 402. EPHEMERAL RECORDINGS.
Section 112(a) of title 17, United States Code, is amended--
(1) by redesignating paragraphs (1), (2), and (3) as subparagraphs (A), (B), and
(C), respectively;
(2) by inserting `(1)' after `(a)';
(3) by inserting after `under a license' the following: `, including a statutory
license under section 114(f),';
(4) by inserting after `114(a),' the following: `or for a transmitting organization
that is a broadcast radio or television station licensed as such by the Federal
Communications Commission and that makes a broadcast transmission of a performance
of a sound recording in a digital format on a nonsubscription basis,'; and
(5) by adding at the end the following:
`(2) In a case in which a transmitting organization entitled to make a copy or
phonorecord under paragraph (1) in connection with the transmission to the public
of a performance or display of a work is prevented from making such copy or phonorecord
by reason of the application by the copyright owner of technical measures that
prevent the reproduction of the work, the copyright owner shall make available
to the transmitting organization the necessary means for permitting the making
of such copy or phonorecord as permitted under that paragraph, if it is technologically
feasible and economically reasonable for the copyright owner to do so. If the copyright
owner fails to do so in a timely manner in light of the transmitting organization's
reasonable business requirements, the transmitting organization shall not be liable
for a violation of section 1201(a)(1) of this title for engaging in such activities
as are necessary to make such copies or phonorecords as permitted under paragraph
(1) of this subsection.'.
SEC. 403. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION.
(a) RECOMMENDATIONS BY REGISTER OF COPYRIGHTS- Not later than 6 months after the
date of the enactment of this Act, the Register of Copyrights, after consultation
with representatives of copyright owners, nonprofit educational institutions, and
nonprofit libraries and archives, shall submit to the Congress recommendations
on how to promote distance education through digital technologies, including interactive
digital networks, while maintaining an appropriate balance between the rights of
copyright owners and the needs of users of copyrighted works. Such recommendations
shall include any legislation the Register of Copyrights considers appropriate
to achieve the objective described in the preceding sentence.
(b) FACTORS- In formulating recommendations under subsection (a), the Register
of Copyrights shall consider--
(1) the need for an exemption from exclusive rights of copyright owners for distance
education through digital networks;
(2) the categories of works to be included under any distance education exemption;
(3) the extent of appropriate quantitative limitations on the portions of works
that may be used under any distance education exemption;
(4) the parties who should be entitled to the benefits of any distance education
exemption;
(5) the parties who should be designated as eligible recipients of distance education
materials under any distance education exemption;
(6) whether and what types of technological measures can or should be employed
to safeguard against unauthorized access to, and use or retention of, copyrighted
materials as a condition of eligibility for any distance education exemption,
including, in light of developing technological capabilities, the exemption set
out in section 110(2) of title 17, United States Code;
(7) the extent to which the availability of licenses for the use of copyrighted
works in distance education through interactive digital networks should be considered
in assessing eligibility for any distance education exemption; and
(8) such other issues relating to distance education through interactive digital
networks that the Register considers appropriate.
SEC. 404. EXEMPTION FOR LIBRARIES AND ARCHIVES.
Section 108 of title 17, United States Code, is amended--
(A) by striking `Notwithstanding' and inserting `Except as otherwise provided
in this title and notwithstanding';
(B) by inserting after `no more than one copy or phonorecord of a work' the following:
`, except as provided in subsections (b) and (c)'; and
(C) in paragraph (3) by inserting after `copyright' the following: `that appears
on the copy or phonorecord that is reproduced under the provisions of this section,
or includes a legend stating that the work may be protected by copyright if no
such notice can be found on the copy or phonorecord that is reproduced under
the provisions of this section';
(A) by striking `a copy or phonorecord' and inserting `three copies or phonorecords';
(B) by striking `in facsimile form'; and
(C) by striking `if the copy or phonorecord reproduced is currently in the collections
of the library or archives.' and inserting `if--
`(1) the copy or phonorecord reproduced is currently in the collections of the
library or archives; and
`(2) any such copy or phonorecord that is reproduced in digital format is not
otherwise distributed in that format and is not made available to the public in
that format outside the premises of the library or archives.'; and
(A) by striking `a copy or phonorecord' and inserting `three copies or phonorecords';
(B) by striking `in facsimile form';
(C) by inserting `or if the existing format in which the work is stored has become
obsolete,' after `stolen,';
(D) by striking `if the library or archives has, after a reasonable effort, determined
that an unused replacement cannot be obtained at a fair price.' and inserting
`if--
`(1) the library or archives has, after a reasonable effort, determined that an
unused replacement cannot be obtained at a fair price; and
`(2) any such copy or phonorecord that is reproduced in digital format is not
made available to the public in that format outside the premises of the library
or archives in lawful possession of such copy.'; and
(E) by adding at the end the following:
`For purposes of this subsection, a format shall be considered obsolete if the
machine or device necessary to render perceptible a work stored in that format
is no longer manufactured or is no longer reasonably available in the commercial
marketplace.'.
SEC. 405. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS; EPHEMERAL RECORDINGS.
(a) SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS- Section 114 of title 17, United
States Code, is amended as follows:
(1) Subsection (d) is amended--
(A) in paragraph (1) by striking subparagraph (A) and inserting the following:
`(A) a nonsubscription broadcast transmission;'; and
(B) by amending paragraph (2) to read as follows:
`(2) STATUTORY LICENSING OF CERTAIN TRANSMISSIONS- The performance of a sound
recording publicly by means of a subscription digital audio transmission not exempt
under paragraph (1), an eligible nonsubscription transmission, or a transmission
not exempt under paragraph (1) that is made by a preexisting satellite digital
audio radio service shall be subject to statutory licensing, in accordance with
subsection (f) if--
`(A)(i) the transmission is not part of an interactive service;
`(ii) except in the case of a transmission to a business establishment, the transmitting
entity does not automatically and intentionally cause any device receiving the
transmission to switch from one program channel to another; and
`(iii) except as provided in section 1002(e), the transmission of the sound recording
is accompanied, if technically feasible, by the information encoded in that sound
recording, if any, by or under the authority of the copyright owner of that sound
recording, that identifies the title of the sound recording, the featured recording
artist who performs on the sound recording, and related information, including
information concerning the underlying musical work and its writer;
`(B) in the case of a subscription transmission not exempt under paragraph (1)
that is made by a preexisting subscription service in the same transmission medium
used by such service on July 31, 1998, or in the case of a transmission not exempt
under paragraph (1) that is made by a preexisting satellite digital audio radio
service--
`(i) the transmission does not exceed the sound recording performance complement;
and
`(ii) the transmitting entity does not cause to be published by means of an
advance program schedule or prior announcement the titles of the specific sound
recordings or phonorecords embodying such sound recordings to be transmitted;
and
`(C) in the case of an eligible nonsubscription transmission or a subscription
transmission not exempt under paragraph (1) that is made by a new subscription
service or by a preexisting subscription service other than in the same transmission
medium used by such service on July 31, 1998--
`(i) the transmission does not exceed the sound recording performance complement,
except that this requirement shall not apply in the case of a retransmission
of a broadcast transmission if the retransmission is made by a transmitting
entity that does not have the right or ability to control the programming of
the broadcast station making the broadcast transmission, unless--
`(I) the broadcast station makes broadcast transmissions--
`(aa) in digital format that regularly exceed the sound recording performance
complement; or
`(bb) in analog format, a substantial portion of which, on a weekly basis,
exceed the sound recording performance complement; and
`(II) the sound recording copyright owner or its representative has notified
the transmitting entity in writing that broadcast transmissions of the copyright
owner's sound recordings exceed the sound recording performance complement
as provided in this clause;
`(ii) the transmitting entity does not cause to be published, or induce or facilitate
the publication, by means of an advance program schedule or prior announcement,
the titles of the specific sound recordings to be transmitted, the phonorecords
embodying such sound recordings, or, other than for illustrative purposes, the
names of the featured recording artists, except that this clause does not disqualify
a transmitting entity that makes a prior announcement that a particular artist
will be featured within an unspecified future time period, and in the case of
a retransmission of a broadcast transmission by a transmitting entity that does
not have the right or ability to control the programming of the broadcast transmission,
the requirement of this clause shall not apply to a prior oral announcement
by the broadcast station, or to an advance program schedule published, induced,
or facilitated by the broadcast station, if the transmitting entity does not
have actual knowledge and has not received written notice from the copyright
owner or its representative that the broadcast station publishes or induces
or facilitates the publication of such advance program schedule, or if such
advance program schedule is a schedule of classical music programming published
by the broadcast station in the same manner as published by that broadcast station
on or before September 30, 1998;
`(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';
(i) in the first sentence--
(I) by striking `(1) No' and inserting `(1)(A) No';
(II) by striking `the activities' and inserting `subscription transmissions
by preexisting subscription services and transmissions by preexisting satellite
digital audio radio services'; and
(III) by striking `2000' and inserting `2001'; and
(ii) by amending the third sentence to read as follows: `Any copyright owners
of sound recordings, preexisting subscription services, or preexisting satellite
digital audio radio services may submit to the Librarian of Congress licenses
covering such subscription transmissions with respect to such sound recordings.';
and
(C) by striking paragraphs (2), (3), (4), and (5) and inserting the following:
`(B) In the absence of license agreements negotiated under subparagraph (A), during
the 60-day period commencing 6 months after publication of the notice specified
in subparagraph (A), and upon the filing of a petition in accordance with section
803(a)(1), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright
arbitration royalty panel to determine and publish in the Federal Register a schedule
of rates and terms which, subject to paragraph (3), shall be binding on all copyright
owners of sound recordings and entities performing sound recordings affected by
this paragraph. In establishing rates and terms for preexisting subscription services
and preexisting satellite digital audio radio services, in addition to the objectives
set forth in section 801(b)(1), the copyright arbitration royalty panel may consider
the rates and terms for comparable types of subscription digital audio transmission
services and comparable circumstances under voluntary license agreements negotiated
as provided in subparagraph (A).
`(C)(i) Publication of a notice of the initiation of voluntary negotiation proceedings
as specified in subparagraph (A) shall be repeated, in accordance with regulations
that the Librarian of Congress shall prescribe--
`(I) no later than 30 days after a petition is filed by any copyright owners
of sound recordings, any preexisting subscription services, or any preexisting
satellite digital audio radio services indicating that a new type of subscription
digital audio transmission service on which sound recordings are performed is
or is about to become operational; and
`(II) in the first week of January 2001, and at 5-year intervals thereafter.
`(ii) The procedures specified in subparagraph (B) shall be repeated, in accordance
with regulations that the Librarian of Congress shall prescribe, upon filing of
a petition in accordance with section 803(a)(1) during a 60-day period commencing--
`(I) 6 months after publication of a notice of the initiation of voluntary negotiation
proceedings under subparagraph (A) pursuant to a petition under clause (i)(I)
of this subparagraph; or
`(II) on July 1, 2001, and at 5-year intervals thereafter.
`(iii) The procedures specified in subparagraph (B) shall be concluded in accordance
with section 802.
`(2)(A) No later than 30 days after the date of the enactment of the Digital Millennium
Copyright Act, the Librarian of Congress shall cause notice to be published in
the Federal Register of the initiation of voluntary negotiation proceedings for
the purpose of determining reasonable terms and rates of royalty payments for
public performances of sound recordings by means of eligible nonsubscription transmissions
and transmissions by new subscription services specified by subsection (d)(2)
during the period beginning on the date of the enactment of such Act and ending
on December 31, 2000, or such other date as the parties may agree. Such rates
and terms shall distinguish among the different types of eligible nonsubscription
transmission services and new subscription services then in operation and shall
include a minimum fee for each such type of service. Any copyright owners of sound
recordings or any entities performing sound recordings affected by this paragraph
may submit to the Librarian of Congress licenses covering such eligible nonsubscription
transmissions and new subscription services with respect to such sound recordings.
The parties to each negotiation proceeding shall bear their own costs.
`(B) In the absence of license agreements negotiated under subparagraph (A), during
the 60-day period commencing 6 months after publication of the notice specified
in subparagraph (A), and upon the filing of a petition in accordance with section
803(a)(1), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright
arbitration royalty panel to determine and publish in the Federal Register a schedule
of rates and terms which, subject to paragraph (3), shall be binding on all copyright
owners of sound recordings and entities performing sound recordings affected by
this paragraph during the period beginning on the date of the enactment of the
Digital Millennium Copyright Act and ending on December 31, 2000, or such other
date as the parties may agree. Such rates and terms shall distinguish among the
different types of eligible nonsubscription transmission services then in operation
and shall include a minimum fee for each such type of service, such differences
to be based on criteria including, but not limited to, the quantity and nature
of the use of sound recordings and the degree to which use of the service may
substitute for or may promote the purchase of phonorecords by consumers. In establishing
rates and terms for transmissions by eligible nonsubscription services and new
subscription services, the copyright arbitration royalty panel shall establish
rates and terms that most clearly represent the rates and terms that would have
been negotiated in the marketplace between a willing buyer and a willing seller.
In determining such rates and terms, the copyright arbitration royalty panel shall
base its decision on economic, competitive and programming information presented
by the parties, including--
`(i) whether use of the service may substitute for or may promote the sales of
phonorecords or otherwise may interfere with or may enhance the sound recording
copyright owner's other streams of revenue from its sound recordings; and
`(ii) the relative roles of the copyright owner and the transmitting entity in
the copyrighted work and the service made available to the public with respect
to relative creative contribution, technological contribution, capital investment,
cost, and risk.
In establishing such rates and terms, the copyright arbitration royalty panel
may consider the rates and terms for comparable types of digital audio transmission
services and comparable circumstances under voluntary license agreements negotiated
under subparagraph (A).
`(C)(i) Publication of a notice of the initiation of voluntary negotiation proceedings
as specified in subparagraph (A) shall be repeated in accordance with regulations
that the Librarian of Congress shall prescribe--
`(I) no later than 30 days after a petition is filed by any copyright owners
of sound recordings or any eligible nonsubscription service or new subscription
service indicating that a new type of eligible nonsubscription service or new
subscription service on which sound recordings are performed is or is about to
become operational; and
`(II) in the first week of January 2000, and at 2-year intervals thereafter,
except to the extent that different years for the repeating of such proceedings
may be determined in accordance with subparagraph (A).
`(ii) The procedures specified in subparagraph (B) shall be repeated, in accordance
with regulations that the Librarian of Congress shall prescribe, upon filing of
a petition in accordance with section 803(a)(1) during a 60-day period commencing--
`(I) 6 months after publication of a notice of the initiation of voluntary negotiation
proceedings under subparagraph (A) pursuant to a petition under clause (i)(I);
or
`(II) on July 1, 2000, and at 2-year intervals thereafter, except to the extent
that different years for the repeating of such proceedings may be determined
in accordance with subparagraph (A).
`(iii) The procedures specified in subparagraph (B) shall be concluded in accordance
with section 802.
`(3) License agreements voluntarily negotiated at any time between 1 or more copyright
owners of sound recordings and 1 or more entities performing sound recordings
shall be given effect in lieu of any determination by a copyright arbitration
royalty panel or decision by the Librarian of Congress.
`(4)(A) The Librarian of Congress shall also establish requirements by which copyright
owners may receive reasonable notice of the use of their sound recordings under
this section, and under which records of such use shall be kept and made available
by entities performing sound recordings.
`(B) Any person who wishes to perform a sound recording publicly by means of a
transmission eligible for statutory licensing under this subsection may do so
without infringing the exclusive right of the copyright owner of the sound recording--
`(i) by complying with such notice requirements as the Librarian of Congress
shall prescribe by regulation and by paying royalty fees in accordance with this
subsection; or
`(ii) if such royalty fees have not been set, by agreeing to pay such royalty
fees as shall be determined in accordance with this subsection.
`(C) Any royalty payments in arrears shall be made on or before the twentieth
day of the month next succeeding the month in which the royalty fees are set.'.
(3) Subsection (g) is amended--
(A) in the subsection heading by striking `SUB-SCRIPTION';
(B) in paragraph (1) in the matter preceding subparagraph (A), by striking `subscription
transmission licensed' and inserting `transmission licensed under a statutory
license';
(C) in subparagraphs (A) and (B) by striking `subscription'; and
(D) in paragraph (2) by striking `subscription'.
(4) Subsection (j) is amended--
(A) by striking paragraphs (4) and (9) and redesignating paragraphs (2), (3),
(5), (6), (7), and (8) as paragraphs (3), (5), (9), (12), (13), and (14), respectively;
(B) by inserting after paragraph (1) the following:
`(2) An `archived program' is a predetermined program that is available repeatedly
on the demand of the transmission recipient and that is performed in the same
order from the beginning, except that an archived program shall not include a
recorded event or broadcast transmission that makes no more than an incidental
use of sound recordings, as long as such recorded event or broadcast transmission
does not contain an entire sound recording or feature a particular sound recording.';
(C) by inserting after paragraph (3), as so redesignated, the following:
`(4) A `continuous program' is a predetermined program that is continuously performed
in the same order and that is accessed at a point in the program that is beyond
the control of the transmission recipient.';
(D) by inserting after paragraph (5), as so redesignated, the following:
`(6) An `eligible nonsubscription transmission' is a noninteractive nonsubscription
digital audio transmission not exempt under subsection (d)(1) that is made as
part of a service that provides audio programming consisting, in whole or in part,
of performances of sound recordings, including retransmissions of broadcast transmissions,
if the primary purpose of the service is to provide to the public such audio or
other entertainment programming, and the primary purpose of the service is not
to sell, advertise, or promote particular products or services other than sound
recordings, live concerts, or other music-related events.
`(7) An `interactive service' is one that enables a member of the public to receive
a transmission of a program specially created for the recipient, or on request,
a transmission of a particular sound recording, whether or not as part of a program,
which is selected by or on behalf of the recipient. The ability of individuals
to request that particular sound recordings be performed for reception by the
public at large, or in the case of a subscription service, by all subscribers
of the service, does not make a service interactive, if the programming on each
channel of the service does not substantially consist of sound recordings that
are performed within 1 hour of the request or at a time designated by either the
transmitting entity or the individual making such request. If an entity offers
both interactive and noninteractive services (either concurrently or at different
times), the noninteractive component shall not be treated as part of an interactive
service.
`(8) A `new subscription service' is a service that performs sound recordings
by means of noninteractive subscription digital audio transmissions and that is
not a preexisting subscription service or a preexisting satellite digital audio
radio service.';
(E) by inserting after paragraph (9), as so redesignated, the following:
`(10) A `preexisting satellite digital audio radio service' is a subscription
satellite digital audio radio service provided pursuant to a satellite digital
audio radio service license issued by the Federal Communications Commission on
or before July 31, 1998, and any renewal of such license to the extent of the
scope of the original license, and may include a limited number of sample channels
representative of the subscription service that are made available on a nonsubscription
basis in order to promote the subscription service.
`(11) A `preexisting subscription service' is a service that performs sound recordings
by means of noninteractive audio-only subscription digital audio transmissions,
which was in existence and was making such transmissions to the public for a fee
on or before July 31, 1998, and may include a limited number of sample channels
representative of the subscription service that are made available on a nonsubscription
basis in order to promote the subscription service.'; and
(F) by adding at the end the following:
`(15) A `transmission' is either an initial transmission or a retransmission.'.
(5) The amendment made by paragraph (2)(B)(i)(III) of this subsection shall be
deemed to have been enacted as part of the Digital Performance Right in Sound
Recordings Act of 1995, and the publication of notice of proceedings under section
114(f)(1) of title 17, United States Code, as in effect upon the effective date
of that Act, for the determination of royalty payments shall be deemed to have
been made for the period beginning on the effective date of that Act and ending
on December 1, 2001.
(6) The amendments made by this subsection do not annul, limit, or otherwise impair
the rights that are preserved by section 114 of title 17, United States Code,
including the rights preserved by subsections (c), (d)(4), and (i) of such section.
(b) EPHEMERAL RECORDINGS- Section 112 of title 17, United States Code, is amended--
(1) by redesignating subsection (e) as subsection (f); and
(2) by inserting after subsection (d) the following:
`(e) STATUTORY LICENSE- (1) A transmitting organization entitled to transmit to
the public a performance of a sound recording under the limitation on exclusive
rights specified by section 114(d)(1)(C)(iv) or under a statutory license in accordance
with section 114(f) is entitled to a statutory license, under the conditions specified
by this subsection, to make no more than 1 phonorecord of the sound recording (unless
the terms and conditions of the statutory license allow for more), if the following
conditions are satisfied:
`(A) The phonorecord is retained and used solely by the transmitting organization
that made it, and no further phonorecords are reproduced from it.
`(B) The phonorecord is used solely for the transmitting organization's own transmissions
originating in the United States under a statutory license in accordance with
section 114(f) or the limitation on exclusive rights specified by section 114(d)(1)(C)(iv).
`(C) Unless preserved exclusively for purposes of archival preservation, the phonorecord
is destroyed within 6 months from the date the sound recording was first transmitted
to the public using the phonorecord.
`(D) Phonorecords of the sound recording have been distributed to the public under
the authority of the copyright owner or the copyright owner authorizes the transmitting
entity to transmit the sound recording, and the transmitting entity makes the
phonorecord under this subsection from a phonorecord lawfully made and acquired
under the authority of the copyright owner.
`(3) Notwithstanding any provision of the antitrust laws, any copyright owners
of sound recordings and any transmitting organizations entitled to a statutory
license under this subsection may negotiate and agree upon royalty rates and license
terms and conditions for making phonorecords of such sound recordings under this
section and the proportionate division of fees paid among copyright owners, and
may designate common agents to negotiate, agree to, pay, or receive such royalty
payments.
`(4) No later than 30 days after the date of the enactment of the Digital Millennium
Copyright Act, the Librarian of Congress shall cause notice to be published in
the Federal Register of the initiation of voluntary negotiation proceedings for
the purpose of determining reasonable terms and rates of royalty payments for the
activities specified by paragraph (2) of this subsection during the period beginning
on the date of the enactment of such Act and ending on December 31, 2000, or such
other date as the parties may agree. Such rates shall include a minimum fee for
each type of service offered by transmitting organizations. Any copyright owners
of sound recordings or any transmitting organizations entitled to a statutory license
under this subsection may submit to the Librarian of Congress licenses covering
such activities with respect to such sound recordings. The parties to each negotiation
proceeding shall bear their own costs.
`(5) In the absence of license agreements negotiated under paragraph (3), during
the 60-day period commencing 6 months after publication of the notice specified
in paragraph (4), and upon the filing of a petition in accordance with section
803(a)(1), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright
arbitration royalty panel to determine and publish in the Federal Register a schedule
of reasonable rates and terms which, subject to paragraph (6), shall be binding
on all copyright owners of sound recordings and transmitting organizations entitled
to a statutory license under this subsection during the period beginning on the
date of the enactment of the Digital Millennium Copyright Act and ending on December
31, 2000, or such other date as the parties may agree. Such rates shall include
a minimum fee for each type of service offered by transmitting organizations. The
copyright arbitration royalty panel shall establish rates that most clearly represent
the fees that would have been negotiated in the marketplace between a willing buyer
and a willing seller. In determining such rates and terms, the copyright arbitration
royalty panel shall base its decision on economic, competitive, and programming
information presented by the parties, including--
`(A) whether use of the service may substitute for or may promote the sales of
phonorecords or otherwise interferes with or enhances the copyright owner's traditional
streams of revenue; and
`(B) the relative roles of the copyright owner and the transmitting organization
in the copyrighted work and the service made available to the public with respect
to relative creative contribution, technological contribution, capital investment,
cost, and risk.
In establishing such rates and terms, the copyright arbitration royalty panel may
consider the rates and terms under voluntary license agreements negotiated as provided
in paragraphs (3) and (4). The Librarian of Congress shall also establish requirements
by which copyright owners may receive reasonable notice of the use of their sound
recordings under this section, and under which records of such use shall be kept
and made available by transmitting organizations entitled to obtain a statutory
license under this subsection.
`(6) License agreements voluntarily negotiated at any time between 1 or more copyright
owners of sound recordings and 1 or more transmitting organizations entitled to
obtain a statutory license under this subsection shall be given effect in lieu
of any determination by a copyright arbitration royalty panel or decision by the
Librarian of Congress.
`(7) Publication of a notice of the initiation of voluntary negotiation proceedings
as specified in paragraph (4) shall be repeated, in accordance with regulations
that the Librarian of Congress shall prescribe, in the first week of January 2000,
and at 2-year intervals thereafter, except to the extent that different years for
the repeating of such proceedings may be determined in accordance with paragraph
(4). The procedures specified in paragraph (5) shall be repeated, in accordance
with regulations that the Librarian of Congress shall prescribe, upon filing of
a petition in accordance with section 803(a)(1), during a 60-day period commencing
on July 1, 2000, and at 2-year intervals thereafter, except to the extent that
different years for the repeating of such proceedings may be determined in accordance
with paragraph (4). The procedures specified in paragraph (5) shall be concluded
in accordance with section 802.
`(8)(A) Any person who wishes to make a phonorecord of a sound recording under
a statutory license in accordance with this subsection may do so without infringing
the exclusive right of the copyright owner of the sound recording under section
106(1)--
`(i) by complying with such notice requirements as the Librarian of Congress shall
prescribe by regulation and by paying royalty fees in accordance with this subsection;
or
`(ii) if such royalty fees have not been set, by agreeing to pay such royalty
fees as shall be determined in accordance with this subsection.
`(B) Any royalty payments in arrears shall be made on or before the 20th day of
the month next succeeding the month in which the royalty fees are set.
`(9) If a transmitting organization entitled to make a phonorecord under this subsection
is prevented from making such phonorecord by reason of the application by the copyright
owner of technical measures that prevent the reproduction of the sound recording,
the copyright owner shall make available to the transmitting organization the necessary
means for permitting the making of such phonorecord as permitted under this subsection,
if it is technologically feasible and economically reasonable for the copyright
owner to do so. If the copyright owner fails to do so in a timely manner in light
of the transmitting organization's reasonable business requirements, the transmitting
organization shall not be liable for a violation of section 1201(a)(1) of this
title for engaging in such activities as are necessary to make such phonorecords
as permitted under this subsection.
`(10) Nothing in this subsection annuls, limits, impairs, or otherwise affects
in any way the existence or value of any of the exclusive rights of the copyright
owners in a sound recording, except as otherwise provided in this subsection, or
in a musical work, including the exclusive rights to reproduce and distribute a
sound recording or musical work, including by means of a digital phonorecord delivery,
under sections 106(1), 106(3), and 115, and the right to perform publicly a sound
recording or musical work, including by means of a digital audio transmission,
under sections 106(4) and 106(6).'.
(c) SCOPE OF SECTION 112(a) OF TITLE 17 NOT AFFECTED- Nothing in this section or
the amendments made by this section shall affect the scope of section 112(a) of
title 17, United States Code, or the entitlement of any person to an exemption
thereunder.
(d) PROCEDURAL AMENDMENTS TO CHAPTER 8- Section 802 of title 17, United States
Code, is amended--
(A) in the first sentence by striking `60' and inserting `90'; and
(B) in the third sentence by striking `that 60-day period' and inserting `an
additional 30-day period'; and
(2) in subsection (g) by inserting after the second sentence the following: `When
this title provides that the royalty rates or terms that were previously in effect
are to expire on a specified date, any adjustment by the Librarian of those rates
or terms shall be effective as of the day following the date of expiration of
the rates or terms that were previously in effect, even if the Librarian's decision
is rendered on a later date.'.
(e) CONFORMING AMENDMENTS- (1) Section 801(b)(1) of title 17, United States Code,
is amended in the second sentence by striking `sections 114, 115, and 116' and
inserting `sections 114(f)(1)(B), 115, and 116'.
(2) Section 802(c) of title 17, United States Code, is amended by striking `section
111, 114, 116, or 119, any person entitled to a compulsory license' and inserting
`section 111, 112, 114, 116, or 119, any transmitting organization entitled to
a statutory license under section 112(f), any person entitled to a statutory license'.
(3) Section 802(g) of title 17, United States Code, is amended by striking `sections
111, 114' and inserting `sections 111, 112, 114'.
(4) Section 802(h)(2) of title 17, United States Code, is amended by striking `section
111, 114' and inserting `section 111, 112, 114'.
(5) Section 803(a)(1) of title 17, United States Code, is amended by striking `sections
114, 115' and inserting `sections 112, 114, 115'.
(6) Section 803(a)(5) of title 17, United States Code, is amended--
(A) by striking `section 114' and inserting `section 112 or 114'; and
(B) by striking `that section' and inserting `those sections'.
SEC. 406. ASSUMPTION OF CONTRACTUAL OBLIGATIONS RELATED TO TRANSFERS OF RIGHTS
IN MOTION PICTURES.
(a) IN GENERAL- Part VI of title 28, United States Code, is amended by adding at
the end the following new chapter:
`CHAPTER 180--ASSUMPTION OF CERTAIN CONTRACTUAL OBLIGATIONS
`Sec. 4001. Assumption of contractual obligations related to transfers of rights
in motion pictures.
`Sec. 4001. Assumption of contractual obligations related to transfers of rights
in motion pictures
`(a) ASSUMPTION OF OBLIGATIONS- (1) In the case of a transfer of copyright ownership
under United States law in a motion picture (as the terms `transfer of copyright
ownership' and `motion picture' are defined in section 101 of title 17) that is
produced subject to 1 or more collective bargaining agreements negotiated under
the laws of the United States, if the transfer is executed on or after the effective
date of this chapter and is not limited to public performance rights, the transfer
instrument shall be deemed to incorporate the assumption agreements applicable
to the copyright ownership being transferred that are required by the applicable
collective bargaining agreement, and the transferee shall be subject to the obligations
under each such assumption agreement to make residual payments and provide related
notices, accruing after the effective date of the transfer and applicable to the
exploitation of the rights transferred, and any remedies under each such assumption
agreement for breach of those obligations, as those obligations and remedies are
set forth in the applicable collective bargaining agreement, if--
`(A) the transferee knows or has reason to know at the time of the transfer that
such collective bargaining agreement was or will be applicable to the motion picture;
or
`(B) in the event of a court order confirming an arbitration award against the
transferor under the collective bargaining agreement, the transferor does not
have the financial ability to satisfy the award within 90 days after the order
is issued.
`(2) For purposes of paragraph (1)(A), `knows or has reason to know' means any
of the following:
`(A) Actual knowledge that the collective bargaining agreement was or will be
applicable to the motion picture.
`(B)(i) Constructive knowledge that the collective bargaining agreement was or
will be applicable to the motion picture, arising from recordation of a document
pertaining to copyright in the motion picture under section 205 of title 17 or
from publication, at a site available to the public on-line that is operated by
the relevant union, of information that identifies the motion picture as subject
to a collective bargaining agreement with that union, if the site permits commercially
reasonable verification of the date on which the information was available for
access.
`(ii) Clause (i) applies only if the transfer referred to in subsection (a)(1)
occurs--
`(I) after the motion picture is completed, or
`(II) before the motion picture is completed and--
`(aa) within 18 months before the filing of an application for copyright registration
for the motion picture under section 408 of title 17, or
`(bb) if no such application is filed, within 18 months before the first publication
of the motion picture in the United States.
`(C) Awareness of other facts and circumstances pertaining to a particular transfer
from which it is apparent that the collective bargaining agreement was or will
be applicable to the motion picture.
`(b) SCOPE OF EXCLUSION OF TRANSFERS OF PUBLIC PERFORMANCE RIGHTS- For purposes
of this section, the exclusion under subsection (a) of transfers of copyright ownership
in a motion picture that are limited to public performance rights includes transfers
to a terrestrial broadcast station, cable system, or programmer to the extent that
the station, system, or programmer is functioning as an exhibitor of the motion
picture, either by exhibiting the motion picture on its own network, system, service,
or station, or by initiating the transmission of an exhibition that is carried
on another network, system, service, or station. When a terrestrial broadcast station,
cable system, or programmer, or other transferee, is also functioning otherwise
as a distributor or as a producer of the motion picture, the public performance
exclusion does not affect any obligations imposed on the transferee to the extent
that it is engaging in such functions.
`(c) EXCLUSION FOR GRANTS OF SECURITY INTERESTS- Subsection (a) shall not apply
to--
`(1) a transfer of copyright ownership consisting solely of a mortgage, hypothecation,
or other security interest; or
`(2) a subsequent transfer of the copyright ownership secured by the security
interest described in paragraph (1) by or under the authority of the secured party,
including a transfer through the exercise of the secured party's rights or remedies
as a secured party, or by a subsequent transferee.
The exclusion under this subsection shall not affect any rights or remedies under
law or contract.
`(d) DEFERRAL PENDING RESOLUTION OF BONA FIDE DISPUTE- A transferee on which obligations
are imposed under subsection (a) by virtue of paragraph (1) of that subsection
may elect to defer performance of such obligations that are subject to a bona fide
dispute between a union and a prior transferor until that dispute is resolved,
except that such deferral shall not stay accrual of any union claims due under
an applicable collective bargaining agreement.
`(e) SCOPE OF OBLIGATIONS DETERMINED BY PRIVATE AGREEMENT- Nothing in this section
shall expand or diminish the rights, obligations, or remedies of any person under
the collective bargaining agreements or assumption agreements referred to in this
section.
`(f) FAILURE TO NOTIFY- If the transferor under subsection (a) fails to notify
the transferee under subsection (a) of applicable collective bargaining obligations
before the execution of the transfer instrument, and subsection (a) is made applicable
to the transferee solely by virtue of subsection (a)(1)(B), the transferor shall
be liable to the transferee for any damages suffered by the transferee as a result
of the failure to notify.
`(g) DETERMINATION OF DISPUTES AND CLAIMS- Any dispute concerning the application
of subsections (a) through (f) shall be determined by an action in United States
district court, and the court in its discretion may allow the recovery of full
costs by or against any party and may also award a reasonable attorney's fee to
the prevailing party as part of the costs.
`(h) STUDY- The Comptroller General, in consultation with the Register of Copyrights,
shall conduct a study of the conditions in the motion picture industry that gave
rise to this section, and the impact of this section on the motion picture industry.
The Comptroller General shall report the findings of the study to the Congress
within 2 years after the effective date of this chapter.'.
(b) CONFORMING AMENDMENT- The table of chapters for part VI of title 28, United
States Code, is amended by adding at the end the following:
4001'.
SEC. 407. EFFECTIVE DATE.
Except as otherwise provided in this title, this title and the amendments made
by this title shall take effect on the date of the enactment of this Act.
TITLE V--PROTECTION OF CERTAIN ORIGINAL DESIGNS
SEC. 501. SHORT TITLE.
This Act may be referred to as the `Vessel Hull Design Protection Act'.
SEC. 502. PROTECTION OF CERTAIN ORIGINAL DESIGNS.
Title 17, United States Code, is amended by adding at the end the following new
chapter:
`CHAPTER 13--PROTECTION OF ORIGINAL DESIGNS
`1301. Designs protected.
`1302. Designs not subject to protection.
`1303. Revisions, adaptations, and rearrangements.
`1304. Commencement of protection.
`1305. Term of protection.
`1307. Effect of omission of notice.
`1310. Application for registration.
`1311. Benefit of earlier filing date in foreign country.
`1312. Oaths and acknowledgments.
`1313. Examination of application and issue or refusal of registration.
`1314. Certification of registration.
`1315. Publication of announcements and indexes.
`1318. Copies of records.
`1319. Correction of errors in certificates.
`1320. Ownership and transfer.
`1321. Remedy for infringement.
`1323. Recovery for infringement.
`1324. Power of court over registration.
`1325. Liability for action on registration fraudulently obtained.
`1326. Penalty for false marking.
`1327. Penalty for false representation.
`1328. Enforcement by Treasury and Postal Service.
`1329. Relation to design patent law.
`1330. Common law and other rights unaffected.
`1331. Administrator; Office of the Administrator.
`1332. No retroactive effect.
`Sec. 1301. Designs protected
`(1) IN GENERAL- The designer or other owner of an original design of a useful
article which makes the article attractive or distinctive in appearance to the
purchasing or using public may secure the protection provided by this chapter
upon complying with and subject to this chapter.
`(2) VESSEL HULLS- The design of a vessel hull, including a plug or mold, is subject
to protection under this chapter, notwithstanding section 1302(4).
`(b) DEFINITIONS- For the purpose of this chapter, the following terms have the
following meanings:
`(1) A design is `original' if it is the result of the designer's creative endeavor
that provides a distinguishable variation over prior work pertaining to similar
articles which is more than merely trivial and has not been copied from another
source.
`(2) A `useful article' is a vessel hull, including a plug or mold, which in normal
use has an intrinsic utilitarian function that is not merely to portray the appearance
of the article or to convey information. An article which normally is part of
a useful article shall be deemed to be a useful article.
`(3) A `vessel' is a craft, especially one larger than a rowboat, designed to
navigate on water, but does not include any such craft that exceeds 200 feet in
length.
`(4) A `hull' is the frame or body of a vessel, including the deck of a vessel,
exclusive of masts, sails, yards, and rigging.
`(5) A `plug' means a device or model used to make a mold for the purpose of exact
duplication, regardless of whether the device or model has an intrinsic utilitarian
function that is not only to portray the appearance of the product or to convey
information.
`(6) A `mold' means a matrix or form in which a substance for material is used,
regardless of whether the matrix or form has an intrinsic utilitarian function
that is not only to portray the appearance of the product or to convey information.
`Sec. 1302. Designs not subject to protection
`Protection under this chapter shall not be available for a design that is--
`(2) staple or commonplace, such as a standard geometric figure, a familiar symbol,
an emblem, or a motif, or another shape, pattern, or configuration which has become
standard, common, prevalent, or ordinary;
`(3) different from a design excluded by paragraph (2) only in insignificant details
or in elements which are variants commonly used in the relevant trades;
`(4) dictated solely by a utilitarian function of the article that embodies it;
or
`(5) embodied in a useful article that was made public by the designer or owner
in the United States or a foreign country more than 1 year before the date of
the application for registration under this chapter.
`Sec. 1303. Revisions, adaptations, and rearrangements
`Protection for a design under this chapter shall be available notwithstanding
the employment in the design of subject matter excluded from protection under section
1302 if the design is a substantial revision, adaptation, or rearrangement of such
subject matter. Such protection shall be independent of any subsisting protection
in subject matter employed in the design, and shall not be construed as securing
any right to subject matter excluded from protection under this chapter or as extending
any subsisting protection under this chapter.
`Sec. 1304. Commencement of protection
`The protection provided for a design under this chapter shall commence upon the
earlier of the date of publication of the registration under section 1313(a) or
the date the design is first made public as defined by section 1310(b).
`Sec. 1305. Term of protection
`(a) IN GENERAL- Subject to subsection (b), the protection provided under this
chapter for a design shall continue for a term of 10 years beginning on the date
of the commencement of protection under section 1304.
`(b) EXPIRATION- All terms of protection provided in this section shall run to
the end of the calendar year in which they would otherwise expire.
`(c) TERMINATION OF RIGHTS- Upon expiration or termination of protection in a particular
design under this chapter, all rights under this chapter in the design shall terminate,
regardless of the number of different articles in which the design may have been
used during the term of its protection.
`Sec. 1306. Design notice
`(a) CONTENTS OF DESIGN NOTICE- (1) Whenever any design for which protection is
sought under this chapter is made public under section 1310(b), the owner of the
design shall, subject to the provisions of section 1307, mark it or have it marked
legibly with a design notice consisting of--
`(A) the words `Protected Design', the abbreviation `Prot'd Des.', or the letter
`D' with a circle, or the symbol `*D*';
`(B) the year of the date on which protection for the design commenced; and
`(C) the name of the owner, an abbreviation by which the name can be recognized,
or a generally accepted alternative designation of the owner.
Any distinctive identification of the owner may be used for purposes of subparagraph
(C) if it has been recorded by the Administrator before the design marked with
such identification is registered.
`(2) After registration, the registration number may be used instead of the elements
specified in subparagraphs (B) and (C) of paragraph (1).
`(b) LOCATION OF NOTICE- The design notice shall be so located and applied as to
give reasonable notice of design protection while the useful article embodying
the design is passing through its normal channels of commerce.
`(c) SUBSEQUENT REMOVAL OF NOTICE- When the owner of a design has complied with
the provisions of this section, protection under this chapter shall not be affected
by the removal, destruction, or obliteration by others of the design notice on
an article.
`Sec. 1307. Effect of omission of notice
`(a) ACTIONS WITH NOTICE- Except as provided in subsection (b), the omission of
the notice prescribed in section 1306 shall not cause loss of the protection under
this chapter or prevent recovery for infringement under this chapter against any
person who, after receiving written notice of the design protection, begins an
undertaking leading to infringement under this chapter.
`(b) ACTIONS WITHOUT NOTICE- The omission of the notice prescribed in section 1306
shall prevent any recovery under section 1323 against a person who began an undertaking
leading to infringement under this chapter before receiving written notice of the
design protection. No injunction shall be issued under this chapter with respect
to such undertaking unless the owner of the design reimburses that person for any
reasonable expenditure or contractual obligation in connection with such undertaking
that was incurred before receiving written notice of the design protection, as
the court in its discretion directs. The burden of providing written notice of
design protection shall be on the owner of the design.
`Sec. 1308. Exclusive rights
`The owner of a design protected under this chapter has the exclusive right to--
`(1) make, have made, or import, for sale or for use in trade, any useful article
embodying that design; and
`(2) sell or distribute for sale or for use in trade any useful article embodying
that design.
`Sec. 1309. Infringement
`(a) ACTS OF INFRINGEMENT- Except as provided in subsection (b), it shall be infringement
of the exclusive rights in a design protected under this chapter for any person,
without the consent of the owner of the design, within the United States and during
the term of such protection, to--
`(1) make, have made, or import, for sale or for use in trade, any infringing
article as defined in subsection (e); or
`(2) sell or distribute for sale or for use in trade any such infringing article.
`(b) ACTS OF SELLERS AND DISTRIBUTORS- A seller or distributor of an infringing
article who did not make or import the article shall be deemed to have infringed
on a design protected under this chapter only if that person--
`(1) induced or acted in collusion with a manufacturer to make, or an importer
to import such article, except that merely purchasing or giving an order to purchase
such article in the ordinary course of business shall not of itself constitute
such inducement or collusion; or
`(2) refused or failed, upon the request of the owner of the design, to make a
prompt and full disclosure of that person's source of such article, and that person
orders or reorders such article after receiving notice by registered or certified
mail of the protection subsisting in the design.
`(c) ACTS WITHOUT KNOWLEDGE- It shall not be infringement under this section to
make, have made, import, sell, or distribute, any article embodying a design which
was created without knowledge that a design was protected under this chapter and
was copied from such protected design.
`(d) ACTS IN ORDINARY COURSE OF BUSINESS- A person who incorporates into that person's
product of manufacture an infringing article acquired from others in the ordinary
course of business, or who, without knowledge of the protected design embodied
in an infringing article, makes or processes the infringing article for the account
of another person in the ordinary course of business, shall not be deemed to have
infringed the rights in that design under this chapter except under a condition
contained in paragraph (1) or (2) of subsection (b). Accepting an order or reorder
from the source of the infringing article shall be deemed ordering or reordering
within the meaning of subsection (b)(2).
`(e) INFRINGING ARTICLE DEFINED- As used in this section, an `infringing article'
is any article the design of which has been copied from a design protected under
this chapter, without the consent of the owner of the protected design. An infringing
article is not an illustration or picture of a protected design in an advertisement,
book, periodical, newspaper, photograph, broadcast, motion picture, or similar
medium. A design shall not be deemed to have been copied from a protected design
if it is original and not substantially similar in appearance to a protected design.
`(f) ESTABLISHING ORIGINALITY- The party to any action or proceeding under this
chapter who alleges rights under this chapter in a design shall have the burden
of establishing the design's originality whenever the opposing party introduces
an earlier work which is identical to such design, or so similar as to make prima
facie showing that such design was copied from such work.
`(g) REPRODUCTION FOR TEACHING OR ANALYSIS- It is not an infringement of the exclusive
rights of a design owner for a person to reproduce the design in a useful article
or in any other form solely for the purpose of teaching, analyzing, or evaluating
the appearance, concepts, or techniques embodied in the design, or the function
of the useful article embodying the design.
`Sec. 1310. Application for registration
`(a) TIME LIMIT FOR APPLICATION FOR REGISTRATION- Protection under this chapter
shall be lost if application for registration of the design is not made within
2 years after the date on which the design is first made public.
`(b) WHEN DESIGN IS MADE PUBLIC- A design is made public when an existing useful
article embodying the design is anywhere publicly exhibited, publicly distributed,
or offered for sale or sold to the public by the owner of the design or with the
owner's consent.
`(c) APPLICATION BY OWNER OF DESIGN- Application for registration may be made by
the owner of the design.
`(d) CONTENTS OF APPLICATION- The application for registration shall be made to
the Administrator and shall state--
`(1) the name and address of the designer or designers of the design;
`(2) the name and address of the owner if different from the designer;
`(3) the specific name of the useful article embodying the design;
`(4) the date, if any, that the design was first made public, if such date was
earlier than the date of the application;
`(5) affirmation that the design has been fixed in a useful article; and
`(6) such other information as may be required by the Administrator.
The application for registration may include a description setting forth the salient
features of the design, but the absence of such a description shall not prevent
registration under this chapter.
`(e) SWORN STATEMENT- The application for registration shall be accompanied by
a statement under oath by the applicant or the applicant's duly authorized agent
or representative, setting forth, to the best of the applicant's knowledge and
belief--
`(1) that the design is original and was created by the designer or designers
named in the application;
`(2) that the design has not previously been registered on behalf of the applicant
or the applicant's predecessor in title; and
`(3) that the applicant is the person entitled to protection and to registration
under this chapter.
If the design has been made public with the design notice prescribed in section
1306, the statement shall also describe the exact form and position of the design
notice.
`(f) EFFECT OF ERRORS- (1) Error in any statement or assertion as to the utility
of the useful article named in the application under this section, the design of
which is sought to be registered, shall not affect the protection secured under
this chapter.
`(2) Errors in omitting a joint designer or in naming an alleged joint designer
shall not affect the validity of the registration, or the actual ownership or the
protection of the design, unless it is shown that the error occurred with deceptive
intent.
`(g) DESIGN MADE IN SCOPE OF EMPLOYMENT- In a case in which the design was made
within the regular scope of the designer's employment and individual authorship
of the design is difficult or impossible to ascribe and the application so states,
the name and address of the employer for whom the design was made may be stated
instead of that of the individual designer.
`(h) PICTORIAL REPRESENTATION OF DESIGN- The application for registration shall
be accompanied by two copies of a drawing or other pictorial representation of
the useful article embodying the design, having one or more views, adequate to
show the design, in a form and style suitable for reproduction, which shall be
deemed a part of the application.
`(i) DESIGN IN MORE THAN ONE USEFUL ARTICLE- If the distinguishing elements of
a design are in substantially the same form in different useful articles, the design
shall be protected as to all such useful articles when protected as to one of them,
but not more than one registration shall be required for the design.
`(j) APPLICATION FOR MORE THAN ONE DESIGN- More than one design may be included
in the same application under such conditions as may be prescribed by the Administrator.
For each design included in an application the fee prescribed for a single design
shall be paid.
`Sec. 1311. Benefit of earlier filing date in foreign country
`An application for registration of a design filed in the United States by any
person who has, or whose legal representative or predecessor or successor in title
has, previously filed an application for registration of the same design in a foreign
country which extends to designs of owners who are citizens of the United States,
or to applications filed under this chapter, similar protection to that provided
under this chapter shall have that same effect as if filed in the United States
on the date on which the application was first filed in such foreign country, if
the application in the United States is filed within 6 months after the earliest
date on which any such foreign application was filed.
`Sec. 1312. Oaths and acknowledgments
`(a) IN GENERAL- Oaths and acknowledgments required by this chapter--
`(A) before any person in the United States authorized by law to administer oaths;
or
`(B) when made in a foreign country, before any diplomatic or consular officer
of the United States authorized to administer oaths, or before any official authorized
to administer oaths in the foreign country concerned, whose authority shall be
proved by a certificate of a diplomatic or consular officer of the United States;
and
`(2) shall be valid if they comply with the laws of the State or country where
made.
`(b) WRITTEN DECLARATION IN LIEU OF OATH- (1) The Administrator may by rule prescribe
that any document which is to be filed under this chapter in the Office of the
Administrator and which is required by any law, rule, or other regulation to be
under oath, may be subscribed to by a written declaration in such form as the Administrator
may prescribe, and such declaration shall be in lieu of the oath otherwise required.
`(2) Whenever a written declaration under paragraph (1) is used, the document containing
the declaration shall state that willful false statements are punishable by fine
or imprisonment, or both, pursuant to section 1001 of title 18, and may jeopardize
the validity of the application or document or a registration resulting therefrom.
`Sec. 1313. Examination of application and issue or refusal of registration
`(a) DETERMINATION OF REGISTRABILITY OF DESIGN; REGISTRATION- Upon the filing of
an application for registration in proper form under section 1310, and upon payment
of the fee prescribed under section 1316, the Administrator shall determine whether
or not the application relates to a design which on its face appears to be subject
to protection under this chapter, and, if so, the Register shall register the design.
Registration under this subsection shall be announced by publication. The date
of registration shall be the date of publication.
`(b) REFUSAL TO REGISTER; RECONSIDERATION- If, in the judgment of the Administrator,
the application for registration relates to a design which on its face is not subject
to protection under this chapter, the Administrator shall send to the applicant
a notice of refusal to register and the grounds for the refusal. Within 3 months
after the date on which the notice of refusal is sent, the applicant may, by written
request, seek reconsideration of the application. After consideration of such a
request, the Administrator shall either register the design or send to the applicant
a notice of final refusal to register.
`(c) APPLICATION TO CANCEL REGISTRATION- Any person who believes he or she is or
will be damaged by a registration under this chapter may, upon payment of the prescribed
fee, apply to the Administrator at any time to cancel the registration on the ground
that the design is not subject to protection under this chapter, stating the reasons
for the request. Upon receipt of an application for cancellation, the Administrator
shall send to the owner of the design, as shown in the records of the Office of
the Administrator, a notice of the application, and the owner shall have a period
of 3 months after the date on which such notice is mailed in which to present arguments
to the Administrator for support of the validity of the registration. The Administrator
shall also have the authority to establish, by regulation, conditions under which
the opposing parties may appear and be heard in support of their arguments. If,
after the periods provided for the presentation of arguments have expired, the
Administrator determines that the applicant for cancellation has established that
the design is not subject to protection under this chapter, the Administrator shall
order the registration stricken from the record. Cancellation under this subsection
shall be announced by publication, and notice of the Administrator's final determination
with respect to any application for cancellation shall be sent to the applicant
and to the owner of record.
`Sec. 1314. Certification of registration
`Certificates of registration shall be issued in the name of the United States
under the seal of the Office of the Administrator and shall be recorded in the
official records of the Office. The certificate shall state the name of the useful
article, the date of filing of the application, the date of registration, and the
date the design was made public, if earlier than the date of filing of the application,
and shall contain a reproduction of the drawing or other pictorial representation
of the design. If a description of the salient features of the design appears in
the application, the description shall also appear in the certificate. A certificate
of registration shall be admitted in any court as prima facie evidence of the facts
stated in the certificate.
`Sec. 1315. Publication of announcements and indexes
`(a) PUBLICATIONS OF THE ADMINISTRATOR- The Administrator shall publish lists and
indexes of registered designs and cancellations of designs and may also publish
the drawings or other pictorial representations of registered designs for sale
or other distribution.
`(b) FILE OF REPRESENTATIVES OF REGISTERED DESIGNS- The Administrator shall establish
and maintain a file of the drawings or other pictorial representations of registered
designs. The file shall be available for use by the public under such conditions
as the Administrator may prescribe.
`Sec. 1316. Fees
`The Administrator shall by regulation set reasonable fees for the filing of applications
to register designs under this chapter and for other services relating to the administration
of this chapter, taking into consideration the cost of providing these services
and the benefit of a public record.
`Sec. 1317. Regulations
`The Administrator may establish regulations for the administration of this chapter.
`Sec. 1318. Copies of records
`Upon payment of the prescribed fee, any person may obtain a certified copy of
any official record of the Office of the Administrator that relates to this chapter.
That copy shall be admissible in evidence with the same effect as the original.
`Sec. 1319. Correction of errors in certificates
`The Administrator may, by a certificate of correction under seal, correct any
error in a registration incurred through the fault of the Office, or, upon payment
of the required fee, any error of a clerical or typographical nature occurring
in good faith but not through the fault of the Office. Such registration, together
with the certificate, shall thereafter have the same effect as if it had been originally
issued in such corrected form.
`Sec. 1320. Ownership and transfer
`(a) PROPERTY RIGHT IN DESIGN- The property right in a design subject to protection
under this chapter shall vest in the designer, the legal representatives of a deceased
designer or of one under legal incapacity, the employer for whom the designer created
the design in the case of a design made within the regular scope of the designer's
employment, or a person to whom the rights of the designer or of such employer
have been transferred. The person in whom the property right is vested shall be
considered the owner of the design.
`(b) TRANSFER OF PROPERTY RIGHT- The property right in a registered design, or
a design for which an application for registration has been or may be filed, may
be assigned, granted, conveyed, or mortgaged by an instrument in writing, signed
by the owner, or may be bequeathed by will.
`(c) OATH OR ACKNOWLEDGEMENT OF TRANSFER- An oath or acknowledgment under section
1312 shall be prima facie evidence of the execution of an assignment, grant, conveyance,
or mortgage under subsection (b).
`(d) RECORDATION OF TRANSFER- An assignment, grant, conveyance, or mortgage under
subsection (b) shall be void as against any subsequent purchaser or mortgagee for
a valuable consideration, unless it is recorded in the Office of the Administrator
within 3 months after its date of execution or before the date of such subsequent
purchase or mortgage.
`Sec. 1321. Remedy for infringement
`(a) IN GENERAL- The owner of a design is entitled, after issuance of a certificate
of registration of the design under this chapter, to institute an action for any
infringement of the design.
`(b) REVIEW OF REFUSAL TO REGISTER- (1) Subject to paragraph (2), the owner of
a design may seek judicial review of a final refusal of the Administrator to register
the design under this chapter by bringing a civil action, and may in the same action,
if the court adjudges the design subject to protection under this chapter, enforce
the rights in that design under this chapter.
`(2) The owner of a design may seek judicial review under this section if--
`(A) the owner has previously duly filed and prosecuted to final refusal an application
in proper form for registration of the design;
`(B) the owner causes a copy of the complaint in the action to be delivered to
the Administrator within 10 days after the commencement of the action; and
`(C) the defendant has committed acts in respect to the design which would constitute
infringement with respect to a design protected under this chapter.
`(c) ADMINISTRATOR AS PARTY TO ACTION- The Administrator may, at the Administrator's
option, become a party to the action with respect to the issue of registrability
of the design claim by entering an appearance within 60 days after being served
with the complaint, but the failure of the Administrator to become a party shall
not deprive the court of jurisdiction to determine that issue.
`(d) USE OF ARBITRATION TO RESOLVE DISPUTE- The parties to an infringement dispute
under this chapter, within such time as may be specified by the Administrator by
regulation, may determine the dispute, or any aspect of the dispute, by arbitration.
Arbitration shall be governed by title 9. The parties shall give notice of any
arbitration award to the Administrator, and such award shall, as between the parties
to the arbitration, be dispositive of the issues to which it relates. The arbitration
award shall be unenforceable until such notice is given. Nothing in this subsection
shall preclude the Administrator from determining whether a design is subject to
registration in a cancellation proceeding under section 1313(c).
Sec. 1322. Injunctions
`(a) IN GENERAL- A court having jurisdiction over actions under this chapter may
grant injunctions in accordance with the principles of equity to prevent infringement
of a design under this chapter, including, in its discretion, prompt relief by
temporary restraining orders and preliminary injunctions.
`(b) DAMAGES FOR INJUNCTIVE RELIEF WRONGFULLY OBTAINED- A seller or distributor
who suffers damage by reason of injunctive relief wrongfully obtained under this
section has a cause of action against the applicant for such injunctive relief
and may recover such relief as may be appropriate, including damages for lost profits,
cost of materials, loss of good will, and punitive damages in instances where the
injunctive relief was sought in bad faith, and, unless the court finds extenuating
circumstances, reasonable attorney's fees.
`Sec. 1323. Recovery for infringement
`(a) DAMAGES- Upon a finding for the claimant in an action for infringement under
this chapter, the court shall award the claimant damages adequate to compensate
for the infringement. In addition, the court may increase the damages to such amount,
not exceeding $50,000 or $1 per copy, whichever is greater, as the court determines
to be just. The damages awarded shall constitute compensation and not a penalty.
The court may receive expert testimony as an aid to the determination of damages.
`(b) INFRINGER'S PROFITS- As an alternative to the remedies provided in subsection
(a), the court may award the claimant the infringer's profits resulting from the
sale of the copies if the court finds that the infringer's sales are reasonably
related to the use of the claimant's design. In such a case, the claimant shall
be required to prove only the amount of the infringer's sales and the infringer
shall be required to prove its expenses against such sales.
`(c) STATUTE OF LIMITATIONS- No recovery under subsection (a) or (b) shall be had
for any infringement committed more than 3 years before the date on which the complaint
is filed.
`(d) ATTORNEY'S FEES- In an action for infringement under this chapter, the court
may award reasonable attorney's fees to the prevailing party.
`(e) DISPOSITION OF INFRINGING AND OTHER ARTICLES- The court may order that all
infringing articles, and any plates, molds, patterns, models, or other means specifically
adapted for making the articles, be delivered up for destruction or other disposition
as the court may direct.
`Sec. 1324. Power of court over registration
`In any action involving the protection of a design under this chapter, the court,
when appropriate, may order registration of a design under this chapter or the
cancellation of such a registration. Any such order shall be certified by the court
to the Administrator, who shall make an appropriate entry upon the record.
`Sec. 1325. Liability for action on registration fraudulently obtained
`Any person who brings an action for infringement knowing that registration of
the design was obtained by a false or fraudulent representation materially affecting
the rights under this chapter, shall be liable in the sum of $10,000, or such part
of that amount as the court may determine. That amount shall be to compensate the
defendant and shall be charged against the plaintiff and paid to the defendant,
in addition to such costs and attorney's fees of the defendant as may be assessed
by the court.
`Sec. 1326. Penalty for false marking
`(a) IN GENERAL- Whoever, for the purpose of deceiving the public, marks upon,
applies to, or uses in advertising in connection with an article made, used, distributed,
or sold, a design which is not protected under this chapter, a design notice specified
in section 1306, or any other words or symbols importing that the design is protected
under this chapter, knowing that the design is not so protected, shall pay a civil
fine of not more than $500 for each such offense.
`(b) SUIT BY PRIVATE PERSONS- Any person may sue for the penalty established by
subsection (a), in which event one-half of the penalty shall be awarded to the
person suing and the remainder shall be awarded to the United States.
`Sec. 1327. Penalty for false representation
`Whoever knowingly makes a false representation materially affecting the rights
obtainable under this chapter for the purpose of obtaining registration of a design
under this chapter shall pay a penalty of not less than $500 and not more than
$1,000, and any rights or privileges that individual may have in the design under
this chapter shall be forfeited.
`Sec. 1328. Enforcement by Treasury and Postal Service
`(a) REGULATIONS- The Secretary of the Treasury and the United States Postal Service
shall separately or jointly issue regulations for the enforcement of the rights
set forth in section 1308 with respect to importation. Such regulations may require,
as a condition for the exclusion of articles from the United States, that the person
seeking exclusion take any one or more of the following actions:
`(1) Obtain a court order enjoining, or an order of the International Trade Commission
under section 337 of the Tariff Act of 1930 excluding, importation of the articles.
`(2) Furnish proof that the design involved is protected under this chapter and
that the importation of the articles would infringe the rights in the design under
this chapter.
`(3) Post a surety bond for any injury that may result if the detention or exclusion
of the articles proves to be unjustified.
`(b) SEIZURE AND FORFEITURE- Articles imported in violation of the rights set forth
in section 1308 are subject to seizure and forfeiture in the same manner as property
imported in violation of the customs laws. Any such forfeited articles shall be
destroyed as directed by the Secretary of the Treasury or the court, as the case
may be, except that the articles may be returned to the country of export whenever
it is shown to the satisfaction of the Secretary of the Treasury that the importer
had no reasonable grounds for believing that his or her acts constituted a violation
of the law.
`Sec. 1329. Relation to design patent law
`The issuance of a design patent under title 35, United States Code, for an original
design for an article of manufacture shall terminate any protection of the original
design under this chapter.
`Sec. 1330. Common law and other rights unaffected
`Nothing in this chapter shall annul or limit--
`(1) common law or other rights or remedies, if any, available to or held by any
person with respect to a design which has not been registered under this chapter;
or
`(2) any right under the trademark laws or any right protected against unfair
competition.
`Sec. 1331. Administrator; Office of the Administrator
`In this chapter, the `Administrator' is the Register of Copyrights, and the `Office
of the Administrator' and the `Office' refer to the Copyright Office of the Library
of Congress.
`Sec. 1332. No retroactive effect
`Protection under this chapter shall not be available for any design that has been
made public under section 1310(b) before the effective date of this chapter.'.
SEC. 503. CONFORMING AMENDMENTS.
(a) TABLE OF CHAPTERS- The table of chapters for title 17, United States Code,
is amended by adding at the end the following:
1301'.
(b) JURISDICTION OF DISTRICT COURTS OVER DESIGN ACTIONS- (1) Section 1338(c) of
title 28, United States Code, is amended by inserting `, and to exclusive rights
in designs under chapter 13 of title 17,' after `title 17'.
(2)(A) The section heading for section 1338 of title 28, United States Code, is
amended by inserting `designs,' after `mask works,'.
(B) The item relating to section 1338 in the table of sections at the beginning
of chapter 85 of title 28, United States Code, is amended by inserting `designs,'
after `mask works,'.
(c) PLACE FOR BRINGING DESIGN ACTIONS- (1) Section 1400(a) of title 28, United
States Code, is amended by inserting `or designs' after `mask works'.
(2) The section heading for section 1400 of title 28, United States Code, is amended
to read as follows:
`Patents and copyrights, mask works, and designs'.
(3) The item relating to section 1400 in the table of sections at the beginning
of chapter 87 of title 28, United States Code, is amended to read as follows:
`1400. Patents and copyrights, mask works, and designs.'.
(d) ACTIONS AGAINST THE UNITED STATES- Section 1498(e) of title 28, United States
Code, is amended by inserting `, and to exclusive rights in designs under chapter
13 of title 17,' after `title 17'.
SEC. 504. JOINT STUDY OF THE EFFECT OF THIS TITLE.
(a) IN GENERAL- Not later than 1 year after the date of the enactment of this Act,
and not later than 2 years after such date of enactment, the Register of Copyrights
and the Commissioner of Patents and Trademarks shall submit to the Committees on
the Judiciary of the Senate and the House of Representatives a joint report evaluating
the effect of the amendments made by this title.
(b) ELEMENTS FOR CONSIDERATION- In carrying out subsection (a), the Register of
Copyrights and the Commissioner of Patents and Trademarks shall consider--
(1) the extent to which the amendments made by this title has been effective in
suppressing infringement of the design of vessel hulls;
(2) the extent to which the registration provided for in chapter 13 of title 17,
United States Code, as added by this title, has been utilized;
(3) the extent to which the creation of new designs of vessel hulls have been
encouraged by the amendments made by this title;
(4) the effect, if any, of the amendments made by this title on the price of vessels
with hulls protected under such amendments; and
(5) such other considerations as the Register and the Commissioner may deem relevant
to accomplish the purposes of the evaluation conducted under subsection (a).
SEC. 505. EFFECTIVE DATE.
The amendments made by sections 502 and 503 shall take effect on the date of the
enactment of this Act and shall remain in effect until the end of the 2-year period
beginning on such date of enactment. No cause of action based on chapter 13 of
title 17, United States Code, as added by this title, may be filed after the end
of that 2-year period.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
END