[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1861 Received in Senate (RDS)]







104th CONGRESS
  2d Session
                                H. R. 1861


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 5, 1996

                                Received

                             July 12, 1996

       Read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 AN ACT


 
To make technical corrections in the Satellite Home Viewer Act of 1994 
         and other provisions of title 17, United States Code.

    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 ``Copyright Clarifications Act of 
1996''.

SEC. 2. SATELLITE HOME VIEWER ACT.

    The Satellite Home Viewer Act of 1994 (Public Law 103-369) is 
amended as follows:
            (1) Section 2(3)(A) is amended to read as follows:
                    ``(A) in clause (i) by striking `12 cents' and 
                inserting `17.5 cents per subscriber in the case of 
                superstations that as retransmitted by the satellite 
                carrier include any program which, if delivered by any 
                cable system in the United States, would be subject to 
                the syndicated exclusivity rules of the Federal 
                Communications Commission, and 14 cents per subscriber 
                in the case of superstations that are syndex-proof as 
                defined in section 258.2 of title 37, Code of Federal 
                Regulations; and' ''.
            (2) Section 2(4) is amended to read as follows:
            ``(4) Subsection (c) is amended--
                    ``(A) in paragraph (1)--
                            ``(i) by striking `until December 31, 
                        1992,';
                            ``(ii) by striking `(2), (3) or (4)' and 
                        inserting `(2) or (3)'; and
                            ``(iii) by striking the second sentence;
                    ``(B) in paragraph (2)--
                            ``(i) in subparagraph (A) by striking `July 
                        1, 1991' and inserting `July 1, 1996'; and
                            ``(ii) in subparagraph (D) by striking 
                        `December 31, 1994' and inserting `December 31, 
                        1999, or in accordance with the terms of the 
                        agreement, whichever is later'; and
                    ``(C) in paragraph (3)--
                            ``(i) in subparagraph (A) by striking 
                        `December 31, 1991' and inserting `January 1, 
                        1997';
                            ``(ii) by amending subparagraph (B) to read 
                        as follows:
                    `(B) Establishment of royalty fees.--In determining 
                royalty fees under this paragraph, the copyright 
                arbitration royalty panel appointed under chapter 8 
                shall establish fees for the retransmission of network 
                stations and superstations that most clearly represent 
                the fair market value of secondary transmissions. In 
                determining the fair market value, the panel shall base 
                its decision on economic, competitive, and programming 
                information presented by the parties, including--
                            `(i) the competitive environment in which 
                        such programming is distributed, the cost of 
                        similar signals in similar private and 
                        compulsory license marketplaces, and any 
                        special features and conditions of the 
                        retransmission marketplace;
                            `(ii) the economic impact of such fees on 
                        copyright owners and satellite carriers; and
                            `(iii) the impact on the continued 
                        availability of secondary transmissions to the 
                        public.'; and
                            ``(iii) in subparagraph (C), by inserting 
                        `or July 1, 1997, whichever is later' after 
                        `section 802(g)'.''.
            (3) Section 2(5)(A) is amended to read as follows:
                    ``(A) in paragraph (5)(C) by striking `the date of 
                the enactment of the Satellite Home Viewer Act of 1988' 
                and inserting `November 16, 1988'; and''.

SEC. 3. COPYRIGHT IN RESTORED WORKS.

    Section 104A of title 17, United States Code, is amended as 
follows:
            (1) Subsection (d)(3)(A) is amended to read as follows:
            ``(3) Existing derivative works.--(A) In the case of a 
        derivative work that is based upon a restored work and is 
        created--
                    ``(i) before the date of the enactment of the 
                Uruguay Round Agreements Act, if the source country of 
                the restored work is an eligible country on such date, 
                or
                    ``(ii) before the date of adherence or 
                proclamation, if the source country of the restored 
                work is not an eligible country on such date of 
                enactment,a reliance party may continue to exploit that 
                derivative work for the duration of the restored 
                copyright if the reliance party pays to the owner of 
                the restored copyright reasonable compensation for 
                conduct which would be subject to a remedy for 
                infringement but for the provisions of this 
                paragraph.''.
            (2) Subsection (e)(1)(B)(ii) is amended by striking the 
        last sentence.
            (3) Subsection (h)(2) is amended to read as follows:
            ``(2) The `date of restoration' of a restored copyright is 
        the later of--
                    ``(A) January 1, 1996, the date on which the 
                Agreement on Trade-Related Aspects of Intellectual 
                Property referred to in section 101(d)(15) of the 
                Uruguay Round Agreements Act enters into force with 
                respect to the United States, if the source country of 
                the restored work is a nation adhering to the Berne 
                Convention or a WTO member country on such date, or
                    ``(B) the date of adherence or proclamation, in the 
                case of any other source country of the restored 
                work.''.
            (4) Subsection (h)(3) is amended to read as follows:
            ``(3) The term `eligible country' means a nation, other 
        than the United States, that, after the date of the enactment 
        of the Uruguay Round Agreements Act--
                    ``(A) becomes a WTO member,
                    ``(B) is or becomes a member of the Berne 
                Convention, or
                    ``(C) becomes subject to a proclamation under 
                subsection (g).''.

SEC. 4. LICENSES FOR NONEXEMPT SUBSCRIPTION TRANSMISSIONS.

    Section 114(f) of title 17, United States Code, is amended--
            (1) in paragraph (1), by inserting ``, or ending 30 days 
        after the Librarian issues and publishes in the Federal 
        Register an order adopting or rejecting the report of the 
        copyright arbitration royalty panel, if such panel is 
        convened'' after ``December 31, 2000''; and
            (2) in paragraph (2), by striking ``and publish in the 
        Federal Register''.

SEC. 5. ROYALTY PAYABLE UNDER COMPULSORY LICENSE.

    Section 115(c)(3)(D) of title 17, United States Code, is amended by 
striking ``and publish in the Federal Register''.

SEC. 6. NEGOTIATED LICENSE FOR JUKEBOXES.

    Section 116 of title 17, United States Code, is amended--
            (1) by amending subsection (b)(2) to read as follows:
            ``(2) Arbitration.--Parties not subject to such a 
        negotiation may determine the result of the negotiation by 
        arbitration in accordance with the provisions of chapter 8.''; 
        and
            (2) by adding at the end the following new subsection:
    ``(d) Definitions.--As used in this section, the following terms 
mean the following:
            ``(1) A `coin-operated phonorecord player' is a machine or 
        device that--
                    ``(A) is employed solely for the performance of 
                nondramatic musical works by means of phonorecords upon 
                being activated by the insertion of coins, currency, 
                tokens, or other monetary units or their equivalent;
                    ``(B) is located in an establishment making no 
                direct or indirect charge for admission;
                    ``(C) is accompanied by a list which is comprised 
                of the titles of all the musical works available for 
                performance on it, and is affixed to the phonorecord 
                player or posted in the establishment in a prominent 
                position where it can be readily examined by the 
                public; and
                    ``(D) affords a choice of works available for 
                performance and permits the choice to be made by the 
                patrons of the establishment in which it is located.
            ``(2) An `operator' is any person who, alone or jointly 
        with others--
                    ``(A) owns a coin-operated phonorecord player;
                    ``(B) has the power to make a coin-operated 
                phonorecord player available for placement in an 
                establishment for purposes of public performance; or
                    ``(C) has the power to exercise primary control 
                over the selection of the musical works made available 
                for public performance on a coin-operated phonorecord 
                player.''.

SEC. 7. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER PROGRAMS.

    Section 117 of title 17, United States Code, is amended as follows:
    (1) Strike ``Notwithstanding'' and insert the following:
    ``(a) Making of Additional Copy or Adaptation by Owner of Copy.--
Notwithstanding''.
    (2) Strike ``Any exact'' and insert the following:
    ``(b) Lease, Sale, or Other Transfer of Additional Copy or 
Adaptation.--Any exact''.
    (3) Add 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, provided that--
            ``(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 term `maintenance' of a machine means servicing 
        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 term `repair' of a machine means restoring it to 
        the state of working in accordance with its original 
        specifications and any changes to those specifications 
        authorized for that machine.''.

SEC. 8. PUBLIC BROADCASTING COMPULSORY LICENSE.

    Section 118 of title 17, United States Code, is amended as follows:
            (1) Subsection (b) is amended by striking paragraph (1) and 
        redesignating paragraphs (2) and (3) as paragraphs (1) and (2), 
        respectively.
            (2) Subsection (b)(2) (as redesignated by paragraph (1) of 
        this section) is amended by striking ``(2)'' each place it 
        appears and inserting ``(1)''.
            (3) Subsection (e) is amended to read as follows:
    ``(e)(1) Except as expressly provided in this subsection, this 
section shall not apply to works other than those specified in 
subsection (b).
    ``(2) Owners of copyright in nondramatic literary works and public 
broadcasting entities may, during the course of voluntary negotiations, 
agree among themselves, respectively, as to the terms and rates of 
royalty payments without liability under the antitrust laws. Any such 
terms and rates of royalty payments shall be effective upon being filed 
in the Copyright Office, in accordance with regulations that the 
Register of Copyrights shall prescribe.''.

SEC. 9. REGISTRATION AND INFRINGEMENT ACTIONS.

    Section 411(b)(1) of title 17, United States Code, is amended to 
read as follows:
            ``(1) serves notice upon the infringer, not less than 48 
        hours before such fixation, identifying the work and the 
        specific time and source of its first transmission, and 
        declaring an intention to secure copyright in the work; and''.

SEC. 10. COPYRIGHT OFFICE FEES.

    (a) Fee Increases.--Section 708(b) of title 17, United States Code, 
is amended to read as follows:
    ``(b) In calendar year 1996 and in any subsequent calendar year, 
the Register of Copyrights, by regulation, may increase the fees 
specified in subsection (a) in the following manner:
            ``(1) The Register shall conduct a study of the costs 
        incurred by the Copyright Office for the registration of 
        claims, the recordation of documents, and the provision of 
        services. The study shall also consider the timing of any 
        increase in fees and the authority to use such fees consistent 
        with the budget.
            ``(2) The Register shall have discretion to increase fees 
        up to the reasonable costs incurred by the Copyright Office for 
        the services described in paragraph (1) plus a reasonable 
        inflation adjustment to account for any estimated increase in 
        costs.
            ``(3) Any newly established fee based on paragraph (2) 
        shall be rounded off to the nearest dollar, or for a fee less 
        than $12, rounded off to the nearest 50 cents.
            ``(4) The fees shall be fair and equitable and give due 
        consideration to the objectives of the copyright system.
            ``(5) If upon completion of the study, the Register 
        determines that the fees should be increased, the Register 
        shall prepare a proposed fee schedule and submit the schedule 
        with the accompanying economic analysis to the Congress. The 
        fees proposed by the Register may be instituted after the end 
        of 120 days after the schedule is submitted to the Congress 
        unless, within that 120-day period, a law is enacted stating in 
        substance that the Congress does not approve the schedule.''.
    (b) Deposit of Fees.--Section 708(d) of such title is amended to 
read as follows:
    ``(d)(1) Except as provided in paragraph (2), all fees received 
under this section shall be deposited by the Register of Copyrights in 
the Treasury of the United States and shall be credited to the 
appropriations for necessary expenses of the Copyright Office. Such 
fees that are collected shall remain available until expended. The 
Register may, in accordance with regulations that he or she shall 
prescribe, refund any sum paid by mistake or in excess of the fee 
required by this section.
    ``(2) In the case of fees deposited against future services, the 
Register of Copyrights shall request the Secretary of the Treasury to 
invest in interest-bearing securities in the United States Treasury any 
portion of the fees that, as determined by the Register, is not 
required to meet current deposit account demands. Funds shall be 
invested in securities that permit funds to be available to the 
Copyright Office at all times if they are determined to be necessary to 
meet current deposit account demands. Such investments shall be in 
public debt securities with maturities suitable to the needs of the 
fund, as determined by the Register of Copyrights, and bearing interest 
at rates determined by the Secretary of the Treasury, taking into 
consideration current market yields on outstanding marketable 
obligations of the United States of comparable maturities.
    ``(3) The income on such investments shall be deposited in the 
Treasury of the United States and shall be credited to the 
appropriations for necessary expenses of the Copyright Office.''.

SEC. 11. COPYRIGHT ARBITRATION ROYALTY PANELS.

    (a) Establishment and Purpose.--Section 801 of title 17, United 
States Code, is amended--
            (1) in subsection (b)(1) by striking ``and 116'' in the 
        first sentence and inserting ``116, and 119'';
            (2) in subsection (c) by inserting after ``panel'' at the 
        end of the sentence the following:
``, including--
            ``(1) authorizing the distribution of those royalty fees 
        collected under sections 111, 119, and 1005 that the Librarian 
        has found are not subject to controversy; and
            ``(2) accepting or rejecting royalty claims filed under 
        sections 111, 119, and 1007 on the basis of timeliness or the 
        failure to establish the basis for a claim''; and
            (3) by amending subsection (d) to read as follows:
    ``(d) Support and Reimbursement of Arbitration Panels.--The 
Librarian of Congress, upon the recommendation of the Register of 
Copyrights, shall provide the copyright arbitration royalty panels with 
the necessary administrative services related to proceedings under this 
chapter, and shall reimburse the arbitrators at such intervals and in 
such manner as the Librarian shall provide by regulation. Each such 
arbitrator is an independent contractor acting on behalf of the United 
States, and shall be paid pursuant to a signed agreement between the 
Library of Congress and the arbitrator. Payments to the 
arbitrators shall be considered costs incurred by the Library of 
Congress and the Copyright Office for purposes of section 802(h)(1).''.
    (b) Proceedings.--Section 802(h)(1) of title 17, United States 
Code, is amended--
            (1) by amending the heading to read ``Deduction of costs of 
        library of congress and copyright office from royalty fees.--
        '';
            (2) in the first sentence by inserting ``to support 
        distribution proceedings'' after ``Copyright Office''; and
            (3) by amending the third sentence to read as follows: ``In 
        ratemaking proceedings, the Librarian of Congress and the 
        Copyright Office may assess their reasonable costs directly to 
        the parties to the most recent relevant arbitration proceeding, 
        50 percent of the costs to the parties who would receive 
        royalties from the royalty rate adopted in the proceeding and 
        50 percent of the costs to the parties who would pay the 
        royalty rate so adopted, subject to the discretion of the 
        arbitrators to assess costs under subsection (c).''.

SEC. 12. DIGITAL AUDIO RECORDING DEVICES AND MEDIA.

    Section 1007(b) of title 17, United States Code, is amended by 
striking ``Within 30 days after'' in the first sentence and inserting 
``After''.

SEC. 13. TREATMENT OF PRE-1978 PUBLICATION OF SOUND RECORDINGS.

    Section 303 of title 17, United States Code, is amended--
            (1) by striking ``Copyright'' and inserting ``(a) 
        Copyright''; and
            (2) by adding at the end the following:
    ``(b) The distribution before January 1, 1978, of a phonorecord 
shall not for any purpose constitute a publication of the musical work 
embodied therein.''.

SEC. 14. CONFORMING AMENDMENT.

    Paragraph (5) of section 4 of the Digital Performance Right in 
Sound Recordings Act of 1995 is redesignated as paragraph (4).

SEC. 15. EFFECTIVE DATES.

    (a) In General.--Except as provided in subsection (b), the 
amendments made by this Act shall take effect on the date of the 
enactment of this Act.
    (b) Satellite Home Viewer Act.--The amendments made by section 1 
shall be effective as if enacted as part of the Satellite Home Viewer 
Act of 1994 (Public Law 103-369).

            Passed the House of Representatives June 4, 1996.

            Attest:

                                                ROBIN H. CARLE,

                                                                 Clerk.