[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 167 Enrolled Bill (ENR)]

        S.167

                       One Hundred Ninth Congress

                                 of the

                        United States of America


                          AT THE FIRST SESSION

          Begun and held at the City of Washington on Tuesday,
            the fourth day of January, two thousand and five


                                 An Act


 
 To provide for the protection of intellectual property rights, 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 ``Family Entertainment and Copyright 
Act of 2005''.

             TITLE I--ARTISTS' RIGHTS AND THEFT PREVENTION

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Artists' Rights and Theft 
Prevention Act of 2005'' or the ``ART Act''.
    SEC. 102. CRIMINAL PENALTIES FOR UNAUTHORIZED RECORDING OF MOTION 
      PICTURES IN A MOTION PICTURE EXHIBITION FACILITY.
    (a) In General.--Chapter 113 of title 18, United States Code, is 
amended by adding after section 2319A the following new section:

``Sec. 2319B. Unauthorized recording of Motion pictures in a Motion 
            picture exhibition facility

    ``(a) Offense.--Any person who, without the authorization of the 
copyright owner, knowingly uses or attempts to use an audiovisual 
recording device to transmit or make a copy of a motion picture or 
other audiovisual work protected under title 17, or any part thereof, 
from a performance of such work in a motion picture exhibition 
facility, shall--
        ``(1) be imprisoned for not more than 3 years, fined under this 
    title, or both; or
        ``(2) if the offense is a second or subsequent offense, be 
    imprisoned for no more than 6 years, fined under this title, or 
    both.
The possession by a person of an audiovisual recording device in a 
motion picture exhibition facility may be considered as evidence in any 
proceeding to determine whether that person committed an offense under 
this subsection, but shall not, by itself, be sufficient to support a 
conviction of that person for such offense.
    ``(b) Forfeiture and Destruction.--When a person is convicted of a 
violation of subsection (a), the court in its judgment of conviction 
shall, in addition to any penalty provided, order the forfeiture and 
destruction or other disposition of all unauthorized copies of motion 
pictures or other audiovisual works protected under title 17, or parts 
thereof, and any audiovisual recording devices or other equipment used 
in connection with the offense.
    ``(c) Authorized Activities.--This section does not prevent any 
lawfully authorized investigative, protective, or intelligence activity 
by an officer, agent, or employee of the United States, a State, or a 
political subdivision of a State, or by a person acting under a 
contract with the United States, a State, or a political subdivision of 
a State.
    ``(d) Immunity for Theaters.--With reasonable cause, the owner or 
lessee of a motion picture exhibition facility where a motion picture 
or other audiovisual work is being exhibited, the authorized agent or 
employee of such owner or lessee, the licensor of the motion picture or 
other audiovisual work being exhibited, or the agent or employee of 
such licensor--
        ``(1) may detain, in a reasonable manner and for a reasonable 
    time, any person suspected of a violation of this section with 
    respect to that motion picture or audiovisual work for the purpose 
    of questioning or summoning a law enforcement officer; and
        ``(2) shall not be held liable in any civil or criminal action 
    arising out of a detention under paragraph (1).
    ``(e) Victim Impact Statement.--
        ``(1) In general.--During the preparation of the presentence 
    report under rule 32(c) of the Federal Rules of Criminal Procedure, 
    victims of an offense under this section shall be permitted to 
    submit to the probation officer a victim impact statement that 
    identifies the victim of the offense and the extent and scope of 
    the injury and loss suffered by the victim, including the estimated 
    economic impact of the offense on that victim.
        ``(2) Contents.--A victim impact statement submitted under this 
    subsection shall include--
            ``(A) producers and sellers of legitimate works affected by 
        conduct involved in the offense;
            ``(B) holders of intellectual property rights in the works 
        described in subparagraph (A); and
            ``(C) the legal representatives of such producers, sellers, 
        and holders.
    ``(f) State Law Not Preempted.--Nothing in this section may be 
construed to annul or limit any rights or remedies under the laws of 
any State.
    ``(g) Definitions.--In this section, the following definitions 
shall apply:
        ``(1) Title 17 definitions.--The terms `audiovisual work', 
    `copy', `copyright owner', `motion picture', `motion picture 
    exhibition facility', and `transmit' have, respectively, the 
    meanings given those terms in section 101 of title 17.
        ``(2) Audiovisual recording device.--The term `audiovisual 
    recording device' means a digital or analog photographic or video 
    camera, or any other technology or device capable of enabling the 
    recording or transmission of a copyrighted motion picture or other 
    audiovisual work, or any part thereof, regardless of whether 
    audiovisual recording is the sole or primary purpose of the 
    device.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 113 of title 18, United States Code, is amended by inserting 
after the item relating to section 2319A the following:

``2319B. Unauthorized recording of motion pictures in a motion picture 
          exhibition facility.''.
    (c) Definition.--Section 101 of title 17, United States Code, is 
amended by inserting after the definition of ``Motion pictures'' the 
following: ``The term ``motion picture exhibition facility'' means a 
movie theater, screening room, or other venue that is being used 
primarily for the exhibition of a copyrighted motion picture, if such 
exhibition is open to the public or is made to an assembled group of 
viewers outside of a normal circle of a family and its social 
acquaintances.''.
    SEC. 103. CRIMINAL INFRINGEMENT OF A WORK BEING PREPARED FOR 
      COMMERCIAL DISTRIBUTION.
    (a) Prohibited Acts.--Section 506(a) of title 17, United States 
Code, is amended to read as follows:
    ``(a) Criminal Infringement.--
        ``(1) In general.--Any person who willfully infringes a 
    copyright shall be punished as provided under section 2319 of title 
    18, if the infringement was committed--
            ``(A) for purposes of commercial advantage or private 
        financial gain;
            ``(B) by the reproduction or distribution, including by 
        electronic means, during any 180-day period, of 1 or more 
        copies or phonorecords of 1 or more copyrighted works, which 
        have a total retail value of more than $1,000; or
            ``(C) by the distribution of a work being prepared for 
        commercial distribution, by making it available on a computer 
        network accessible to members of the public, if such person 
        knew or should have known that the work was intended for 
        commercial distribution.
        ``(2) Evidence.--For purposes of this subsection, evidence of 
    reproduction or distribution of a copyrighted work, by itself, 
    shall not be sufficient to establish willful infringement of a 
    copyright.
        ``(3) Definition.--In this subsection, the term `work being 
    prepared for commercial distribution' means--
            ``(A) a computer program, a musical work, a motion picture 
        or other audiovisual work, or a sound recording, if, at the 
        time of unauthorized distribution--
                ``(i) the copyright owner has a reasonable expectation 
            of commercial distribution; and
                ``(ii) the copies or phonorecords of the work have not 
            been commercially distributed; or
            ``(B) a motion picture, if, at the time of unauthorized 
        distribution, the motion picture--
                ``(i) has been made available for viewing in a motion 
            picture exhibition facility; and
                ``(ii) has not been made available in copies for sale 
            to the general public in the United States in a format 
            intended to permit viewing outside a motion picture 
            exhibition facility.''.
    (b) Criminal Penalties.--Section 2319 of title 18, United States 
Code, is amended--
        (1) in subsection (a)--
            (A) by striking ``Whoever'' and inserting ``Any person 
        who''; and
            (B) by striking ``and (c) of this section'' and inserting 
        ``, (c), and (d)'';
        (2) in subsection (b), by striking ``section 506(a)(1)'' and 
    inserting ``section 506(a)(1)(A)'';
        (3) in subsection (c), by striking ``section 506(a)(2) of title 
    17, United States Code'' and inserting ``section 506(a)(1)(B) of 
    title 17'';
        (4) by redesignating subsections (d) and (e) as subsections (e) 
    and (f), respectively;
        (5) by adding after subsection (c) the following:
    ``(d) Any person who commits an offense under section 506(a)(1)(C) 
of title 17--
        ``(1) shall be imprisoned not more than 3 years, fined under 
    this title, or both;
        ``(2) shall be imprisoned not more than 5 years, fined under 
    this title, or both, if the offense was committed for purposes of 
    commercial advantage or private financial gain;
        ``(3) shall be imprisoned not more than 6 years, fined under 
    this title, or both, if the offense is a second or subsequent 
    offense; and
        ``(4) shall be imprisoned not more than 10 years, fined under 
    this title, or both, if the offense is a second or subsequent 
    offense under paragraph (2).''; and
        (6) in subsection (f), as redesignated--
            (A) in paragraph (1), by striking ``and'' at the end;
            (B) in paragraph (2), by striking the period at the end and 
        inserting a semicolon; and
            (C) by adding at the end the following:
        ``(3) the term `financial gain' has the meaning given the term 
    in section 101 of title 17; and
        ``(4) the term `work being prepared for commercial 
    distribution' has the meaning given the term in section 506(a) of 
    title 17.''.
    SEC. 104. CIVIL REMEDIES FOR INFRINGEMENT OF A WORK BEING PREPARED 
      FOR COMMERCIAL DISTRIBUTION.
    (a) Preregistration.--Section 408 of title 17, United States Code, 
is amended by adding at the end the following:
    ``(f) Preregistration of Works Being Prepared for Commercial 
Distribution.--
        ``(1) Rulemaking.--Not later than 180 days after the date of 
    enactment of this subsection, the Register of Copyrights shall 
    issue regulations to establish procedures for preregistration of a 
    work that is being prepared for commercial distribution and has not 
    been published.
        ``(2) Class of works.--The regulations established under 
    paragraph (1) shall permit preregistration for any work that is in 
    a class of works that the Register determines has had a history of 
    infringement prior to authorized commercial distribution.
        ``(3) Application for registration.--Not later than 3 months 
    after the first publication of a work preregistered under this 
    subsection, the applicant shall submit to the Copyright Office--
            ``(A) an application for registration of the work;
            ``(B) a deposit; and
            ``(C) the applicable fee.
        ``(4) Effect of untimely application.--An action under this 
    chapter for infringement of a work preregistered under this 
    subsection, in a case in which the infringement commenced no later 
    than 2 months after the first publication of the work, shall be 
    dismissed if the items described in paragraph (3) are not submitted 
    to the Copyright Office in proper form within the earlier of--
            ``(A) 3 months after the first publication of the work; or
            ``(B) 1 month after the copyright owner has learned of the 
        infringement.''.
    (b) Infringement Actions.--Section 411(a) of title 17, United 
States Code, is amended by inserting ``preregistration or'' after 
``shall be instituted until''.
    (c) Exclusion.--Section 412 of title 17, United States Code, is 
amended by inserting after ``section 106A(a)'' the following: ``, an 
action for infringement of the copyright of a work that has been 
preregistered under section 408(f) before the commencement of the 
infringement and that has an effective date of registration not later 
than the earlier of 3 months after the first publication of the work or 
1 month after the copyright owner has learned of the infringement,''.

SEC. 105. FEDERAL SENTENCING GUIDELINES.

    (a) Review and Amendment.--Not later than 180 days after the date 
of enactment of this Act, the United States Sentencing Commission, 
pursuant to its authority under section 994 of title 28, United States 
Code, and in accordance with this section, shall review and, if 
appropriate, amend the Federal sentencing guidelines and policy 
statements applicable to persons convicted of intellectual property 
rights crimes, including any offense under--
        (1) section 506, 1201, or 1202 of title 17, United States Code; 
    or
        (2) section 2318, 2319, 2319A, 2319B, or 2320 of title 18, 
    United States Code.
    (b) Authorization.--The United States Sentencing Commission may 
amend the Federal sentencing guidelines in accordance with the 
procedures set forth in section 21(a) of the Sentencing Act of 1987 (28 
U.S.C. 994 note) as though the authority under that section had not 
expired.
    (c) Responsibilities of United States Sentencing Commission.--In 
carrying out this section, the United States Sentencing Commission 
shall--
        (1) take all appropriate measures to ensure that the Federal 
    sentencing guidelines and policy statements described in subsection 
    (a) are sufficiently stringent to deter, and adequately reflect the 
    nature of, intellectual property rights crimes;
        (2) determine whether to provide a sentencing enhancement for 
    those convicted of the offenses described in subsection (a), if the 
    conduct involves the display, performance, publication, 
    reproduction, or distribution of a copyrighted work before it has 
    been authorized by the copyright owner, whether in the media format 
    used by the infringing party or in any other media format;
        (3) determine whether the scope of ``uploading'' set forth in 
    application note 3 of section 2B5.3 of the Federal sentencing 
    guidelines is adequate to address the loss attributable to people 
    who, without authorization, broadly distribute copyrighted works 
    over the Internet; and
        (4) determine whether the sentencing guidelines and policy 
    statements applicable to the offenses described in subsection (a) 
    adequately reflect any harm to victims from copyright infringement 
    if law enforcement authorities cannot determine how many times 
    copyrighted material has been reproduced or distributed.

  TITLE II--EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO 
                       CONTENT IN MOTION PICTURES

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Family Movie Act of 2005''.
    SEC. 202. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO 
      CONTENT IN MOTION PICTURES.
    (a) In General.--Section 110 of title 17, United States Code, is 
amended--
        (1) in paragraph (9), by striking ``and'' after the semicolon 
    at the end;
        (2) in paragraph (10), by striking the period at the end and 
    inserting ``; and'';
        (3) by inserting after paragraph (10) the following:
        ``(11) the making imperceptible, by or at the direction of a 
    member of a private household, of limited portions of audio or 
    video content of a motion picture, during a performance in or 
    transmitted to that household for private home viewing, from an 
    authorized copy of the motion picture, or the creation or provision 
    of a computer program or other technology that enables such making 
    imperceptible and that is designed and marketed to be used, at the 
    direction of a member of a private household, for such making 
    imperceptible, if no fixed copy of the altered version of the 
    motion picture is created by such computer program or other 
    technology.''; and
        (4) by adding at the end the following:
    ``For purposes of paragraph (11), the term `making imperceptible' 
does not include the addition of audio or video content that is 
performed or displayed over or in place of existing content in a motion 
picture.
    ``Nothing in paragraph (11) shall be construed to imply further 
rights under section 106 of this title, or to have any effect on 
defenses or limitations on rights granted under any other section of 
this title or under any other paragraph of this section.''.
    (b) Exemption From Trademark Infringement.--Section 32 of the 
Trademark Act of 1946 (15 U.S.C. 1114) is amended by adding at the end 
the following:
    ``(3)(A) Any person who engages in the conduct described in 
paragraph (11) of section 110 of title 17, United States Code, and who 
complies with the requirements set forth in that paragraph is not 
liable on account of such conduct for a violation of any right under 
this Act. This subparagraph does not preclude liability, nor shall it 
be construed to restrict the defenses or limitations on rights granted 
under this Act, of a person for conduct not described in paragraph (11) 
of section 110 of title 17, United States Code, even if that person 
also engages in conduct described in paragraph (11) of section 110 of 
such title.
    ``(B) A manufacturer, licensee, or licensor of technology that 
enables the making of limited portions of audio or video content of a 
motion picture imperceptible as described in subparagraph (A) is not 
liable on account of such manufacture or license for a violation of any 
right under this Act, if such manufacturer, licensee, or licensor 
ensures that the technology provides a clear and conspicuous notice at 
the beginning of each performance that the performance of the motion 
picture is altered from the performance intended by the director or 
copyright holder of the motion picture. The limitations on liability in 
subparagraph (A) and this subparagraph shall not apply to a 
manufacturer, licensee, or licensor of technology that fails to comply 
with this paragraph.
    ``(C) The requirement under subparagraph (B) to provide notice 
shall apply only with respect to technology manufactured after the end 
of the 180-day period beginning on the date of the enactment of the 
Family Movie Act of 2005.
    ``(D) Any failure by a manufacturer, licensee, or licensor of 
technology to qualify for the exemption under subparagraphs (A) and (B) 
shall not be construed to create an inference that any such party that 
engages in conduct described in paragraph (11) of section 110 of title 
17, United States Code, is liable for trademark infringement by reason 
of such conduct.''.
    (c) Definition.--In this section, the term ``Trademark Act of 
1946'' means the Act entitled ``An Act to provide for the registration 
and protection of trademarks used in commerce, to carry out the 
provisions of certain international conventions, and for other 
purposes'', approved July 5, 1946 (15 U.S.C. 1051 et seq.).

                 TITLE III--NATIONAL FILM PRESERVATION
  Subtitle A--Reauthorization of the National Film Preservation Board

SEC. 301. SHORT TITLE.

    This subtitle may be cited as the ``National Film Preservation Act 
of 2005''.

SEC. 302. REAUTHORIZATION AND AMENDMENT.

    (a) Duties of the Librarian of Congress.--Section 103 of the 
National Film Preservation Act of 1996 (2 U.S.C. 179m) is amended--
        (1) in subsection (b)--
            (A) by striking ``film copy'' each place that term appears 
        and inserting ``film or other approved copy'';
            (B) by striking ``film copies'' each place that term 
        appears and inserting ``film or other approved copies''; and
            (C) in the third sentence, by striking ``copyrighted'' and 
        inserting ``copyrighted, mass distributed, broadcast, or 
        published''; and
        (2) by adding at the end the following:
    ``(c) Coordination of Program With Other Collection, Preservation, 
and Accessibility Activities.--In carrying out the comprehensive 
national film preservation program for motion pictures established 
under the National Film Preservation Act of 1992, the Librarian, in 
consultation with the Board established pursuant to section 104, 
shall--
        ``(1) carry out activities to make films included in the 
    National Film registry more broadly accessible for research and 
    educational purposes, and to generate public awareness and support 
    of the Registry and the comprehensive national film preservation 
    program;
        ``(2) review the comprehensive national film preservation plan, 
    and amend it to the extent necessary to ensure that it addresses 
    technological advances in the preservation and storage of, and 
    access to film collections in multiple formats; and
        ``(3) wherever possible, undertake expanded initiatives to 
    ensure the preservation of the moving image heritage of the United 
    States, including film, videotape, television, and born digital 
    moving image formats, by supporting the work of the National Audio-
    Visual Conservation Center of the Library of Congress, and other 
    appropriate nonprofit archival and preservation organizations.''.
    (b) National Film Preservation Board.--Section 104 of the National 
Film Preservation Act of 1996 (2 U.S.C. 179n) is amended--
        (1) in subsection (a)(1) by striking ``20'' and inserting 
    ``22'';
        (2) in subsection (a)(2) by striking ``three'' and inserting 
    ``5'';
        (3) in subsection (d) by striking ``11'' and inserting ``12''; 
    and
        (4) by striking subsection (e) and inserting the following:
    ``(e) Reimbursement of Expenses.--Members of the Board shall serve 
without pay, but may receive travel expenses, including per diem in 
lieu of subsistence, in accordance with sections 5702 and 5703 of title 
5, United States Code.''.
    (c) National Film Registry.--Section 106 of the National Film 
Preservation Act of 1996 (2 U.S.C. 179p) is amended by adding at the 
end the following:
    ``(e) National Audio-Visual Conservation Center.--The Librarian 
shall utilize the National Audio-Visual Conservation Center of the 
Library of Congress at Culpeper, Virginia, to ensure that preserved 
films included in the National Film Registry are stored in a proper 
manner, and disseminated to researchers, scholars, and the public as 
may be appropriate in accordance with--
        ``(1) title 17, United States Code; and
        ``(2) the terms of any agreements between the Librarian and 
    persons who hold copyrights to such audiovisual works.''.
    (d) Use of Seal.--Section 107(a) of the National Film Preservation 
Act of 1996 (2 U.S.C. 179q(a)) is amended--
        (1) in paragraph (1), by inserting ``in any format'' after ``or 
    any copy''; and
        (2) in paragraph (2), by striking ``or film copy'' and 
    inserting ``in any format''.
    (e) Effective Date.--Section 113 of the National Film Preservation 
Act of 1996 (2 U.S.C. 179w) is amended by striking ``7'' and inserting 
``13''.

     Subtitle B--Reauthorization of the National Film Preservation 
                               Foundation

SEC. 311. SHORT TITLE.

    This subtitle may be cited as the ``National Film Preservation 
Foundation Reauthorization Act of 2005''.

SEC. 312. REAUTHORIZATION AND AMENDMENT.

    (a) Board of Directors.--Section 151703 of title 36, United States 
Code, is amended--
        (1) in subsection (b)(2)(A), by striking ``nine'' and inserting 
    ``12''; and
        (2) in subsection (b)(4), by striking the second sentence and 
    inserting ``There shall be no limit to the number of terms to which 
    any individual may be appointed.''.
    (b) Powers.--Section 151705 of title 36, United States Code, is 
amended in subsection (b) by striking ``District of Columbia'' and 
inserting ``the jurisdiction in which the principal office of the 
corporation is located''.
    (c) Principal Office.--Section 151706 of title 36, United States 
Code, is amended by inserting ``, or another place as determined by the 
board of directors'' after ``District of Columbia''.
    (d) Authorization of Appropriations.--Section 151711 of title 36, 
United States Code, is amended by striking subsections (a) and (b) and 
inserting the following:
    ``(a) Authorization of Appropriations.--There are authorized to be 
appropriated to the Library of Congress amounts necessary to carry out 
this chapter, not to exceed $530,000 for each of the fiscal years 2005 
through 2009. These amounts are to be made available to the corporation 
to match any private contributions (whether in currency, services, or 
property) made to the corporation by private persons and State and 
local governments.
    ``(b) Limitation Related to Administrative Expenses.--Amounts 
authorized under this section may not be used by the corporation for 
management and general or fundraising expenses as reported to the 
Internal Revenue Service as part of an annual information return 
required under the Internal Revenue Code of 1986.''.

                 TITLE IV--PRESERVATION OF ORPHAN WORKS

SEC. 401. SHORT TITLE.

    This title may be cited as the ``Preservation of Orphan Works 
Act''.
    SEC. 402. REPRODUCTION OF COPYRIGHTED WORKS BY LIBRARIES AND 
      ARCHIVES.
    Section 108(i) of title 17, United States Code, is amended by 
striking ``(b) and (c)'' and inserting ``(b), (c), and (h)''.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.