[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2281 Placed on Calendar Senate (PCS)]

                                                       Calendar No. 535

105th CONGRESS

  2d Session

                               H. R. 2281

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                            August 31, 1998

            Received; read twice and placed on the calendar
                                                       Calendar No. 535
105th CONGRESS
  2d Session
                                H. R. 2281


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            August 31, 1998

            Received; read twice and placed on the calendar

_______________________________________________________________________

                                 AN ACT


 
     To amend title 17, United States Code, to implement the World 
 Intellectual Property Organization Copyright Treaty and Performances 
             and Phonograms Treaty, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Digital Millennium Copyright Act''.

SEC. 2. TABLE OF CONTENTS.

Sec. 1. Short title.
Sec. 2. Table of contents.
            TITLE I--WIPO COPYRIGHT TREATIES IMPLEMENTATION

Sec. 101. Short title.
Sec. 102. Technical amendments.
Sec. 103. Copyright protection systems and copyright management 
                            information.
Sec. 104. Development and implementation of technological protection 
                            measures.
Sec. 105. Evaluation of impact of copyright law and amendments on 
                            electronic commerce and technological 
                            development.
Sec. 106. Effective date.
      TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

Sec. 201. Short title.
Sec. 202. Limitations on liability for copyright infringement.
Sec. 203. Effective date.
      TITLE III-COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

Sec. 301. Short title.
Sec. 302. Limitations on exclusive rights; computer programs.
                   TITLE IV--MISCELLANEOUS PROVISIONS

   Subtitle A--Establishment of the Under Secretary of Commerce for 
                      Intellectual Property Policy

Sec. 401. Under Secretary of Commerce for Intellectual Property Policy.
Sec. 402. Relationship with existing authorities.
                     Subtitle B--Related Provisions

Sec. 411. Ephemeral recordings.
Sec. 412. Limitations on exclusive rights; distance education.
Sec. 413. Exemption for libraries and archives.
Sec. 414. Fair use.
Sec. 415. Scope of exclusive rights in sound recordings; ephemeral 
                            recordings.
Sec. 416. Assumption of contractual obligations related to transfers of 
                            rights in motion pictures.
Sec. 417. First sale clarification.
           TITLE V--COLLECTIONS OF INFORMATION ANTIPIRACY ACT

Sec. 501. Short title.
Sec. 502. Misappropriation of collections of information.
Sec. 503. Conforming amendment.
Sec. 504. Conforming amendments to title 28, United States Code.
Sec. 505. Effective date.
            TITLE VI--PROTECTION OF CERTAIN ORIGINAL DESIGNS

Sec. 601. Short title.
Sec. 602. Protection of certain original designs.
Sec. 603. Conforming amendments.
Sec. 604. Effective date.

            TITLE I--WIPO COPYRIGHT TREATIES IMPLEMENTATION

SEC. 101. SHORT TITLE.

    This title may be cited as the ``WIPO Copyright Treaties 
Implementation Act''.

SEC. 102. TECHNICAL AMENDMENTS.

    (a) Definitions.--Section 101 of title 17, United States Code, is 
amended--
            (1) by striking the definition of ``Berne Convention 
        work'';
            (2) in the definition of ``The `country of origin' of a 
        Berne Convention work''--
                    (A) by striking ``The `country of origin' of a 
                Berne Convention work, for purposes of section 411, is 
                the United States if'' and inserting ``For purposes of 
                section 411, a work is a `United States work' only 
                if'';
                    (B) in paragraph (1)--
                            (i) in subparagraph (B) by striking 
                        ``nation or nations adhering to the Berne 
                        Convention'' and inserting ``treaty party or 
                        parties'';
                            (ii) in subparagraph (C) by striking ``does 
                        not adhere to the Berne Convention'' and 
                        inserting ``is not a treaty party''; and
                            (iii) in subparagraph (D) by striking 
                        ``does not adhere to the Berne Convention'' and 
                        inserting ``is not a treaty party''; and
                    (C) in the matter following paragraph (3) by 
                striking ``For the purposes of section 411, the 
                `country of origin' of any other Berne Convention work 
                is not the United States.'';
            (3) by inserting after the definition of ``fixed'' the 
        following:
            ``The `Geneva Phonograms Convention' is the Convention for 
        the Protection of Producers of Phonograms Against Unauthorized 
        Duplication of Their Phonograms, concluded at Geneva, 
        Switzerland, on October 29, 1971.'';
            (4) by inserting after the definition of ``including'' the 
        following:
            ``An `international agreement' is--
                    ``(1) the Universal Copyright Convention;
                    ``(2) the Geneva Phonograms Convention;
                    ``(3) the Berne Convention;
                    ``(4) the WTO Agreement;
                    ``(5) the WIPO Copyright Treaty;
                    ``(6) the WIPO Performances and Phonograms Treaty; 
                and
                    ``(7) any other copyright treaty to which the 
                United States is a party.'';
            (5) by inserting after the definition of ``transmit'' the 
        following:
            ``A `treaty party' is a country or intergovernmental 
        organization other than the United States that is a party to an 
        international agreement.'';
            (6) by inserting after the definition of ``widow'' the 
        following:
            ``The `WIPO Copyright Treaty' is the WIPO Copyright Treaty 
        concluded at Geneva, Switzerland, on December 20, 1996.'';
            (7) by inserting after the definition of ``The `WIPO 
        Copyright Treaty''' the following:
            ``The `WIPO Performances and Phonograms Treaty' is the WIPO 
        Performances and Phonograms Treaty concluded at Geneva, 
        Switzerland, on December 20, 1996.''; and
            (8) by inserting after the definition of ``work made for 
        hire'' the following:
            ``The terms `WTO Agreement' and `WTO member country' have 
        the meanings given those terms in paragraphs (9) and (10), 
        respectively, of section 2 of the Uruguay Round Agreements 
        Act.''.
    (b) Subject Matter of Copyright; National Origin.--Section 104 of 
title 17, United States Code, is amended--
            (1) in subsection (b)--
                    (A) in paragraph (1) by striking ``foreign nation 
                that is a party to a copyright treaty to which the 
                United States is also a party'' and inserting ``treaty 
                party'';
                    (B) in paragraph (2) by striking ``party to the 
                Universal Copyright Convention'' and inserting ``treaty 
                party'';
                    (C) by redesignating paragraph (5) as paragraph 
                (6);
                    (D) by redesignating paragraph (3) as paragraph (5) 
                and inserting it after paragraph (4);
                    (E) by inserting after paragraph (2) the following:
            ``(3) the work is a sound recording that was first fixed in 
        a treaty party; or'';
                    (F) in paragraph (4) by striking ``Berne Convention 
                work'' and inserting ``pictorial, graphic, or 
                sculptural work that is incorporated in a building or 
                other structure, or an architectural work that is 
                embodied in a building and the building or structure is 
                located in the United States or a treaty party''; and
                    (G) by inserting after paragraph (6), as so 
                redesignated, the following:
``For purposes of paragraph (2), a work that is published in the United 
States or a treaty party within 30 days after publication in a foreign 
nation that is not a treaty party shall be considered to be first 
published in the United States or such treaty party, as the case may 
be.''; and
            (2) by adding at the end the following new subsection:
    ``(d) Effect of Phonograms Treaties.--Notwithstanding the 
provisions of subsection (b), no works other than sound recordings 
shall be eligible for protection under this title solely by virtue of 
the adherence of the United States to the Geneva Phonograms Convention 
or the WIPO Performances and Phonograms Treaty.''.
    (c) Copyright in Restored Works.--Section 104A(h) of title 17, 
United States Code, is amended--
            (1) in paragraph (1), by striking subparagraphs (A) and (B) 
        and inserting the following:
                    ``(A) a nation adhering to the Berne Convention;
                    ``(B) a WTO member country;
                    ``(C) a nation adhering to the WIPO Copyright 
                Treaty;
                    ``(D) a nation adhering to the WIPO Performances 
                and Phonograms Treaty; or
                    ``(E) subject to a Presidential proclamation under 
                subsection (g).'';
            (2) by amending paragraph (3) to read as follows:
            ``(3) The term `eligible country' means a nation, other 
        than the United States, that--
                    ``(A) becomes a WTO member country after the date 
                of the enactment of the Uruguay Round Agreements Act;
                    ``(B) on such date of enactment is, or after such 
                date of enactment becomes, a nation adhering to the 
                Berne Convention;
                    ``(C) adheres to the WIPO Copyright Treaty;
                    ``(D) adheres to the WIPO Performances and 
                Phonograms Treaty; or
                    ``(E) after such date of enactment becomes subject 
                to a proclamation under subsection (g).'';
            (3) in paragraph (6)--
                    (A) in subparagraph (C)(iii) by striking ``and'' 
                after the semicolon;
                    (B) at the end of subparagraph (D) by striking the 
                period and inserting ``; and''; and
                    (C) by adding after subparagraph (D) the following:
                    ``(E) if the source country for the work is an 
                eligible country solely by virtue of its adherence to 
                the WIPO Performances and Phonograms Treaty, is a sound 
                recording.'';
            (4) in paragraph (8)(B)(i)--
                    (A) by inserting ``of which'' before ``the 
                majority''; and
                    (B) by striking ``of eligible countries''; and
            (5) by striking paragraph (9).
    (d) Registration and Infringement Actions.--Section 411(a) of title 
17, United States Code, is amended in the first sentence--
            (1) by striking ``actions for infringement of copyright in 
        Berne Convention works whose country of origin is not the 
        United States and''; and
            (2) by inserting ``United States'' after ``no action for 
        infringement of the copyright in any''.
    (e) Statute of Limitations.--Section 507(a) of title 17, United 
State Code, is amended by striking ``No'' and inserting ``Except as 
expressly provided otherwise in this title, no''.

SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT MANAGEMENT 
              INFORMATION.

    (a) In General.--Title 17, United States Code is amended by adding 
at the end the following new chapter:

       ``CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS

``Sec.
``1201. Circumvention of copyright protection systems.
``1202. Integrity of copyright management information.
``1203. Civil remedies.
``1204. Criminal offenses and penalties.
``1205. Savings clause.
``1203. Civil remedies.
``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)(i) The prohibition contained in subparagraph (A) shall not 
apply to persons with respect to a copyrighted work which is in a 
particular class of works and to which such persons have gained initial 
lawful access, 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).
    ``(ii) The prohibition contained in subparagraph (A) shall not 
apply to nonprofit libraries, archives, or educational institutions, or 
to any entity described in section 501(c)(3), (4), or (6) of the 
Internal Revenue Code of 1986 that is exempt from tax under section 
501(a) of such Code, with respect to a particular class of works, if 
such entities 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 Secretary of Commerce, in 
consultation with the Under Secretary of Commerce for Intellectual 
Property Policy, the Assistant Secretary of Commerce for Communications 
and Information, and the Register of Copyrights, shall conduct a 
rulemaking on the record to make the determination for purposes of 
subparagraph (B) of whether nonprofit libraries, archives, or 
educational institutions and other entities described in subparagraph 
(B) or persons who have gained initial lawful access to 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 
Secretary 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 of the prohibition on the circumvention 
        of technological measures applied to copyrighted works 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 Secretary, in consultation 
        with the Under Secretary of Commerce for Intellectual Property 
        Policy, the Assistant Secretary of Commerce for Communications 
        and Information, and the Register of Copyrights, considers 
        appropriate.
    ``(D) The Secretary shall publish any class of copyrighted works 
for which the Secretary has determined, pursuant to the rulemaking 
conducted under subparagraph (C), that noninfringing uses by nonprofit 
libraries, archives, or educational institutions and other entities 
described in subparagraph (B) or by persons who have gained initial 
lawful access to a copyrighted work are, or are likely to be, adversely 
affected, and the prohibition contained in subparagraph (A) shall not 
apply to such entities with respect to such class of works, or to such 
persons with respect to such copyrighted work, 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.
    ``(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 and Intelligence Activities.--This section 
does not prohibit any lawfully authorized investigative, protective, 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.
    ``(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 for that person to make the 
identification and analysis permitted under paragraph (1), or for the 
limited purpose of that person achieving 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 paragraphs (1) and (2) 
provides such information or means solely for the purpose of achieving 
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 other applicable law.
    ``(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 Under Secretary of 
        Commerce for Intellectual Property Policy, the Assistant 
        Secretary of Commerce for Communications and Information, and 
        the Register of Copyrights 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) Excpetions Regarding Minors.--(1) 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--
            ``(A) does not itself violate the provisions of this title; 
        and
            ``(B) has the sole purpose to prevent the access of minors 
        to material on the Internet.
    ``(2) Notwithstanding the provisions of subsection (a)(1)(A), it is 
not a violation of that subsection for a parent to circumvent a 
technological measure that effectively controls access to a test, 
examination, or other evaluation of his or her minor child's abilities 
that is given by a nonprofit educational institution if--
            ``(A) the parent made a good faith effort to obtain 
        authorization before the circumvention; and
            ``(B) such act is necessary to obtain a copy of such test, 
        examination, or other evaluation.
    ``(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.
``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 and Intelligence Activities.--This section 
does not prohibit any lawfully authorized investigative, protective, 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.
    ``(e) Limitations on Liability.--
            ``(1) Analog transmissions.--In the case of an analog 
        transmission, a person who is making transmissions in its 
        capacity as a broadcast station, or as a cable system, or 
        someone who provides programming to such station or system, 
        shall not be liable for a violation of subsection (b) if--
                    ``(A) avoiding the activity that constitutes such 
                violation is not technically feasible or would create 
                an undue financial hardship on such person; and
                    ``(B) such person did not intend, by engaging in 
                such activity, to induce, enable, facilitate, or 
                conceal infringement of a right under this title.
            ``(2) Digital transmissions.--
                    ``(A) If a digital transmission standard for the 
                placement of copyright management information for a 
                category of works is set in a voluntary, consensus 
                standard-setting process involving a representative 
                cross-section of broadcast stations or cable systems 
                and copyright owners of a category of works that are 
                intended for public performance by such stations or 
                systems, a person identified in paragraph (1) shall not 
                be liable for a violation of subsection (b) with 
                respect to the particular copyright management 
                information addressed by such standard if--
                            ``(i) the placement of such information by 
                        someone other than such person is not in 
                        accordance with such standard; and
                            ``(ii) the activity that constitutes such 
                        violation is not intended to induce, enable, 
                        facilitate, or conceal infringement of a right 
                        under this title.
                    ``(B) Until a digital transmission standard has 
                been set pursuant to subparagraph (A) with respect to 
                the placement of copyright management information for a 
                category or works, a person identified in paragraph (1) 
                shall not be liable for a violation of subsection (b) 
                with respect to such copyright management information, 
                if the activity that constitutes such violation is not 
                intended to induce, enable, facilitate, or conceal 
                infringement of a right under this title, and if--
                            ``(i) the transmission of such information 
                        by such person would result in a perceptible 
                        visual or aural degradation of the digital 
                        signal; or
                            ``(ii) the transmission of such information 
                        by such person would conflict with--
                                    ``(I) an applicable government 
                                regulation relating to transmission of 
                                information in a digital signal;
                                    ``(II) an applicable industry-wide 
                                standard relating to the transmission 
                                of information in a digital signal that 
                                was adopted by a voluntary consensus 
                                standards body prior to the effective 
                                date of this chapter; or
                                    ``(III) an applicable industry-wide 
                                standard relating to the transmission 
                                of information in a digital signal that 
                                was adopted in a voluntary, consensus 
                                standards-setting process open to 
                                participation by a representative 
                                cross-section of broadcast stations or 
                                cable systems and copyright owners of a 
                                category of works that are intended for 
                                public performance by such stations or 
                                systems.
            ``(3) Definitions.--As used in this subsection--
                    ``(A) the term `broadcast station' has the meaning 
                given that term in section 3 of the Communications Act 
                of 1934 (47 U.S.C. 153)); and
                    ``(B) the term `cable system' has the meaning given 
                that term in section 602 of the Communications Act of 
                1934 (47 U.S.C. 522)).
``Sec. 1203. Civil remedies
    ``(a) Civil Actions.--Any person injured by a violation of section 
1201 or 1202 may bring a civil action in an appropriate United States 
district court for such violation.
    ``(b) Powers of the Court.--In an action brought under subsection 
(a), the court--
            ``(1) may grant temporary and permanent injunctions on such 
        terms as it deems reasonable to prevent or restrain a 
        violation, but in no event shall impose a prior restraint on 
        free speech or the press protected under the 1st amendment to 
        the Constitution;
            ``(2) at any time while an action is pending, may order the 
        impounding, on such terms as it deems reasonable, of any device 
        or product that is in the custody or control of the alleged 
        violator and that the court has reasonable cause to believe was 
        involved in a violation;
            ``(3) may award damages under subsection (c);
            ``(4) in its discretion may allow the recovery of costs by 
        or against any party other than the United States or an officer 
        thereof;
            ``(5) in its discretion may award reasonable attorney's 
        fees to the prevailing party; and
            ``(6) may, as part of a final judgment or decree finding a 
        violation, order the remedial modification or the destruction 
        of any device or product involved in the violation that is in 
        the custody or control of the violator or has been impounded 
        under paragraph (2).
    ``(c) Award of Damages.--
            ``(1) In general.--Except as otherwise provided in this 
        title, a person committing a violation of section 1201 or 1202 
        is liable for either--
                    ``(A) the actual damages and any additional profits 
                of the violator, as provided in paragraph (2), or
                    ``(B) statutory damages, as provided in paragraph 
                (3).
            ``(2) Actual damages.--The court shall award to the 
        complaining party the actual damages suffered by the party as a 
        result of the violation, and any profits of the violator that 
        are attributable to the violation and are not taken into 
        account in computing the actual damages, if the complaining 
        party elects such damages at any time before final judgment is 
        entered.
            ``(3) Statutory damages.--(A) At any time before final 
        judgment is entered, a complaining party may elect to recover 
        an award of statutory damages for each violation of section 
        1201 in the sum of not less than $200 or more than $2,500 per 
        act of circumvention, device, product, component, offer, or 
        performance of service, as the court considers just.
            ``(B) At any time before final judgment is entered, a 
        complaining party may elect to recover an award of statutory 
        damages for each violation of section 1202 in the sum of not 
        less than $2,500 or more than $25,000.
            ``(4) Repeated violations.--In any case in which the 
        injured party sustains the burden of proving, and the court 
        finds, that a person has violated section 1201 or 1202 within 
        three 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 
five years after the cause of action arose.
``Sec. 1205. Savings clause
    ``Nothing in this chapter abrogates, diminishes, or weakens the 
provisions of, nor provides any defense or element of mitigation in a 
criminal prosecution or civil action under, any Federal or State law 
that prevents the violation of the privacy of an individual in 
connection with the individual's use of the Internet.''.
    (b) Conforming amendment.--The table of chapters for title 17, 
United States Code, is amended by adding after the item relating to 
chapter 11 the following:

``12. Copyright Protection and Management Systems...........    1201''.

SEC. 104. DEVELOPMENT AND IMPLEMENTATION OF TECHNOLOGICAL PROTECTION 
              MEASURES.

    (a) Statement of Congressional Policy and Objective.--It is the 
sense of the Congress that technological measures that effectively 
control access to works protected under title 17, United States Code, 
or that effectively protect a right of a copyright owner under such 
title play a crucial role in safeguarding the interests of both 
copyright owners and lawful users of copyrighted works in digital 
formats, by facilitating lawful uses of such works while protecting the 
private property interests of holders of rights under title 17, United 
States Code. Accordingly, the expeditious implementation of such 
measures, developed by the private sector is a key factor in realizing 
the full benefits of making available copyrighted works through digital 
networks, including the benefits set forth in this section.
    (b) Technological Measures.--The technological measures referred to 
in subsection (a) shall include, but not be limited to, those which--
            (1) enable nonprofit libraries, for nonprofit purposes, to 
        continue to lend to library users copies or phonorecords that 
        such libraries have lawfully acquired, including the lending of 
        such copies or phonorecords in digital formats in a manner that 
        prevents infringement;
            (2) effectively protect against the infringement of 
        exclusive rights under title 17, United States Code, and 
        facilitate the exercise of those exclusive rights; and
            (3) promote the development and implementation of diverse 
        methods, mechanisms, and arrangements in the marketplace for 
        making available copyrighted works in digital formats which 
        provide opportunities for individual members of the public to 
        make lawful uses of copyrighted works in digital formats.
    (c) Procedures for Developing and Implementing Technological 
Measures.--The technological measures whose development and 
implementation the Congress anticipates include, but are not limited 
to, those which--
            (1) are developed pursuant to a broad consensus in an open, 
        fair, voluntary, and multi-industry process;
            (2) are made available on reasonable and nondiscriminatory 
        terms; and
            (3) do not impose substantial costs or burdens on copyright 
        owners or on manufacturers of hardware or software used in 
        conjunction with copyrighted works in digital formats.
    (d) Oversight and Reporting.--(1) The Under Secretary of Commerce 
for Intellectual Property Policy, the Assistant Secretary of Commerce 
for Communications and Information, and the Register of Copyrights 
shall jointly review the impact of the enactment of section 1201 of 
title 17, United States Code, on the access of individual users to 
copyrighted works in digital formats and shall jointly report annually 
thereon to the Committees on the Judiciary and on Commerce of the House 
of Representatives and the Committees on the Judiciary and on Commerce, 
Science, and Transportation of the Senate.
    (2) Each report under paragraph (1) shall address the following 
issues:
            (A) The status of the development and implementation of 
        technological measures described in this section, including 
        measures that advance the objectives of this section, and the 
        effectiveness of such technological measures in protecting the 
        private property interests of copyright owners under title 17, 
        United States Code.
            (B) The degree to which individual lawful users of 
        copyrighted works--
                    (i) have access to the Internet and digital 
                networks generally;
                    (ii) are dependent upon such access for their use 
                of copyrighted works;
                    (iii) have available to them other channels for 
                obtaining and using copyrighted works, other than the 
                Internet and digital networks generally;
                    (iv) are required to pay copyright owners or 
                intermediaries for each lawful use of copyrighted works 
                in digital formats to which they have access; and
                    (v) are able to utilize nonprofit libraries to 
                obtain access, through borrowing without payment by the 
                user, to copyrighted works in digital formats.
            (C) The degree to which infringement of copyrighted works 
        in digital formats is occurring.
            (D) Whether and the extent to which section 1201 of title 
        17, United States Code, is asserted as a basis for liability in 
        claims brought against persons conducting research and 
        development, including reverse engineering of copyrighted 
        works, and the extent to which such claims constitute a serious 
        impediment to the development and production of competitive 
        goods and services.
            (E) The degree to which individual users of copyrighted 
        materials in digital formats are able effectively to protect 
        themselves against the use of technological measures to carry 
        out or facilitate the undisclosed collection and dissemination 
        of personally identifying information concerning the access to 
        and use of such materials by such users.
            (F) Such other issues as the Under Secretary of Commerce 
        for Intellectual Property Policy, the Assistant Secretary of 
        Commerce for Communications and Information, and the Register 
        of Copyrights identify as relevant to the impact of the 
        enactment of section 1201 of title 17, United States Code, on 
        the access of individual users to copyrighted works in digital 
        formats.
    (3) The first report under this subsection shall be submitted not 
later than one year after the date of the enactment of this Act, and 
the last such report shall be submitted not later than three years 
after the date of the enactment of this Act.
    (4) The reports under this subsection may include such 
recommendations for additional legislative action as the Under 
Secretary of Commerce for Intellectual Property Policy, the Assistant 
Secretary of Commerce for Communications and Information, and the 
Register of Copyrights consider advisable in order to further the 
objectives of this section.

SEC. 105. EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON 
              ELECTRONIC COMMERCE AND TECHNOLOGICAL DEVELOPMENT.

    (a) Evaluation by Under Secretary of Commerce and Register of 
Copyrights.--The Under Secretary of Commerce for Intellectual Property 
Policy, the Assistant Secretary of Commerce for Communications and 
Information, and the Register of Copyrights 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.
    (c) Report to Congress.--The Under Secretary of Commerce for 
Intellectual Property Policy, the Assistant Secretary of Commerce for 
Communications and Information, and the Register of Copyrights 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 (b), including any legislative recommendations the Under 
Secretary, the Assistant Secretary, and the Register may have.

SEC. 106. EFFECTIVE DATE.

    (a) In General.--Subject to subsection (b), 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 (i), for injunctive or other equitable relief, 
for infringement of copyright by reason of the provider's transmitting, 
routing, or providing connections for, material through a system or 
network controlled or operated by or for the service provider, or by 
reason of the intermediate and transient storage of that material in 
the course of such transmitting, routing, or providing connections, 
if--
            ``(1) the transmission of the material was initiated by or 
        at the direction of a person other than the service provider;
            ``(2) the transmission, routing, provision of connections, 
        or storage is carried out through an automatic technical 
        process without selection of the material by the service 
        provider;
            ``(3) the service provider does not select the recipients 
        of the material except as an automatic response to the request 
        of another person;
            ``(4) no copy of the material made by the service provider 
        in the course of such intermediate or transient storage is 
        maintained on the system or network in a manner ordinarily 
        accessible to anyone other than anticipated recipients, and no 
        such copy is maintained on the system or network in a manner 
        ordinarily accessible to such anticipated recipients for a 
        longer period than is reasonably necessary for the 
        transmission, routing, or provision of connections; and
            ``(5) the material is transmitted through the system or 
        network without modification of its content.
    ``(b) System Caching.--
            ``(1) Limitation on liability.--A service provider shall 
        not be liable for monetary relief, or, except as provided in 
        subsection (i), 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 (i), 
        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 (4), 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) Limitation on liability of nonprofit educational 
        institutions.--A nonprofit educational institution that is a 
        service provider shall not be liable for monetary relief, or, 
        except as provided in subsection (i), for injunctive or other 
        equitable relief, by reason of the acts or omissions of a 
        faculty member, administrative employee, student, or graduate 
        student, unless such faculty member, administrative employee, 
        student, or graduate student is exercising managerial or 
        operational responsibilities that directly relate to the 
        institution's function as a service provider.
            ``(3) 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 
        (4), 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.
            ``(4) 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 (i), 
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)(4), 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)(4)(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) 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.
    ``(f) 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).
    ``(g) 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)(4)(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)(4)(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)(4)(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.
    ``(h) 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.
    ``(i) 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.
    ``(j) Definitions.--
            ``(1) Service provider.--(A) As used in subsection (a), the 
        term `service provider' means an entity offering the 
        transmission, routing, or providing of connections for digital 
        online communications, between or among points specified by a 
        user, of material of the user's choosing, without modification 
        to the content of the material as sent or received.
            ``(B) As used in this section, other than subsection (a), 
        the term `service provider' means a provider of online services 
        or network access, or the operator of facilities therefor, and 
        includes an entity described in subparagraph (A).
            ``(2) Monetary relief.--As used in this section, the term 
        `monetary relief' means damages, costs, attorneys' fees, and 
        any other form of monetary payment.
    ``(k) 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.
    ``(l) 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 (h); or
            ``(2) a service provider gaining access to, removing, or 
        disabling access to material in cases in which such conduct is 
        prohibited by law.
    ``(m) 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.''.
    (c) Effective Date.--The amendments made by this section take 
effect on the date of the enactment of this Act.

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

   Subtitle A--Establishment of the Under Secretary of Commerce for 
                      Intellectual Property Policy

SEC. 401. UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY POLICY.

    (a) Appointment.--There shall be within the Department of Commerce 
an Under Secretary of Commerce for Intellectual Property Policy, who 
shall be appointed by the President, by and with the advice and consent 
of the Senate, at level II of the Executive Schedule. On or after the 
effective date of this subtitle, the President may designate an 
individual to serve as the Acting Under Secretary until the date on 
which an Under Secretary qualifies under this subsection.
    (b) Duties.--The Under Secretary of Commerce for Intellectual 
Property Policy, under the direction of the Secretary of Commerce, 
shall perform the following functions with respect to intellectual 
property policy:
            (1) In coordination with the Under Secretary of Commerce 
        for International Trade, promote exports of goods and services 
        of the United States industries that rely on intellectual 
        property.
            (2) Advise the President, through the Secretary of 
        Commerce, on national and certain international issues relating 
        to intellectual property policy, including issues in the areas 
        of patents, trademarks, and copyrights.
            (3) Advise Federal departments and agencies on matters of 
        intellectual property protection in other countries.
            (4) Provide guidance, as appropriate, with respect to 
        proposals by agencies to assist foreign governments and 
        international intergovernmental organizations on matters of 
        intellectual property protection.
            (5) Conduct programs and studies related to the 
        effectiveness of intellectual property protection throughout 
        the world.
            (6) Advise the Secretary of Commerce on programs and 
        studies relating to intellectual property policy that are 
        conducted, or authorized to be conducted, cooperatively with 
        foreign patent and trademark offices and international 
        intergovernmental organizations.
            (7) In coordination with the Department of State, conduct 
        programs and studies cooperatively with foreign intellectual 
        property offices and international intergovernmental 
        organizations.
    (c) Deputy Under Secretaries.--To assist the Under Secretary of 
Commerce for Intellectual Property Policy, the Under Secretary shall 
appoint a Deputy Under Secretary for Patent Policy and a Deputy Under 
Secretary for Trademark Policy, as members of the Senior Executive 
Service in accordance with the provisions of title 5, United States 
Code. The Deputy Under Secretaries shall perform such duties and 
functions as the Under Secretary shall prescribe.
    (d) Compensation.--Section 5313 of title 5, United States Code, is 
amended by adding at the end the following: ``Under Secretary of 
Commerce for Intellectual Property Policy.''
    (e) Funding.--Funds available to the Patent and Trademark Office 
shall be made available for all expenses of the Office of the Under 
Secretary of Commerce for Intellectual Property Policy, subject to 
prior approval in appropriations Acts. Amounts made available under 
this subsection shall not exceed 2 percent of the projected annual 
revenues of the Patent and Trademark Office from fees for services and 
goods of that Office. The Secretary of Commerce shall determine the 
budget requirements of the Office of the Under Secretary for 
Intellectual Property Policy.
    (f) Consultation.--In connection with the performance of his or her 
duties under this section, the Under Secretary shall, on appropriate 
matters, consult with the Register of Copyrights.

SEC. 402. RELATIONSHIP WITH EXISTING AUTHORITIES.

    (a) No Derogation.--Nothing in section 401 shall derogate from the 
duties of the United States Trade Representative or from the duties of 
the Secretary of State. In addition, nothing in this subtitle shall 
derogate from the duties and functions of the Register of Copyrights or 
otherwise alter current authorities relating to copyright matters.
    (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 chapters 9, 
        12, 13, and 14 of 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 chapters 9, 12, 13, and 14 of 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 chapters 9, 12, 13, and 14 of 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 chapters 9, 12, 13, and 14 of 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.''

                     Subtitle B--Related Provisions

SEC. 411. 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)''; and
            (3) 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 that broadcasts a performance of a 
        sound recording in a digital format on a nonsubscription 
        basis,''; and
            (4) 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. 412. 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. 413. EXEMPTION FOR LIBRARIES AND ARCHIVES.

    Section 108 of title 17, United States Code, is amended--
            (1) in subsection (a)--
                    (A) by striking ``Notwithstanding'' and inserting 
                ``Except as otherwise provided in this title and 
                notwithstanding'';
                    (B) by inserting after ``no more than one copy or 
                phonorecord of a work'' the following: ``, except as 
                provided in subsections (b) and (c)''; and
                    (C) in paragraph (3) by inserting after 
                ``copyright'' the following: ``that appears on the copy 
                or phonorecord that is reproduced under the provisions 
                of this section, or includes a legend stating that the 
                work may be protected by copyright if no such notice 
                can be found on the copy or phonorecord that is 
                reproduced under the provisions of this section'';
            (2) in subsection (b)--
                    (A) by striking ``a copy or phonorecord'' and 
                inserting ``three copies or phonorecords'';
                    (B) by striking ``in facsimile form''; and
                    (C) by striking ``if the copy or phonorecord 
                reproduced is currently in the collections of the 
                library or archives.'' and inserting ``if--
            ``(1) the copy or phonorecord reproduced is currently in 
        the collections of the library or archives; and
            ``(2) any such copy or phonorecord that is reproduced in 
        digital format is not otherwise distributed in that format and 
        is not made available to the public in that format outside the 
        premises of the library or archives.''; and
            (3) in subsection (c)--
                    (A) by striking ``a copy or phonorecord'' and 
                inserting ``three copies or phonorecords'';
                    (B) by striking ``in facsimile form'';
                    (C) by inserting ``or if the existing format in 
                which the work is stored has become obsolete,'' after 
                ``stolen,''; and
                    (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. 414. FAIR USE.

    Section 107 of title 17, United States Code, is amended in the 
first sentence by striking ``, including such use'' and all that 
follows through ``section,''.

SEC. 415. 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) 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) or an eligible nonsubscription digital audio 
        transmission shall be subject to statutory licensing, in 
        accordance with subsection (f) if--
                    ``(A) in the case of a subscription transmission 
                not exempt under paragraph (1) or an eligible 
                nonsubscription transmission--
                            ``(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 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) by a preexisting 
                subscription service in the same transmission medium 
                used by such service on July 31, 1998--
                            ``(i) the transmission does not exceed the 
                        sound recording performance complement;
                            ``(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) 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 the broadcast station 
                        makes broadcast transmissions--
                                    ``(I) in digital format that 
                                regularly exceed the sound recording 
                                performance complement; or
                                    ``(II) in analog format, a 
                                substantial portion of which, on a 
                                weekly basis, exceed the sound 
                                recording performance complement;
                        Provided, however, That 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 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 any 1-
                        hour period, no more than 3 such announcements 
                        are made with respect to no more than 2 artists 
                        in each announcement;
                            ``(iii) the transmission is not part of--
                                    ``(I) an archived program of less 
                                than 5 hours duration;
                                    ``(II) an archived program of 
                                greater than 5 hours duration that is 
                                made available for a period exceeding 2 
                                weeks;
                                    ``(III) a continuous program which 
                                is of less than 3 hours duration; or
                                    ``(IV) a program, other than an 
                                archived or continuous program, that is 
                                transmitted at a scheduled time more 
                                than 3 additional times in a 2-week 
                                period following the first transmission 
                                of the program and for an additional 2-
                                week period more than 1 month following 
                                the end of the first such 2-week 
                                period;
                            ``(iv) the transmitting entity does not 
                        knowingly perform the sound recording 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 together 
                        with transmissions by other transmitting 
                        entities to select a particular sound recording 
                        to be transmitted to the transmission 
                        recipient;
                            ``(vi) the transmitting entity takes 
                        reasonable steps to ensure, to the extent 
                        within its control, that the transmission 
                        recipient cannot make a phonorecord in a 
                        digital format of the transmission, and the 
                        transmitting entity takes no affirmative steps 
                        to cause or induce the making of a phonorecord 
                        by the transmission recipient;
                            ``(vii) phonorecords of the sound recording 
                        have been distributed to the public in the 
                        United States 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 this title;
                            ``(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; and
                            ``(ix) in the case of an eligible 
                        nonsubscription transmission, the transmitting 
                        entity identifies 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 perceived 
                        by the transmission recipient, 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.''.
            (2) Subsection (f) is amended to read as follows:
                    (A) in paragraph (1)--
                            (i) in the first sentence--
                                    (I) by striking ``(1) No'' and 
                                inserting ``(1)(A) No'';
                                    (II) by striking ``the activities'' 
                                and inserting ``subscription 
                                transmissions by preexisting 
                                subscription services''; and
                                    (III) by striking ``2000'' and 
                                inserting ``2001''; and
                            (ii) by amending the third sentence to read 
                        as follows: ``Any copyright owners of sound 
                        recordings or any preexisting subscription 
                        services may submit to the Librarian of 
                        Congress licenses covering such subscriptions 
                        transmissions with respect to such sound 
                        recordings.''; and
                    (B) 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 preexisting 
        subscription services. In establishing rates and terms for 
        preexisting subscription 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 or 
                any preexisting subscription 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 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 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 section 
        may submit to the Librarian of Congress licenses covering such 
        eligible nonsubscription transmissions 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 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 copyright user 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.
            ``(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 if 
                filed by any copyright owners of sound recordings or 
                any eligible nonsubscription service or new 
                subscription service indicating that a new type of 
                eligible nonsubscription service or new subscription 
                service on which sound recordings are performed is or 
                is about to become operational; and
                    ``(II) in the first week of January 2000, and at 2-
                year intervals thereafter, except to the extent that 
                different years for the repeating of such proceedings 
                may be determined in accordance with subparagraph (A).
            ``(ii) The procedures specified in subparagraph (B) shall 
        be repeated, in accordance with regulations that the Librarian 
        of Congress shall prescribe, upon filing of a petition in 
        accordance with section 803(a)(1) during a 60-day period 
        commencing--
                    ``(I) 6 months after publication of a notice of the 
                initiation of voluntary negotiation proceedings under 
                subparagraph (A) pursuant to a petition under clause 
                (i)(I); or
                    ``(II) on July 1, 2000, and at 2-year intervals 
                thereafter, except to the extent that different years 
                for the repeating of such proceedings may be determined 
                in accordance with subparagraph (A).
            ``(iii) The procedures specified in subparagraph (B) shall 
        be concluded in accordance with section 802.
            ``(3) License agreements voluntarily negotiated at any time 
        between 1 or more copyright owners of sound recordings and 1 or 
        more entities performing sound recordings shall be given effect 
        in lieu of any determination by a copyright arbitration royalty 
        panel or decision by the Librarian of Congress.
            ``(4)(A) The Librarian of Congress shall also establish 
        requirements by which copyright owners may receive reasonable 
        notice of the use of their sound recordings under this section, 
        and under which records of such use shall be kept and made 
        available by entities performing sound recordings.
            ``(B) Any person who wishes to perform a sound recording 
        publicly by means of a transmission eligible for statutory 
        licensing under this subsection may do so without infringing 
        the exclusive right of the copyright owner of the sound 
        recording--
                    ``(i) by complying with such notice requirements as 
                the Librarian of Congress shall prescribe by regulation 
                and by paying royalty fees in accordance with this 
                subsection; or
                    ``(ii) if such royalty fees have not been set, by 
                agreeing to pay such royalty fees as shall be 
                determined in accordance with this subsection.
            ``(C) Any royalty payments in arrears shall be made on or 
        before the twentieth day of the month next succeeding the month 
        in which the royalty fees are set.''.
            (3) Subsection (g) is amended--
                    (A) in the subsection heading by striking 
                ``Subscription'';
                    (B) in paragraph (1) in the matter preceding 
                subparagraph (A), by striking ``subscription 
                transmission licensed'' and inserting ``transmission 
                licensed under a statutory license'';
                    (C) in subparagraphs (A) and (B) by striking 
                ``subscription''; and
                    (D) in paragraph (2) by striking ``subscription''.
            (4) Subsection (j) is amended--
                    (A) by redesignating paragraphs (2), (3), (5), (6), 
                (7), and (8) as paragraphs (3), (5), (9), (11), (12), 
                and (13), respectively;
                    (B) by inserting after paragraph (1) the following:
            ``(2) An `archived program' is a prerecorded program that 
        is available repeatedly on demand and that is performed in the 
        same predetermined order from the beginning.'';
                    (C) by inserting after paragraph (3), as so 
                redesignated, the following:
            ``(4) A `continuous program' is a prerecorded program that 
        is continuously performed in the same predetermined order and 
        the point in the program at which it is accessed 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 transmission 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 
        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 subscription digital 
        audio transmissions and that is not a preexisting subscription 
        service.'';
                    (E) by inserting after paragraph (9), as so 
                redesignated, the following:
            ``(10) 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 transmission to the public for 
        a fee on or before July 31, 1998.''; and
                    (F) by adding at the end the following:
            ``(14) A `transmission' is either an initial transmission 
        or a retransmission.''.
    (b) Ephemeral Recordings.--Section 112 of title 17, United States 
Code, is amended by adding at the end the following:
    ``(f) Statutory License.--(1) An ephemeral recording of a sound 
recording by a transmitting organization entitled to transmit to the 
public a performance of that sound recording by means of a digital 
audio transmission under a statutory license in accordance with section 
114(f) or an exemption provided in section 114(d)(1)(B) or (C) is 
subject to statutory licensing under the conditions specified by this 
subsection.
    ``(2) A statutory license under this subsection grants a 
transmitting organization entitled to transmit to the public a 
performance of a sound recording by means of a digital audio 
transmission under a statutory license in accordance with section 
114(f) or an exemption provided in section 114(d)(1)(B) or (C) the 
privilege of making no more than 1 phonorecord of the sound recording 
(unless the terms and conditions of the statutory license allow for 
more), if--
            ``(A) the phonorecord is retained and used solely by the 
        transmitting organization that made it, and no further 
        phonorecords are reproduced from it; and
            ``(B) the phonorecord is used solely for the transmitting 
        organization's own transmissions in the United States under a 
        statutory license in accordance with section 114(f) or an 
        exemption provided in section 114(d)(1)(B) or (C);
            ``(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; and
            ``(D) phonorecords of the sound recording have been 
        distributed to the public in the United States 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 and acquired under this title.
    ``(3) Notwithstanding any provision of the antitrust laws, any 
copyright owners of sound recordings and any transmitting organizations 
entitled to obtain a statutory license under this subsection may 
negotiate and agree upon royalty rates and license terms and conditions 
for ephemeral recordings of such sound recordings 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. Any 
copyright owners of sound recordings or any transmitting organizations 
entitled to obtain 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 obtain 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. 
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;
            ``(B) the relative rules of the copyright owner and the 
        copyright user 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 an ephemeral recording 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 within 
the meaning of 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.''.

SEC. 416. 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.--In the case of a transfer of 
copyright ownership in a motion picture (as 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--
            ``(1) 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
            ``(2) 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.
    ``(b) 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)(2), the transferor shall be liable 
to the transferee for any damages suffered by the transferee as a 
result of the failure to notify.
    ``(c) Determination of Disputes and Claims.--Any dispute concerning 
the application of subsection (a) and any claim made under subsection 
(b) 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.''.
    (b) Conforming Amendment.--The table of chapters for part VI of 
title 28, United States Code, is amended by adding at the end the 
following:

``180. Assumption of Certain Contractual Obligations4001''.<plus-minus>

SEC. 417. FIRST SALE CLARIFICATION.

    Section 109(a) of title 17, United States Code, is amended by 
striking the first sentence and inserting the following: 
``Notwithstanding the provisions of section 106(3), the owner of a 
particular lawfully made copy or phonorecord that has been distributed 
in the United States by the authority of the copyright owner, or any 
person authorized by the owner of that copy or phonorecord, is 
entitled, without the authority of the copyright owner, to sell or 
otherwise dispose of the possession of that copy or phonorecord.''.

           TITLE V--COLLECTIONS OF INFORMATION ANTIPIRACY ACT

SEC. 501. SHORT TITLE.

    This title may be cited as the ``Collections of Information 
Antipiracy Act''.

SEC. 502. MISAPPROPRIATION OF COLLECTIONS OF INFORMATION.

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

      ``CHAPTER 13--MISAPPROPRIATION OF COLLECTIONS OF INFORMATION

``Sec.
``1301. Definitions.
``1302. Prohibition against misappropriation.
``1303. Permitted acts.
``1304. Exclusions.
``1305. Relationship to other laws.
``1306. Civil remedies.
``1307. Criminal offenses and penalties.
``1308. Limitations on actions.
``Sec. 1301. Definitions
    ``As used in this chapter:
            ``(1) Collection of information.--The term `collection of 
        information' means information that has been collected and has 
        been organized for the purpose of bringing discrete items of 
        information together in one place or through one source so that 
        users may access them.
            ``(2) Information.--The term `information' means facts, 
        data, works of authorship, or any other intangible material 
        capable of being collected and organized in a systematic way.
            ``(3) Potential market.--The term `potential market' means 
        any market that a person claiming protection under section 1302 
        has current and demonstrable plans to exploit or that is 
        commonly exploited by persons offering similar products or 
        services incorporating collections of information.
            ``(4) Commerce.--The term `commerce' means all commerce 
        which may be lawfully regulated by the Congress.
            ``(5) Product or service.--A product or service 
        incorporating a collection of information does not include a 
        product or service incorporating a collection of information 
        gathered, organized, or maintained to address, route, forward, 
        transmit, or store digital online communications or provide or 
        receive access to connections for digital online 
        communications.
``Sec. 1302. Prohibition against misappropriation
    ``Any person who extracts, or uses in commerce, all or a 
substantial part, measured either quantitatively or qualitatively, of a 
collection of information gathered, organized, or maintained by another 
person through the investment of substantial monetary or other 
resources, so as to cause harm to the actual or potential market of 
that other person, or a successor in interest of that other person, for 
a product or service that incorporates that collection of information 
and is offered or intended to be offered for sale or otherwise in 
commerce by that other person, or a successor in interest of that 
person, shall be liable to that person or successor in interest for the 
remedies set forth in section 1306.
``Sec. 1303. Permitted acts
    ``(a) Individual Items of Information and Other Insubstantial 
Parts.--Nothing in this chapter shall prevent the extraction or use of 
an individual item of information, or other insubstantial part of a 
collection of information, in itself. An individual item of 
information, including a work of authorship, shall not itself be 
considered a substantial part of a collection of information under 
section 1302. Nothing in this subsection shall permit the repeated or 
systematic extraction or use of individual items or insubstantial parts 
of a collection of information so as to circumvent the prohibition 
contained in section 1302.
    ``(b) Gathering or Use of Information Obtained Through Other 
Means.--Nothing in this chapter shall restrict any person from 
independently gathering information or using information obtained by 
means other than extracting it from a collection of information 
gathered, organized, or maintained by another person through the 
investment of substantial monetary or other resources.
    ``(c) Use of Information for Verification.--Nothing in this chapter 
shall restrict any person from extracting or using a collection of 
information within any entity or organization, for the sole purpose of 
verifying the accuracy of information independently gathered, 
organized, or maintained by that person. Under no circumstances shall 
the information so used be extracted from the original collection and 
made available to others in a manner that harms the actual or potential 
market for the collection of information from which it is extracted or 
used.
    ``(d) Nonprofit Educational, Scientific, or Research Uses.--
Notwithstanding section 1302, no person shall be restricted from 
extracting or using information for nonprofit educational, scientific, 
or research purposes in a manner that does not harm directly the actual 
market for the product or service referred to in section 1302.
    ``(e) News Reporting.--Nothing in this chapter shall restrict any 
person from extracting or using information for the sole purpose of 
news reporting, including news gathering, dissemination, and comment, 
unless the information so extracted or used is time sensitive and has 
been gathered by a news reporting entity, and the extraction or use is 
part of a consistent pattern engaged in for the purpose of direct 
competition.
    ``(f) Transfer of Copy.--Nothing in this chapter shall restrict the 
owner of a particular lawfully made copy of all or part of a collection 
of information from selling or otherwise disposing of the possession of 
that copy.
``Sec. 1304. Exclusions
    ``(a) Government Collections of Information.--
            ``(1) Exclusion.--Protection under this chapter shall not 
        extend to collections of information gathered, organized, or 
        maintained by or for a government entity, whether Federal, 
        State, or local, including any employee or agent of such 
        entity, or any person exclusively licensed by such entity, 
        within the scope of the employment, agency, or license. Nothing 
        in this subsection shall preclude protection under this chapter 
        for information gathered, organized, or maintained by such an 
agent or licensee that is not within the scope of such agency or 
license, or by a Federal or State educational institution in the course 
of engaging in education or scholarship.
            ``(2) Exception.--The exclusion under paragraph (1) does 
        not apply to any information required to be collected and 
        disseminated--
                    ``(A) under the Securities Exchange Act of 1934 by 
                a national securities exchange, a registered securities 
                association, or a registered securities information 
                processor, subject to section 1305(g) of this title; or
                    ``(B) under the Commodity Exchange Act by a 
                contract market, subject to section 1305(g) of this 
                title.
    ``(b) Computer Programs.--
            ``(1) Protection not extended.--Subject to paragraph (2), 
        protection under this chapter shall not extend to computer 
        programs, including, but not limited to, any computer program 
        used in the manufacture, production, operation, or maintenance 
        of a collection of information, or any element of a computer 
        program necessary to its operation.
            ``(2) Incorporated collections of information.--A 
        collection of information that is otherwise subject to 
        protection under this chapter is not disqualified from such 
        protection solely because it is incorporated into a computer 
        program.
``Sec. 1305. Relationship to other laws
    ``(a) Other Rights Not Affected.--Subject to subsection (b), 
nothing in this chapter shall affect rights, limitations, or remedies 
concerning copyright, or any other rights or obligations relating to 
information, including laws with respect to patent, trademark, design 
rights, antitrust, trade secrets, privacy, access to public documents, 
and the law of contract.
    ``(b) Preemption of State Law.--On or after the effective date of 
this chapter, all rights that are equivalent to the rights specified in 
section 1302 with respect to the subject matter of this chapter shall 
be governed exclusively by Federal law, and no person is entitled to 
any equivalent right in such subject matter under the common law or 
statutes of any State. State laws with respect to trademark, design 
rights, antitrust, trade secrets, privacy, access to public documents, 
and the law of contract shall not be deemed to provide equivalent 
rights for purposes of this subsection.
    ``(c) Relationship to Copyright.--Protection under this chapter is 
independent of, and does not affect or enlarge the scope, duration, 
ownership, or subsistence of, any copyright protection or limitation, 
including, but not limited to, fair use, in any work of authorship that 
is contained in or consists in whole or part of a collection of 
information. This chapter does not provide any greater protection to a 
work of authorship contained in a collection of information, other than 
a work that is itself a collection of information, than is available to 
that work under any other chapter of this title.
    ``(d) Antitrust.--Nothing in this chapter shall limit in any way 
the constraints on the manner in which products and services may be 
provided to the public that are imposed by Federal and State antitrust 
laws, including those regarding single suppliers of products and 
services.
    ``(e) Licensing.--Nothing in this chapter shall restrict the rights 
of parties freely to enter into licenses or any other contracts with 
respect to the use of collections of information.
    ``(f) Communications Act of 1934.--Nothing in this chapter shall 
affect the operation of the provisions of the Communications Act of 
1934 (47 U.S.C. 151 et seq.), or shall restrict any person from 
extracting or using subscriber list information, as such term is 
defined in section 222(f)(3) of the Communications Act of 1934 (47 
U.S.C. 222(f)(3)), for the purpose of publishing telephone directories 
in any format.
    ``(g) Securities and Commodities Market Information.--
            ``(1) Federal agencies and acts.--Nothing in this Act shall 
        affect:
                    ``(A) the operation of the provisions of the 
                Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) 
                or the Commodity Exchange Act (7 U.S.C. 1 et seq.);
                    ``(B) the jurisdiction or authority of the 
                Securities and Exchange Commission and the Commodity 
                Futures Trading Commission; or
                    ``(C) the functions and operations of self-
                regulatory organizations and securities information 
                processors under the provisions of the Securities 
                Exchange Act of 1934 and the rules and regulations 
                thereunder, including making market information 
                available pursuant to the provisions of that Act and 
                the rules and regulations promulgated thereunder.
            ``(2) Prohibition.--Notwithstanding any provision in 
        subsection (a), (b), (c), (d), or (f) of section 1303, nothing 
        in this chapter shall permit the extraction, use, resale, or 
        other disposition of real-time market information except as the 
        Securities Exchange Act of 1934, the Commodity Exchange Act, 
        and the rules and regulations thereunder may otherwise provide. 
        In addition, nothing in subsection (e) of section 1303 shall be 
        construed to permit any person to extract or use real-time 
        market information in a manner that constitutes a market 
        substitute for a real-time market information service 
        (including the real-time systematic updating of or display of a 
        substantial part of market information) provided on a real-time 
        basis.
            ``(3) Definition.--As used in this subsection, the term 
        `market information' means information relating to quotations 
        and transactions that is collected, processed, distributed, or 
        published pursuant to the provisions of the Securities Exchange 
        Act of 1934 or by a contract market that is designated by the 
        Commodity Futures Trading Commission pursuant to the Commodity 
        Exchange Act and the rules and regulations thereunder.
``Sec. 1306. Civil remedies
    ``(a) Civil Actions.--Any person who is injured by a violation of 
section 1302 may bring a civil action for such a violation in an 
appropriate United States district court without regard to the amount 
in controversy, except that any action against a State governmental 
entity may be brought in any court that has jurisdiction over claims 
against such entity.
    ``(b) Temporary and Permanent Injunctions.--Any court having 
jurisdiction of a civil action under this section shall have the power 
to grant temporary and permanent injunctions, according to the 
principles of equity and upon such terms as the court may deem 
reasonable, to prevent a violation of section 1302. Any such injunction 
may be served anywhere in the United States on the person enjoined, and 
may be enforced by proceedings in contempt or otherwise by any United 
States district court having jurisdiction over that person.
    ``(c) Impoundment.--At any time while an action under this section 
is pending, the court may order the impounding, on such terms as it 
deems reasonable, of all copies of contents of a collection of 
information extracted or used in violation of section 1302, and of all 
masters, tapes, disks, diskettes, or other articles by means of which 
such copies may be reproduced. The court may, as part of a final 
judgment or decree finding a violation of section 1302, order the 
remedial modification or destruction of all copies of contents of a 
collection of information extracted or used in violation of section 
1302, and of all masters, tapes, disks, diskettes, or other articles by 
means of which such copies may be reproduced.
    ``(d) Monetary Relief.--When a violation of section 1302 has been 
established in any civil action arising under this section, the 
plaintiff shall be entitled to recover any damages sustained by the 
plaintiff and defendant's profits not taken into account in computing 
the damages sustained by the plaintiff. The court shall assess such 
profits or damages or cause the same to be assessed under its 
direction. In assessing profits the plaintiff shall be required to 
prove defendant's gross revenue only and the defendant shall be 
required to prove all elements of cost or deduction claims. In 
assessing damages the court may enter judgment, according to the 
circumstances of the case, for any sum above the amount found as actual 
damages, not exceeding three times such amount. The court in its 
discretion may award reasonable costs and attorney's fees to the 
prevailing party and shall award such costs and fees where it 
determines that an action was brought under this chapter in bad faith 
against a nonprofit educational, scientific, or research institution, 
library, or archives, or an employee or agent of such an entity, acting 
within the scope of his or her employment.
    ``(e) Reduction or Remission of Monetary Relief for Nonprofit 
Educational, Scientific, or Research Institutions.--The court shall 
reduce or remit entirely monetary relief under subsection (d) in any 
case in which a defendant believed and had reasonable grounds for 
believing that his or her conduct was permissible under this chapter, 
if the defendant was an employee or agent of a nonprofit educational, 
scientific, or research institution, library, or archives acting within 
the scope of his or her employment.
    ``(f) Actions Against United States Government.--Subsections (b) 
and (c) shall not apply to any action against the United States 
Government.
    ``(g) Relief Against State Entities.--The relief provided under 
this section shall be available against a State governmental entity to 
the extent permitted by applicable law.
``Sec. 1307. Criminal offenses and penalties
    ``(a) Violation.--
            ``(1) In general.--Any person who violates section 1302 
        willfully, and--
                    ``(A) does so for direct or indirect commercial 
                advantage or financial gain; or
                    ``(B) causes loss or damage aggregating $10,000 or 
                more in any 1-year period to the person who gathered, 
                organized, or maintained the information concerned,
        shall be punished as provided in subsection (b).
            ``(2) Inapplicability.--This section shall not apply to an 
        employee or agent of a nonprofit educational, scientific, or 
        research institution, library, or archives acting within the 
        scope of his or her employment.
    ``(b) Penalties.--An offense under subsection (a) shall be 
punishable by a fine of not more than $250,000 or imprisonment for not 
more than 5 years, or both. A second or subsequent offense under 
subsection (a) shall be punishable by a fine of not more than $500,000 
or imprisonment for not more than 10 years, or both.
``Sec. 1308. Limitations on actions
    ``(a) Criminal Proceedings.--No criminal proceeding shall be 
maintained under this chapter unless it is commenced within three years 
after the cause of action arises.
    ``(b) Civil Actions.--No civil action shall be maintained under 
this chapter unless it is commenced within three years after the cause 
of action arises or claim accrues.
    ``(c) Additional Limitation.--No criminal or civil action shall be 
maintained under this chapter for the extraction or use of all or a 
substantial part of a collection of information that occurs more than 
15 years after the investment of resources that qualified the portion 
of the collection of information for protection under this chapter that 
is extracted or used.''.

SEC. 503. CONFORMING AMENDMENT.

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

``13. Misappropriation of Collections of Information........    1301''.

SEC. 504. CONFORMING AMENDMENTS TO TITLE 28, UNITED STATES CODE.

    (a) District Court Jurisdiction.--Section 1338 of title 28, United 
States Code, is amended--
            (1) in the section heading by inserting ``misappropriations 
        of collections of information,'' after ``trade-marks,''; and
            (2) by adding at the end the following:
    ``(d) The district courts shall have original jurisdiction of any 
civil action arising under chapter 13 of title 17, relating to 
misappropriation of collections of information. Such jurisdiction shall 
be exclusive of the courts of the States, except that any action 
against a State governmental entity may be brought in any court that 
has jurisdiction over claims against such entity.''.
    (b) Conforming Amendment.--The item relating to section 1338 in the 
table of sections for chapter 85 of title 28, United States Code, is 
amended by inserting ``misappropriations of collections of 
information,'' after ``trade-marks,''.
    (c) Court of Federal Claims Jurisdiction.--Section 1498(e) of title 
28, United States Code, is amended by inserting ``and to protections 
afforded collections of information under chapter 13 of title 17'' 
after ``chapter 9 of title 17''.

SEC. 505. EFFECTIVE DATE.

    (a) In General.--This title and the amendments made by this title 
shall take effect on the date of the enactment of this Act, and shall 
apply to acts committed on or after that date.
    (b) Prior Acts Not Affected.--No person shall be liable under 
chapter 13 of title 17, United States Code, as added by section 502 of 
this Act, for the use of information lawfully extracted from a 
collection of information prior to the effective date of this Act, by 
that person or by that person's predecessor in interest.

            TITLE VI--PROTECTION OF CERTAIN ORIGINAL DESIGNS

SEC. 601. SHORT TITLE.

    This Act may be referred to as the ``Vessel Hull Design Protection 
Act''.

SEC. 602. PROTECTION OF CERTAIN ORIGINAL DESIGNS.

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

              ``CHAPTER 14--PROTECTION OF ORIGINAL DESIGNS

``Sec.
``1401. Designs protected.
``1402. Designs not subject to protection.
``1403. Revisions, adaptations, and rearrangements.
``1404. Commencement of protection.
``1405. Term of protection.
``1406. Design notice.
``1407. Effect of omission of notice.
``1408. Exclusive rights.
``1409. Infringement.
``1410. Application for registration.
``1411. Benefit of earlier filing date in foreign country.
``1412. Oaths and acknowledgments.
``1413. Examination of application and issue or refusal of 
                            registration.
``1414. Certification of registration.
``1415. Publication of announcements and indexes.
``1416. Fees.
``1417. Regulations.
``1418. Copies of records.
``1419. Correction of errors in certificates.
``1420. Ownership and transfer.
``1421. Remedy for infringement.
``1422. Injunctions.
``1423. Recovery for infringement.
``1424. Power of court over registration.
``1425. Liability for action on registration fraudulently obtained.
``1426. Penalty for false marking.
``1427. Penalty for false representation.
``1428. Enforcement by Treasury and Postal Service .
``1429. Relation to design patent law.
``1430. Common law and other rights unaffected.
``1431. Administrator; Office of the Administrator.
``1432. No retroactive effect.
``Sec. 1401. Designs protected
    ``(a) Designs Protected.--
            ``(1) In general.--The designer or other owner of an 
        original design of a useful article which makes the article 
        attractive or distinctive in appearance to the purchasing or 
        using public may secure the protection provided by this chapter 
        upon complying with and subject to this chapter.
            ``(2) Vessel hulls.--The design of a vessel hull, including 
        a plug or mold, is subject to protection under this chapter, 
        notwithstanding section 1402(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. 1402. Designs not subject to protection
    ``Protection under this chapter shall not be available for a design 
that is--
            ``(1) not original;
            ``(2) staple or commonplace, such as a standard geometric 
        figure, a familiar symbol, an emblem, or a motif, or another 
        shape, pattern, or configuration which has become standard, 
        common, prevalent, or ordinary;
            ``(3) different from a design excluded by paragraph (2) 
        only in insignificant details or in elements which are variants 
        commonly used in the relevant trades;
            ``(4) dictated solely by a utilitarian function of the 
        article that embodies it; or
            ``(5) embodied in a useful article that was made public by 
        the designer or owner in the United States or a foreign country 
        more than 1 year before the date of the application for 
        registration under this chapter.
``Sec. 1403. 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 1402 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. 1404. 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 1413(a) or the date the design is first made 
public as defined by section 1410(b).
``Sec. 1405. 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 1404.
    ``(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. 1406. Design notice
    ``(a) Contents of Design Notice.--(1) Whenever any design for which 
protection is sought under this chapter is made public under section 
1410(b), the owner of the design shall, subject to the provisions of 
section 1407, 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. 1407. Effect of omission of notice
    ``(a) Actions With Notice.--Except as provided in subsection (b), 
the omission of the notice prescribed in section 1406 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 1406 shall prevent any recovery under section 
1423 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. 1408. 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. 1409. Infringement
    ``(a) Acts of Infringement.--Except as provided in subjection (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. 1410. 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 two 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 1406, 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. 1411. 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. 1412. Oaths and acknowledgments
    ``(a) In General.--Oaths and acknowledgments required by this 
chapter--
            ``(1) may be made--
                    ``(A) before any person in the United States 
                authorized by law to administer oaths; or
                    ``(B) when made in a foreign country, before any 
                diplomatic or consular officer of the United States 
                authorized to administer oaths, or before any official 
                authorized to administer oaths in the foreign country 
                concerned, whose authority shall be proved by a 
                certificate of a diplomatic or consular officer of the 
                United States; and
            ``(2) shall be valid if they comply with the laws of the 
        State or country where made.
    ``(b) Written Declaration in Lieu of Oath.--(1) The Administrator 
may by rule prescribe that any document which is to be filed under this 
chapter in the Office of the Administrator and which is required by any 
law, rule, or other regulation to be under oath, may be subscribed to 
by a written declaration in such form as the Administrator may 
prescribe, and such declaration shall be in lieu of the oath otherwise 
required.
    ``(2) Whenever a written declaration under paragraph (1) is used, 
the document containing the declaration shall state that willful false 
statements are punishable by fine or imprisonment, or both, pursuant to 
section 1001 of title 18, and may jeopardize the validity of the 
application or document or a registration resulting therefrom.
``Sec. 1413. 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 1410, and upon payment of the fee prescribed under section 
1416, 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. 1414. 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. 1415. 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. 1416. 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. 1417. Regulations
    ``The Administrator may establish regulations for the 
administration of this chapter.
``Sec. 1418. 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. 1419. 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. 1420. 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 1412 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. 1421. 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 1413(c).
Sec. 1422. 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. 1423. 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. 1424. 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. 1425. 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. 1426. 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 
1406, 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. 1427. 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. 1428. 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 1408 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 1408 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. 1429. Relation to design patent law
    ``The issuance of a design patent under title 35 for an original 
design for an article of manufacture shall terminate any protection of 
the original design under this chapter.
``Sec. 1430. 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. 1431. 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. 1432. No retroactive effect
    ``Protection under this chapter shall not be available for any 
design that has been made public under section 1410(b) before the 
effective date of this chapter.''.

SEC. 603. 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:

``14. Protection of Original Designs........................    1401''.
    (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 14 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.--Section 1400(a) of title 
28, United States Code, is amended by inserting ``or designs'' after 
``mask works''.
    (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 14 of title 17,'' after ``title 17''.

SEC. 604. EFFECTIVE DATE.

    The amendments made by sections 602 and 603 shall take effect one 
year after the date of the enactment of this Act.

            Passed the House of Representatives August 4, 1998.

            Attest:

                                                ROBIN H. CARLE,

                                                                 Clerk.