Congressional Record, Volume 142 Issue 80 (Tuesday, June 4, 1996)

[Congressional Record Volume 142, Number 80 (Tuesday, June 4, 1996)]
[House]
[Pages H5781-H5784]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Mr. MOORHEAD. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 1861) to make technical corrections in the Satellite Home
Viewer Act of 1994 and other provisions of title 17, United States
Code, as amended.
The Clerk read as follows:

H.R. 1861

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Copyright Clarifications Act
of 1996''.

SEC. 2. SATELLITE HOME VIEWER ACT.

The Satellite Home Viewer Act of 1994 (Public Law 103-369)
is amended as follows:
(1) Section 2(3)(A) is amended to read as follows:
``(A) in clause (i) by striking `12 cents' and inserting
`17.5 cents per subscriber in the case of superstations that
as retransmitted by the satellite carrier include any program
which, if delivered by any cable system in the United States,
would be subject to the syndicated exclusivity rules of the
Federal Communications Commission, and 14 cents per
subscriber in the case of superstations that are syndex-proof
as defined

[[Page H5782]]

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

SEC. 3. COPYRIGHT IN RESTORED WORKS.

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

SEC. 4. LICENSES FOR NONEXEMPT SUBSCRIPTION TRANSMISSIONS.

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

SEC. 5. ROYALTY PAYABLE UNDER COMPULSORY LICENSE.

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

SEC. 6. NEGOTIATED LICENSE FOR JUKEBOXES.

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

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

Section 117 of title 17, United States Code, is amended as
follows:
(1) Strike ``Notwithstanding'' and insert the following:
``(a) Making of Additional Copy or Adaptation by Owner of
Copy.--Notwithstanding''.
(2) Strike ``Any exact'' and insert the following:
``(b) Lease, Sale, or Other Transfer of Additional Copy or
Adaptation.--Any exact''.
(3) Add at the end the following:
``(c) Machine Maintenance or Repair.--Notwithstanding the
provisions of section 106, it is not an infringement for the
owner or lessee of a machine to make or authorize the making
of a copy of a computer program if such copy is made solely
by virtue of the activation of a machine that lawfully
contains an authorized copy of the computer program, for
purposes only of maintenance or repair of that machine,
provided that--
``(1) such new copy is used in no other manner and is
destroyed immediately after the maintenance or repair is
completed, and
``(2) with respect to any computer program or part thereof
that is not necessary for that machine to be activated, such
program or part thereof is not accessed or used other than to
make such new copy by virtue of the activation of the
machine.
``(d) Definitions.--For purposes of this section--
``(1) the term `maintenance' of a machine means servicing
the machine in order to make it work in accordance with its
original specifications and any changes to those
specifications authorized for that machine; and
``(2) the term `repair' of a machine means restoring it to
the state of working in accordance with its original
specifications and any changes to those specifications
authorized for that machine.''.

SEC. 8. PUBLIC BROADCASTING COMPULSORY LICENSE.

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

SEC. 9. REGISTRATION AND INFRINGEMENT ACTIONS.

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

SEC. 10. COPYRIGHT OFFICE FEES.

(a) Fee Increases.--Section 708(b) of title 17, United
States Code, is amended to read as follows:
``(b) In calendar year 1996 and in any subsequent calendar
year, the Register of Copyrights, by regulation, may increase
the fees specified in subsection (a) in the following manner:
``(1) The Register shall conduct a study of the costs
incurred by the Copyright Office for the registration of
claims, the recordation of documents, and the provision of
services. The study shall also consider the timing of any
increase in fees and the authority to use such fees
consistent with the budget.
``(2) The Register shall have discretion to increase fees
up to the reasonable costs incurred by the Copyright Office
for the services described in paragraph (1) plus a reasonable
inflation adjustment to account for any estimated increase in
costs.
``(3) Any newly established fee based on paragraph (2)
shall be rounded off to the nearest dollar, or for a fee less
than $12, rounded off to the nearest 50 cents.

[[Page H5783]]

``(4) The fees shall be fair and equitable and give due
consideration to the objectives of the copyright system.
``(5) If upon completion of the study, the Register
determines that the fees should be increased, the Register
shall prepare a proposed fee schedule and submit the schedule
with the accompanying economic analysis to the Congress. The
fees proposed by the Register may be instituted after the end
of 120 days after the schedule is submitted to the Congress
unless, within that 120-day period, a law is enacted stating
in substance that the Congress does not approve the
schedule.''.
(b) Deposit of Fees.--Section 708(d) of such title is
amended to read as follows:
``(d)(1) Except as provided in paragraph (2), all fees
received under this section shall be deposited by the
Register of Copyrights in the Treasury of the United States
and shall be credited to the appropriations for necessary
expenses of the Copyright Office. Such fees that are
collected shall remain available until expended. The Register
may, in accordance with regulations that he or she shall
prescribe, refund any sum paid by mistake or in excess of the
fee required by this section.
``(2) In the case of fees deposited against future
services, the Register of Copyrights shall request the
Secretary of the Treasury to invest in interest-bearing
securities in the United States Treasury any portion of the
fees that, as determined by the Register, is not required to
meet current deposit account demands. Funds shall be invested
in securities that permit funds to be available to the
Copyright Office at all times if they are determined to be
necessary to meet current deposit account demands. Such
investments shall be in public debt securities with
maturities suitable to the needs of the fund, as determined
by the Register of Copyrights, and bearing interest at rates
determined by the Secretary of the Treasury, taking into
consideration current market yields on outstanding marketable
obligations of the United States of comparable maturities.
``(3) The income on such investments shall be deposited in
the Treasury of the United States and shall be credited to
the appropriations for necessary expenses of the Copyright
Office.''.

SEC. 11. COPYRIGHT ARBITRATION ROYALTY PANELS.

(a) Establishment and Purpose.--Section 801 of title 17,
United States Code, is amended--
(1) in subsection (b)(1) by striking ``and 116'' in the
first sentence and inserting ``116, and 119'';
(2) in subsection (c) by inserting after ``panel'' at the
end of the sentence the following:

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

SEC. 12. DIGITAL AUDIO RECORDING DEVICES AND MEDIA.

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

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

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

SEC. 14. CONFORMING AMENDMENT.

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

SEC. 15. EFFECTIVE DATES.

(a) In General.--Except as provided in subsection (b), the
amendments made by this Act shall take effect on the date of
the enactment of this Act.
(b) Satellite Home Viewer Act.--The amendments made by
section 1 shall be effective as if enacted as part of the
Satellite Home Viewer Act of 1994 (Public Law 103-369).
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
California [Mr. Moorhead] and the gentlewoman from Colorado [Mrs.
Schroeder] will each be recognized for 20 minutes.
The Chair recognizes the gentleman from California [Mr. Moorhead].

general leave

Mr. MOORHEAD. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks and include extraneous material on H.R. 1861.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
Mr. MOORHEAD. Mr. Speaker, I yield myself such time as I may consume.
(Mr. MOORHEAD asked and was given permission to revise and extend his
remarks.)
Mr. MOORHEAD. Mr. Speaker, I rise in support of H.R. 1861, the
Copyright Clarifications Act of 1996. This important legislation will
assist the U.S. Copyright Office in carrying out its duties, including
giving the Office the ability to set reasonable fees for basic
services, subject to congressional approval. It corrects or clarifies
the language in several recent amendments to the Copyright act so that
Congress' original intent can be better achieved. Two provisions
resolve problems created by recent judicial interpretations of
provisions of the copyright law. One of these amendments makes clear
that the distribution of musical disks or tapes before 1978 did not
publish the musical compositions embodied in the disks or tapes. The
other amendment ensures that independent service organizations have the
ability to activate a computer to maintain and repair its hardware
components without being held liable by a court for copyright
infringement due to that activation alone.
The U.S. Copyright Office is the agency charged with primary
responsibility for implementing the provisions of the Copyright Act. In
early 1995, the Copyright Office submitted to the Subcommittee on
Courts and Intellectual Property a number of recommendations to clarify
or correct the following: the Copyright Fees and Technical Amendments
Act of 1989, the Audio Home Recording Act of 1992, the Copyright
Royalty Tribunal Reform Act of 1993, the Satellite Home Viewer Act of
1994, and the Digital Performance Right in Sound Recordings Act of
1995. This legislation is the result of those efforts and I want to
congratulate the Register of Copyrights, Marybeth Peters, and her
staff, for their great initiative and hard work.

This legislation amends section 117 to ensure that independent
service organizations do not inadvertently become liable for copyright
infringement merely because they have turned on a machine in order to
service its hardware components. The language contained in this section
of the bill was driven by the introduction of H.R. 533, by
Representative Knollenberg of Michigan. I thank Mr. Knollenberg for
bringing this important matter to the subcommittee's attention and for
leading the way in negotiations between the parties which resulted in
the language contained in this bill.
A provision of this bill which clarifies the law to ensure that the
mere distribution of musical disks or tapes before 1978 did not
constitute a publication of the musical composition embodied in those
disks or tapes comes from a decision of the Ninth Circuit in the case
of La Cienega Music Co. which conflicts with 90 years of practice of
the U.S. Copyright Office and the longstanding legal precedent in this
country, thereby casting a black cloud over the rights of every U.S.
music publisher for any pre-1978 composition released on phonorecords.
I want to take a moment to thank Mr. Bernard Besman, the owner of La
Cienega Music Co., who has fought so hard to exhaust his remedies in
the courts, and who is primarily responsible for the necessary
clarification to the law that exists in H.R. 1861. Music publishers,
songwriters, and all those involved in the creation of music owe Mr.
Besman deep thanks for his personal sacrifice

[[Page H5784]]

in pursuing through the judicial and legislative system a just solution
to a wrong about which he felt strongly. He can be assured that we will
work quickly to get this piece of legislation to the President's desk
for his signature so that Mr. Besman's fight for all music writers and
publishers can come to a rewarding end.
Mr. Speaker, all of the provisions contained in this bill are
necessary for the proper functioning of the U.S. Copyright Office and
the Copyright system, I am unaware of any opposition to this
legislation, and I urge a favorable vote on H.R. 1861.
Mr. Speaker, I reserve the balance of my time.
Mrs. SCHROEDER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker. I again thank my subcommittee chairman, the
distinguished gentleman from California, [Mr. Moorhead], and I join the
subcommittee chairman and the members of the subcommittee in supporting
H.R. 1861, which has a whole number of provisions that clarify the
copyright law.
So we are doing two things today. In the prior bill we increased the
penalties, and here we are making it as clear as possible what the
copyright law should be. Some of these provisions correct drafting
errors in prior recent amendments to the law. Other provisions are
intended to assist the Copyright Office in carrying out their duties.
These provisions are basically technical and housekeeping in nature.
This is one of the few housekeeping tasks I ever do in my role here.
They are described in detail in the bill report that accompanies this.
Another provision reinstates the longstanding view of the Copyright
Office that has been confirmed by the Second Circuit Court of Appeals
that the sale or distribution of recordings to the public before 1978
did not constitute publication of the music composition embodied in the
recording.

{time} 1515

This longstanding view, however, was rejected by the ninth circuit
last year, and that created a good deal of uncertainty for many musical
works that have been recorded and sold before 1978. This bill is
intended to remove that uncertainty by confirming the longstanding view
of the Copyright Office and what everybody had thought had been the law
before the ninth circuit decision.
Finally, there is a narrowly crafted provision that enables
independent service organizations that have the ability to activate a
computer to maintain and repair its hardware components without
becoming liable for copyright infringement.
I want to emphasize the extremely narrow reach of this provision. It
is designed to maintain undiminished copyright protection to authors of
computer programs, while making it possible for third parties to
service the computer hardware.
The provisions of this bill have received the support of the Register
of Copyrights who testified before our subcommittee on behalf of the
U.S. Copyright Office. I urge my colleagues to support this bill.
Mr. Speaker, having no further requests for time, I yield back the
balance of my time.
Mr. MOORHEAD. Mr. Speaker, I yield 5 minutes to the gentleman from
Michigan [Mr. Knollenberg].
Mr. KNOLLENBERG. Mr. Speaker, I thank the gentleman for yielding time
to me.
Mr. Speaker, I want to thank Chairman Moorhead for pushing this bill
through Congress. It is a tribute to his fine leadership--and
leadership we will miss when he departs at the end of this Congress.
I am very pleased the chairman has provided this opportunity to move
this important, bipartisan bill through the House. My bill, H.R. 533,
has been included in this legislation, and I want to extend my
appreciation to the chairman for choosing to include our language.
My bill is designed to ensure that independent service organizations
[ISO's] do not inadvertently become liable for copyright infringement
merely because they have turned on a machine in order to service its
hardware components.
As it is written, current law holds them liable when they flip the
switch. It places a heavy burden on our workers who need to service our
computer systems. And a strict enforcement of this law could shut down
the multibillion dollar high technology maintenance industry which
provides thousands of jobs.
In today's business world, our computer service technicians must have
the flexibility to do their jobs without the fear they are breaking
copyright laws.
Every day our reliance on our computer systems is growing, and in
today's deadline-filled, rushed business world, minutes can mean
millions.
These restrictions also have a negative impact on consumers. Costs
and convenience are major factors when using specific computer service
people. Forcing consumers into strict requirements of who can and
cannot service your computer will certainly negatively impact consumers
and businesses alike.
With the personal computer as common in our day-to-day lives as any
other household item, we need to give our computer repairmen the
flexibility and opportunity to service our systems.
At this point I would like to enter into a colloquy with the
distinguished chairman of the Courts and Intellectual Property
Subcommittee.
Mr. Chairman, the report language states:

When a computer is activated, that is when it is turned on,
certain software or parts thereof (generally the machine's
operating system software) is automatically copied into the
machine's random access memory, or RAM.

In the very next sentence it states:

During the course of activating the computer, different
parts of the operating system may reside in the RAM at
different times because the operating system is sometimes
larger than the capacity of the RAM.

Mr. Chairman, does activating the computer mean allowing the entire
operating system to be loaded by the computer into the RAM, even if
different parts of the operating system are not loaded in one step?
Mr. MOORHEAD. If the gentleman will yield, Mr. Speaker, the gentleman
is correct. Activation may include getting the different parts of the
operating system through the RAM. Because the entire operating system
may not entirely fit into the RAM, activation may proceed through a
series of steps until the entire operating system is fully loaded.
Mr. KNOLLENBERG. Again, I want to thank the chairman for his efforts
and hard work. I want to thank him for including my legislation in this
bill.
Mr. MOORHEAD. Mr. Speaker, I have no further requests for time, and I
yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from California [Mr. Moorhead] that the House suspend the
rules and pass the bill, H.R. 1861, as amended.
The question was taken; and (two-thirds having voted in favor
thereof) the rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.

____________________