[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 2103 Introduced in Senate (IS)]







104th CONGRESS
  2d Session
                                S. 2103

 To amend title 17, United States Code, to protect vessel hull designs 
       against unauthorized duplication, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 20, 1996

  Mr. Breaux (for himself, Mr. Faircloth, Mr. Heflin, Mr. Inhofe, Mr. 
  Helms, and Mr. Mack) introduced the following bill; which was read 
          twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend title 17, United States Code, to protect vessel hull designs 
       against unauthorized duplication, 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 ``Boat Protection Act of 1996''.

SEC. 2. PROTECTION OF VESSEL HULL DESIGNS.

    Title 17, United States Code, is amended by adding at the end the 
following new chapter:

            ``CHAPTER 12--PROTECTION OF VESSEL HULL DESIGNS

``Sec.
``1201. Definitions.
``1202. Subject matter of protection.
``1203. Ownership and transfer.
``1204. Duration of protection.
``1205. Exclusive rights in plugs or molds.
``1206. Limitation on exclusive rights: reverse engineering; first 
                            sale.
``1207. Limitation on exclusive rights: innocent infringement.
``1208. Registration of claims of protection.
``1209. Plug or mold notice.
``1210. Enforcement of exclusive rights.
``1211. Remedies for infringement.
``1212. Relation to other laws.
``Sec. 1201. Definitions
    ``As used in this chapter--
            ``(1) a `vessel hull' shall have the meaning as such term 
        is defined under regulations prescribed by the Register of 
        Copyrights;
            ``(2) 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;
            ``(3) 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;
            ``(4) a plug or mold is `fixed' in a vessel hull when its 
        embodiment in the vessel hull, by or under the authority of the 
        owner of the plug or mold, is sufficiently permanent or stable 
        to permit the vessel hull to be perceived, reproduced, or 
        otherwise communicated for a period of more than transitory 
        duration;
            ``(5) a plug or mold is `original' if it is the independent 
        creation of an author who did not copy it from another source;
            ``(6) to `commercially exploit' a plug or mold is to sell, 
        offer for sale after the plug or mold is fixed in a vessel 
        hull, or otherwise distribute to the public for profit vessel 
        hulls embodying the plug or mold;
            ``(7) the `owner' of a plug or mold is the author of the 
        plug or mold, the legal representatives of a deceased author or 
        of an author under a legal incapacity, the employer of an 
        author who created the plug or mold for the employer in the 
        case of a work made within the scope of the author's 
        employment, or a person to whom the rights of the author or of 
        such employer are transferred in accordance with this chapter;
            ``(8) an `innocent purchaser' is a person who purchases a 
        vessel hull or a product in which a vessel hull is contained in 
        good faith and without having notice of protection with respect 
        to that vessel hull or product;
            ``(9) having `notice of protection' means having actual 
        knowledge that, or reasonable grounds to believe that, a plug 
        or mold fixed in a vessel hull is protected under this chapter; 
        and
            ``(10) an `infringing vessel hull' is a vessel hull which 
        is made, imported, or distributed in violation of the exclusive 
        rights of the owner of a plug or mold under this chapter.
``Sec. 1202. Subject matter of protection
    ``(a)(1) An original plug or mold fixed in a vessel hull is 
eligible for protection under this chapter if--
            ``(A) on the date on which the plug or mold is registered 
        under section 1208, or the date on which the plug or mold is 
        first commercially exploited, whichever occurs first, the owner 
        of the plug or mold is--
                    ``(i) a national or domiciliary of the United 
                States;
                    ``(ii) a national, domiciliary, or sovereign 
                authority of a foreign nation that is party to a treaty 
                affording protection to plugs or molds to which the 
                United States is also a party; or
                    ``(iii) a stateless person, wherever that person 
                may be domiciled;
            ``(B) the plug or mold is first commercially exploited in 
        the United States; or
            ``(C) the plug or mold comes within the scope of a 
        Presidential proclamation issued under paragraph (2).
    ``(2) Whenever the President finds that a foreign nation extends, 
to plugs or molds of owners who are nationals or domiciliaries of the 
United States or to plugs or molds on the date on which the plugs or 
molds are registered under section 1208, or the date on which the plugs 
or molds are first commercially exploited, whichever occurs first, 
protection--
            ``(A) on substantially the same basis as that on which the 
        foreign nation extends protection to plugs or molds of its own 
        nationals and domiciliaries and plugs or molds first 
        commercially exploited in that nation;
            ``(B) on substantially the same basis as provided in this 
        chapter,
the President may by proclamation extend protection under this chapter 
to plugs or molds--
                    ``(i) of owners who are, on the date on which the 
                plugs or molds are registered under section 1208, or 
the date on which the plugs or molds are first commercially exploited, 
whichever occurs first, nationals, domiciliaries, or sovereign 
authorities of that nation; or
                    ``(ii) which are first commercially exploited in 
                that nation.
    ``(b) Protection under this chapter shall not be available for a 
plug or mold that--
            ``(1) is not original; or
            ``(2) consists of designs that are staple, commonplace, or 
        familiar in the vessel manufacturing industry, or variations of 
        such designs, combined in a way that is not original.
    ``(c) In no case does protection under this chapter for a plug or 
mold extend to any idea, procedure, process, system, method of 
operation, concept, principle, or discovery, regardless of the form of 
which it is described, explained, illustrated, or embodied in the plug 
or mold.
``Sec. 1203. Ownership and transfer
    ``(a) The exclusive rights in a plug or mold subject to protection 
under the chapter shall vest in the owner of the plug or mold.
    ``(b) The exclusive rights in a plug or mold registered under 
section 1208, or a plug or mold for which an application for 
registration has been or is eligible to be filed under section 1208, 
may be--
            ``(1) transferred in whole or in part by any means of 
        conveyance or by operation of law; and
            ``(2) bequeathed by will or pass as personal property by 
        the applicable laws of intestate succession.
    ``(c) In any case in which conflicting transfer of the exclusive 
rights in a plug or mold are made, the transfer first executed shall be 
void as against a subsequent transfer which is made for a valuable 
consideration and without notice of the first transfer, unless the 
first transfer is recorded in the Copyright Office within 3 months 
after the date on which it is executed, but in no case later than the 
day before the date of such subsequent transfer.
    ``(d) Plugs or molds prepared by an officer or employee of the 
United States Government as part of that person's official duties are 
not protected under this chapter, but the United States Government is 
not precluded from receiving and holding exclusive rights in plugs or 
molds transferred to the Government under subsection (b).
``Sec. 1204. Duration of protection
    ``(a) The protection provided for a plug or mold under this chapter 
shall commence on the date on which the plug or mold is registered 
under section 1208, or the date on which the plug or mold is first 
commercially exploited, whichever occurs first.
    ``(b) Subject to the provisions of this chapter, the protection 
provided under this chapter to a plug or mold shall continue for a term 
of 10 years beginning on the date on which such protection commences 
under subsection (a).
``Sec. 1205. Exclusive rights in plugs or molds
    ``Subject to the other provisions of this chapter, the owner of a 
plug or mold has the exclusive rights to do and to authorize any of the 
following:
            ``(1) To reproduce the plug or mold by optical, electronic, 
        or any other means.
            ``(2) To import or distribute a vessel hull in which the 
        plug or mold is embodied.
            ``(3) To induce or knowingly to cause another person to do 
        any of the acts described in paragraphs (1) and (2).
``Sec. 1206. Limitation on exclusive rights: reverse engineering; first 
              sale
    ``(a) Notwithstanding the provisions of section 1205(1), it is not 
an infringement of the exclusive rights of the owner of a plug or mold 
to reproduce the work solely for the purpose of teaching, analyzing, or 
evaluating the concepts or techniques embodied in the plug or mold or 
the design or organization of components used in the plug or mold.
    ``(b) Notwithstanding the provisions of section 1205(2), the owner 
of a particular vessel hull lawfully made under this chapter, or any 
person authorized by such owner, is entitled, without the authority of 
the owner of the plug or mold, to sell or otherwise dispose of that 
vessel hull.
``Sec. 1207. Limitation on exclusive rights: innocent infringement
    ``(a) Notwithstanding any other provision of this chapter, an 
innocent purchaser of an infringing vessel hull--
            ``(1) shall incur no liability under this chapter with 
        respect to the distribution of units of the infringing vessel 
        hull that occurred before that innocent purchaser had notice of 
        protection with respect to that vessel hull; and
            ``(2) shall be liable only for a reasonable royalty on each 
        unit of the infringing vessel hull that the innocent purchaser 
        distributed after having notice of protection with respect to 
        that vessel hull.
    ``(b) The amount of the royalty referred to in subsection (a)(2) 
shall be determined--
            ``(1) by voluntary negotiation between the parties, 
        mediation, or binding arbitration; or
            ``(2) by the court in a civil action for infringement, if 
        the parties do not resolve the issue.
    ``(c) The immunity from liability and limitation on liability 
referred to in subsection (a) shall apply to any person who directly or 
indirectly purchases an infringing vessel hull from an innocent 
purchaser.
    ``(d) The provisions of subsections (a) and (b) apply only with 
respect to units of an infringing vessel hull that an innocent 
purchaser purchased before having notice of protection with respect to 
that vessel hull.
``Sec. 1208. Registration of claims of protection
    ``(a) Protection of a plug or mold under this chapter shall 
terminate if application for registration of a claim of protection in 
the plug or mold is not made as provided by this chapter within 2 years 
after the date on which the plug or mold is first commercially 
exploited.
    ``(b) The Register of Copyrights shall be responsible for all 
administrative functions and duties under this chapter. Except for 
section 708, the provisions of chapter 7 of this title relating to the 
general responsibilities, organization, regulatory authority, actions, 
records, and publications of the Copyright Office shall apply to this 
chapter, except that the Register of Copyrights may make such changes 
as may be necessary in applying those provisions to this chapter.
    ``(c) The application for registration of a plug or mold shall be 
made on a form prescribed by the Register of Copyrights and shall 
include any information regarded by the Register of Copyrights as 
bearing upon the preparation or identification of the plug or mold, the 
existence or duration of protection, or ownership of the plug or mold.
    ``(d) The Register of Copyrights shall by regulation set reasonable 
fees for the filing of applications to register claims of protection in 
plugs or molds under this chapter, and for other services relating to 
the administration of this chapter or the rights under this chapter, 
taking into consideration the cost of providing those services, the 
benefits of a public record, and statutory fee schedules under this 
title. The Register shall also specify the identifying material to be 
deposited in connection with the claim for registration.
    ``(e) If the Register of Copyrights, after examining an application 
for registration, determines, in accordance with the provisions of this 
chapter, that the application relates to a plug or mold which warrants 
protection under this chapter, then the Register shall register the 
claim and issue to the applicant a certificate of registration of the 
claim under the seal of the Copyright Office. The effective date of 
registration of a claim of protection shall be the date on which an 
application, deposit, and fee, which are determined by the Register of 
Copyrights or by a court of competent jurisdiction to be acceptable for 
registration, have all been received in the Copyright Office.
    ``(f) In any action for infringement under this chapter, the 
certificate of registration of a plug or mold shall constitute prima 
facie evidence--
            ``(1) of the facts stated in the certificate; and
            ``(2) that the applicant issued the certificate has met the 
        requirements of this chapter, and the regulations issued under 
        this chapter, with respect to the registration of claims.
    ``(g) Any applicant for registration under this section who is 
dissatisfied with the refusal of the Register of Copyrights to issue a 
certificate of registration under this section may seek judicial review 
of that refusal by bringing an action for such review in an appropriate 
United States district court, in accordance with chapter 7 of title 5, 
not later than 60 days after the refusal. The failure of the Register 
of Copyrights to issue a certificate of registration within 3 months 
after an application for registration is filed shall be deemed to be a 
refusal to issue a certificate of registration for purposes of this 
subsection and section 1210(c).
``Sec. 1209. Plug or mold notice
    ``(a) The owner of a plug or mold provided protection under this 
chapter may affix notice to the plug or mold or to the vessel hull 
embodying the plug or mold in such manner and location as to give 
reasonable notice of such protection. The Register of Copyrights shall 
prescribe by regulation, as examples, specific methods of affixation 
and positions of notice for purposes of this section, but these 
specifications shall not be considered exhaustive. The affixation of 
such notice is not a condition of protection under this chapter but 
shall constitute prima facie evidence of notice of protection.
    ``(b) The notice referred to in subsection (a) shall consist of--
            ``(1) the words `plug or mold', or the letters PM in a 
        circle;
            ``(2) the year in which the plug or mold was first fixed in 
        a vessel hull; and
            ``(3) the name of the owner or owners of the plug or mold 
        or an abbreviation by which the name is recognized or is 
        generally known.
``Sec. 1210. Enforcement of exclusive rights
    ``(a) Except as otherwise provided by this chapter, any person who 
violates any of the exclusive rights of the owner of a plug or mold 
under this chapter shall be liable as an infringer of such rights.
    ``(b) The owner of a plug or mold protected under this chapter 
shall be entitled to institute a civil action for infringement after a 
certificate of registration of a claim in that plug or mold is issued 
under section 1208.
    ``(c) In any case in which an application for registration and the 
required deposit and fee have been received in the Copyright Office in 
proper form and registration of the plug or mold has been refused, the 
applicant is entitled to institute a civil action for infringement 
under this chapter if notice of the action, together with a copy of the 
complaint, is served on the Register of Copyrights, in accordance with 
the Federal Rules of Civil Procedure. The Register may, at his or her 
option, become a party to the action with respect to the issue of 
whether the claim is eligible for registration by entering an 
appearance within 60 days after such service, but the failure of the 
Register to become a party to the action shall not deprive the court of 
jurisdiction to determine that issue.
    ``(d)(1) The Secretary of the Treasury and the United States Postal 
Service shall separately or jointly issue regulations for the 
enforcement of the right to import set forth in section 1205. These 
regulations may require, as a condition for the exclusion of articles 
from the United States, that the person seeking exclusion--
            ``(A) 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; or
            ``(B)(i) furnish proof that--
                    ``(I) the plug or mold involved is protected under 
                this chapter; and
                    ``(II) the importation of the articles would 
                infringe the rights in the plug or mold under this 
                chapter; and
            ``(ii) post a surety bond for any injury that may result if 
        the detention or exclusion of the articles proves to be 
        unjustified.
    ``(2) Articles imported in violation of the right to import set 
forth in section 1205 are subject to seizure and forfeiture in the same 
manner as property imported in violation of the customs laws. Any such 
forfeited article 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. 1211. Remedies for infringement
    ``(a) Any court having jurisdiction of a civil action arising under 
this chapter may grant temporary and permanent injunctions on such 
terms as the court may determine reasonable to prevent or restrain 
infringement of the exclusive rights in a plug or mold under this 
chapter.
    ``(b) Upon finding for the owner of the plug or mold, the court 
shall award the owner actual damages suffered by the owner as a result 
of the infringement. The court shall also award the owner of the 
infringer's profits that are attributable to the infringement and are 
not taken into account in computing the award of actual damages. In 
establishing the infringer's profits, the owner of the plug or mold is 
required to present proof only of the infringer's gross revenue, and 
the infringer is required to prove his or her deductible expenses and 
the elements of profit attributable to factors other than the plug or 
mold.
    ``(c) At any time before final judgment is rendered, the owner of 
the plug or mold may elect, instead of actual damages and profits as 
provided by subsection (b), an award of statutory damages for all 
infringements involved in the action, with respect to any 1 plug or 
mold for which any 1 infringer is liable individually, or for which any 
2 or more infringers are liable jointly and severally, in an amount not 
more than $250,000 as the court considers just.
    ``(d) In any action for infringement under this chapter, the court 
in its discretion may allow the recovery of full costs, including 
reasonable attorneys' fees, to the prevailing party.
    ``(e) An action for infringement under this chapter shall not be 
maintained unless the action is commenced within 3 years after the 
claim accrues.
    ``(f) As part of the final judgment or decree, the court may order 
the destruction or other disposition of any infringing vessel hulls, 
and any plugs, molds, or other articles by means of which such vessel 
hulls may be reproduced.
``Sec. 1212. Relation to other laws
    ``(a) Nothing in this chapter shall affect any right or remedy held 
by any person under chapters 1 through 11 of this title, or under title 
35.
    ``(b) Except as provided in section 1208(b) of this title, 
references to `this title' or `title 17' in chapters 1 through 11 of 
this title shall be deemed not to apply to this chapter.
    ``(c) The provisions of this chapter shall preempt the laws of any 
State to the extent those laws provide any rights or remedies with 
respect to a plug or mold which are equivalent to those provided by 
this chapter, except that such preemption shall be effective only with 
respect to actions filed on or after January 1, 1998.
    ``(d) The provision of sections 1338, 1400(a), and 1498 (b) and (c) 
of title 28 shall apply with respect to exclusive rights in plugs or 
molds under this chapter.''.

SEC. 3. TECHNICAL AMENDMENT.

    The table of chapters of title 17, United States Code, is amended 
by adding at the end thereof the following new item:

``12. Protection of Vessel Hulls............................   1201.''.

SEC. 4. EFFECTIVE DATE.

    (a) The amendments made by this Act shall take effect on January 1, 
1997.
    (b) Subject to paragraph (2) of this subsection, protection shall 
be available under chapter 12 of title 17, United States Code, as added 
by section 2 of this Act, to any plug or mold fixed in a vessel hull 
that was first commercially exploited on or after January 1, 1996, and 
before January 1, 1997, if a claim of protection in the plug or mold is 
registered in the Copyright Office before January 1, 1998, under 
section 1208 of title 17, United States Code, as added by section 2 of 
this Act.
                                 <all>