[105th Congress Public Law 304]
[From the U.S. Government Printing Office]
<DOC>
[DOCID: f:publ304.105]
[[Page 2859]]
DIGITAL MILLENNIUM COPYRIGHT ACT
[[Page 112 STAT. 2860]]
Public Law 105-304
105th Congress
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. <<NOTE: Oct. 28,
1998 - [H.R. 2281]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <<NOTE: Digital Millennium
Copyright Act.>> assembled,
SECTION 1. <<NOTE: 17 USC 101 note.>> 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 TREATIES IMPLEMENTATION
Sec. 101. Short title.
Sec. 102. Technical amendments.
Sec. 103. Copyright protection systems and copyright management
information.
Sec. 104. Evaluation of impact of copyright law and amendments on
electronic
commerce and technological development.
Sec. 105. 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
Sec. 401. Provisions Relating to the Commissioner of Patents and
Trademarks and the Register of Copyrights.
Sec. 402. Ephemeral recordings.
Sec. 403. Limitations on exclusive rights; distance education.
Sec. 404. Exemption for libraries and archives.
Sec. 405. Scope of exclusive rights in sound recordings; ephemeral
recordings.
Sec. 406. Assumption of contractual obligations related to transfers of
rights in
motion pictures.
Sec. 407. Effective date.
TITLE V--PROTECTION OF CERTAIN ORIGINAL DESIGNS
Sec. 501. Short title.
Sec. 502. Protection of certain original designs.
Sec. 503. Conforming amendments.
Sec. 504. Joint study of the effect of this title.
Sec. 505. Effective date.
[[Page 112 STAT. 2861]]
TITLE I--WIPO <<NOTE: WIPO Copyright and Performances and Phonograms
Treaties Implementation Act of 1998. 17 USC 101 note.>> TREATIES
IMPLEMENTATION
SEC. 101. SHORT TITLE.
This title may be cited as the ``WIPO Copyright and Performances and
Phonograms Treaties Implementation Act of 1998''.
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:
[[Page 112 STAT. 2862]]
``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
[[Page 112 STAT. 2863]]
``(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.
``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
[[Page 112 STAT. 2864]]
under this title. <<NOTE: Effective date.>> 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) The prohibition contained in subparagraph (A) shall not apply
to persons who are users of a copyrighted work which is in a particular
class of works, 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).
``(C) <<NOTE: Reports. Regulations.>> During the 2-year period
described in subparagraph (A), and during each succeeding 3-year period,
the Librarian of Congress, upon the recommendation of the Register of
Copyrights, who shall consult with the Assistant Secretary for
Communications and Information of the Department of Commerce and report
and comment on his or her views in making such recommendation, shall
make the determination in a rulemaking proceeding on the record for
purposes of subparagraph (B) of whether persons who are users of 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 Librarian 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 that the prohibition on the circumvention
of technological measures applied to copyrighted works has 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 Librarian considers
appropriate.
``(D) <<NOTE: Publication.>> The Librarian shall publish any class
of copyrighted works for which the Librarian has determined, pursuant to
the rulemaking conducted under subparagraph (C), that noninfringing uses
by persons who are users of a copyrighted work are, or are likely to be,
adversely affected, and the prohibition contained in subparagraph (A)
shall not apply to such users with respect to such class of works 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
[[Page 112 STAT. 2865]]
``(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, so long as such part
or component, or the product in which such part or component is
integrated, does not otherwise fall within the prohibitions of
subsection (a)(2) or (b)(1).
[[Page 112 STAT. 2866]]
``(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, Intelligence, and Other Government
Activities.--This section does not prohibit any lawfully authorized
investigative, protective, information security, 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. For purposes of this subsection, the term
`information security' means activities carried out in order to identify
and address the vulnerabilities of a government computer, computer
system, or computer network.
``(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
[[Page 112 STAT. 2867]]
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 to enable the identification and
analysis under paragraph (1), or for the purpose of enabling
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 paragraph (1) or (2),
as the case may be, provides such information or means solely for the
purpose of enabling 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 applicable
law other than this section.
``(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
[[Page 112 STAT. 2868]]
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 <<NOTE: Deadline.>> to congress.--Not later
than 1 year after the date of the enactment of this chapter, the
Register of Copyrights and the Assistant Secretary for
Communications and Information of the Department of Commerce
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) Exceptions Regarding Minors.--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--
``(1) does not itself violate the provisions of this title;
and
``(2) has the sole purpose to prevent the access of minors
to material on the Internet.
``(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;
[[Page 112 STAT. 2869]]
``(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.
``( j) Security Testing.--
``(1) Definition.--For purposes of this subsection, the term
`security testing' means accessing a computer, computer system,
or computer network, solely for the purpose of good faith
testing, investigating, or correcting, a security flaw or
vulnerability, with the authorization of the owner or operator
of such computer, computer system, or computer network.
``(2) Permissible acts of security testing.--Notwithstanding
the provisions of subsection (a)(1)(A), it is not a violation of
that subsection for a person to engage in an act of security
testing, if 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
security testing was used solely to promote the security
of the owner or operator of such computer, computer
system or computer network, or shared directly with the
developer of such computer, computer system, or computer
network; and
``(B) whether the information derived from the
security testing was used or maintained in a manner that
does not facilitate infringement under this title or a
violation of applicable law other than this section,
including a violation of privacy or breach of security.
``(4) Use of technological means for security testing.--
Notwithstanding the provisions of subsection (a)(2), it is not a
violation of that subsection for a person to develop, produce,
distribute or employ technological means for the sole purpose of
performing the acts of security testing described
[[Page 112 STAT. 2870]]
in subsection (2), provided such technological means does not
otherwise violate section (a)(2).
``(k) Certain Analog Devices and Certain Technological Measures.--
``(1) Certain analog devices.--
``(A) <<NOTE: Effective date.>> Effective 18 months
after the date of the enactment of this chapter, no
person shall manufacture, import, offer to the public,
provide or otherwise traffic in any--
``(i) VHS format analog video cassette
recorder unless such recorder conforms to the
automatic gain control copy control technology;
``(ii) 8mm format analog video cassette
camcorder unless such camcorder conforms to the
automatic gain control technology;
``(iii) Beta format analog video cassette
recorder, unless such recorder conforms to the
automatic gain control copy control technology,
except that this requirement shall not apply until
there are 1,000 Beta format analog video cassette
recorders sold in the United States in any one
calendar year after the date of the enactment of
this chapter;
``(iv) 8mm format analog video cassette
recorder that is not an analog video cassette
camcorder, unless such recorder conforms to the
automatic gain control copy control technology,
except that this requirement shall not apply until
there are 20,000 such recorders sold in the United
States in any one calendar year after the date of
the enactment of this chapter; or
``(v) analog video cassette recorder that
records using an NTSC format video input and that
is not otherwise covered under clauses (i) through
(iv), unless such device conforms to the automatic
gain control copy control technology.
``(B) <<NOTE: Effective date.>> Effective on the
date of the enactment of this chapter, no person shall
manufacture, import, offer to the public, provide or
otherwise traffic in--
``(i) any VHS format analog video cassette
recorder or any 8mm format analog video cassette
recorder if the design of the model of such
recorder has been modified after such date of
enactment so that a model of recorder that
previously conformed to the automatic gain control
copy control technology no longer conforms to such
technology; or
``(ii) any VHS format analog video cassette
recorder, or any 8mm format analog video cassette
recorder that is not an 8mm analog video cassette
camcorder, if the design of the model of such
recorder has been modified after such date of
enactment so that a model of recorder that
previously conformed to the four-line colorstripe
copy control technology no longer conforms to such
technology.
Manufacturers that have not previously manufactured or
sold a VHS format analog video cassette recorder, or an
8mm format analog cassette recorder, shall be required
to conform to the four-line colorstripe copy control
technology in the initial model of any such recorder
manufactured after the date of the enactment of this
chapter,
[[Page 112 STAT. 2871]]
and thereafter to continue conforming to the four-line
colorstripe copy control technology. For purposes of
this subparagraph, an analog video cassette recorder
`conforms to' the four-line colorstripe copy control
technology if it records a signal that, when played back
by the playback function of that recorder in the normal
viewing mode, exhibits, on a reference display device, a
display containing distracting visible lines through
portions of the viewable picture.
``(2) Certain encoding restrictions.--No person shall apply
the automatic gain control copy control technology or
colorstripe copy control technology to prevent or limit consumer
copying except such copying--
``(A) of a single transmission, or specified group
of transmissions, of live events or of audiovisual works
for which a member of the public has exercised choice in
selecting the transmissions, including the content of
the transmissions or the time of receipt of such
transmissions, or both, and as to which such member is
charged a separate fee for each such transmission or
specified group of transmissions;
``(B) from a copy of a transmission of a live event
or an audiovisual work if such transmission is provided
by a channel or service where payment is made by a
member of the public for such channel or service in the
form of a subscription fee that entitles the member of
the public to receive all of the programming contained
in such channel or service;
``(C) from a physical medium containing one or more
prerecorded audiovisual works; or
``(D) from a copy of a transmission described in
subparagraph (A) or from a copy made from a physical
medium described in subparagraph (C).
In the event that a transmission meets both the conditions set
forth in subparagraph (A) and those set forth in subparagraph
(B), the transmission shall be treated as a transmission
described in subparagraph (A).
``(3) Inapplicability.--This subsection shall not--
``(A) require any analog video cassette camcorder to
conform to the automatic gain control copy control
technology with respect to any video signal received
through a camera lens;
``(B) apply to the manufacture, importation, offer
for sale, provision of, or other trafficking in, any
professional analog video cassette recorder; or
``(C) apply to the offer for sale or provision of,
or other trafficking in, any previously owned analog
video cassette recorder, if such recorder was legally
manufactured and sold when new and not subsequently
modified in violation of paragraph (1)(B).
``(4) Definitions.--For purposes of this subsection:
``(A) An `analog video cassette recorder' means a
device that records, or a device that includes a
function that records, on electromagnetic tape in an
analog format the electronic impulses produced by the
video and audio portions of a television program, motion
picture, or other form of audiovisual work.
[[Page 112 STAT. 2872]]
``(B) An `analog video cassette camcorder' means an
analog video cassette recorder that contains a recording
function that operates through a camera lens and through
a video input that may be connected with a television or
other video playback device.
``(C) An analog video cassette recorder `conforms'
to the automatic gain control copy control technology if
it--
``(i) detects one or more of the elements of
such technology and does not record the motion
picture or transmission protected by such
technology; or
``(ii) records a signal that, when played
back, exhibits a meaningfully distorted or
degraded display.
``(D) The term `professional analog video cassette
recorder' means an analog video cassette recorder that
is designed, manufactured, marketed, and intended for
use by a person who regularly employs such a device for
a lawful business or industrial use, including making,
performing, displaying, distributing, or transmitting
copies of motion pictures on a commercial scale.
``(E) The terms `VHS format', `8mm format', `Beta
format', `automatic gain control copy control
technology', `colorstripe copy control technology',
`four-line version of the colorstripe copy control
technology', and `NTSC' have the meanings that are
commonly understood in the consumer electronics and
motion picture industries as of the date of the
enactment of this chapter.
``(5) Violations.--Any violation of paragraph (1) of this
subsection shall be treated as a violation of subsection (b)(1)
of this section. Any violation of paragraph (2) of this
subsection shall be deemed an `act of circumvention' for the
purposes of section 1203(c)(3)(A) of this chapter.
``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.
[[Page 112 STAT. 2873]]
``(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, Intelligence, and Other Government
Activities.--This section does not prohibit any lawfully authorized
investigative, protective, information security, 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. For purposes of this subsection, the term
`information security' means activities carried out in order to identify
and address the vulnerabilities of a government computer, computer
system, or computer network.
``(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
[[Page 112 STAT. 2874]]
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--
[[Page 112 STAT. 2875]]
``(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 3 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
[[Page 112 STAT. 2876]]
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 5
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. <<NOTE: 17 USC 109 note.>> EVALUATION OF IMPACT OF COPYRIGHT
LAW AND AMENDMENTS ON ELECTRONIC COMMERCE AND TECHNOLOGICAL
DEVELOPMENT.
(a) Evaluation by the Register of Copyrights and the Assistant
Secretary for Communications and Information.--The Register of
Copyrights and the Assistant Secretary for Communications and
Information of the Department of Commerce 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.
(b) Report <<NOTE: Deadline.>> to Congress.--The Register of
Copyrights and the Assistant Secretary for Communications and
Information of the Department of Commerce 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
(a),
[[Page 112 STAT. 2877]]
including any legislative recommendations the Register and the Assistant
Secretary may have.
SEC. 105. <<NOTE: 17 USC 101 note.>> EFFECTIVE DATE.
(a) In General.--Except as otherwise provided in this title, 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 <<NOTE: Online Copyright Infringement Liability
Limitation Act.>> COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
SEC. 201. <<NOTE: 17 USC 101 note.>> 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 ( j), for injunctive or other equitable relief,
[[Page 112 STAT. 2878]]
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 ( j), 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
[[Page 112 STAT. 2879]]
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 ( j),
for injunctive or other equitable relief, for infringement of
copyright by reason of the storage at the direction of a user of
[[Page 112 STAT. 2880]]
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 (3), 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) 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
(3), 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 <<NOTE: Records. Public information.>> 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.
``(3) 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.
[[Page 112 STAT. 2881]]
``(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 ( j),
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)(3), 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)(3)(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) Limitation on liability of nonprofit educational
institutions.--(1) When a public or other nonprofit institution of
higher education is a service provider, and when a faculty member or
graduate student who is an employee of such institution
[[Page 112 STAT. 2882]]
is performing a teaching or research function, for the purposes of
subsections (a) and (b) such faculty member or graduate student shall be
considered to be a person other than the institution, and for the
purposes of subsections (c) and (d) such faculty member's or graduate
student's knowledge or awareness of his or her infringing activities
shall not be attributed to the institution, if--
``(A) such faculty member's or graduate student's infringing
activities do not involve the provision of online access to
instructional materials that are or were required or
recommended, within the preceding 3-year period, for a course
taught at the institution by such faculty member or graduate
student;
``(B) the institution has not, within the preceding 3-year
period, received more than two notifications described in
subsection (c)(3) of claimed infringement by such faculty member
or graduate student, and such notifications of claimed
infringement were not actionable under subsection (f ); and
``(C) the institution provides to all users of its system or
network informational materials that accurately describe, and
promote compliance with, the laws of the United States relating
to copyright.
``(2) Injunctions.--For <<NOTE: Applicability.>> the purposes of
this subsection, the limitations on injunctive relief contained in
subsections ( j)(2) and ( j)(3), but not those in ( j)(1), shall apply.
``(f ) 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.
``(g) 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;
[[Page 112 STAT. 2883]]
``(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).
``(h) 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)(3)(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
[[Page 112 STAT. 2884]]
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)(3)(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)(3)(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.
``(i) 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.
``( j) Injunctions.--The <<NOTE: Applicability.>> 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:
[[Page 112 STAT. 2885]]
``(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 <<NOTE: Courts.>> 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
[[Page 112 STAT. 2886]]
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.
``(k) 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.
``(l) 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.
``(m) 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 (i); or
``(2) a service provider gaining access to, removing, or
disabling access to material in cases in which such conduct is
prohibited by law.
``(n) 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.''.
SEC. 203. <<NOTE: 17 USC 512 note.>> 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 <<NOTE: Computer Maintenance Competition Assurance
Act.>> MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
SEC. 301. <<NOTE: 17 USC 101 note.>> SHORT TITLE.
This title may be cited as the ``Computer Maintenance Competition
Assurance Act''.
[[Page 112 STAT. 2887]]
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
SEC. 401. PROVISIONS RELATING TO THE COMMISSIONER OF PATENTS AND
TRADEMARKS AND THE REGISTER OF COPYRIGHTS
(a) Compensation.--(1) Section 3(d) of title 35, United States Code,
is amended by striking ``prescribed by law for Assistant Secretaries of
Commerce'' and inserting ``in effect for level III of the Executive
Schedule under section 5314 of title 5, United States Code''.
(2) Section 701(e) of title 17, United States Code, is amended--
(A) by striking ``IV'' and inserting ``III''; and
(B) by striking ``5315'' and inserting ``5314''.
(3) Section 5314 of title 5, United States Code, is amended by
adding at the end the following:
``Assistant Secretary of Commerce and Commissioner of
Patents and Trademarks.
``Register of Copyrights.''.
(b) Clarification of Authority of the Copyright Office.--Section 701
of title 17, United States Code, is amended--
[[Page 112 STAT. 2888]]
(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 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 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 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 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.''.
SEC. 402. 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)'';
(3) by inserting after ``under a license'' the following:
``, including a statutory license under section 114(f ),'';
(4) 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 and that makes a broadcast
transmission of a performance of a sound recording in a digital
format on a nonsubscription basis,''; and
(5) 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
[[Page 112 STAT. 2889]]
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. 403. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION.
(a) Recommendations <<NOTE: Deadline.>> 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. 404. 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
[[Page 112 STAT. 2890]]
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,'';
(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. 405. 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) in paragraph (1) 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), an eligible nonsubscription transmission, or a
transmission not exempt under paragraph (1) that is made by a
preexisting satellite digital audio radio service shall be
subject to statutory licensing, in accordance with subsection (f
) if--
[[Page 112 STAT. 2891]]
``(A)(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, if
technically feasible, 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) that is made by a preexisting
subscription service in the same transmission medium
used by such service on July 31, 1998, or in the case of
a transmission not exempt under paragraph (1) that is
made by a preexisting satellite digital audio radio
service--
``(i) the transmission does not exceed the
sound recording performance complement; and
``(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) that is made 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--
``(I) the broadcast station makes
broadcast transmissions--
``(aa) in digital format
that regularly exceed the sound
recording performance
complement; or
``(bb) in analog format, a
substantial portion of which, on
a weekly basis, exceed the sound
recording performance
complement; and
``(II) 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 performance complement
as provided in this clause;
[[Page 112 STAT. 2892]]
``(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 the case of a
retransmission of a broadcast transmission by a
transmitting entity that does not have the right
or ability to control the programming of the
broadcast transmission, the requirement of this
clause shall not apply to a prior oral
announcement by the broadcast station, or to an
advance program schedule published, induced, or
facilitated by the broadcast station, if the
transmitting entity does not have actual knowledge
and has not received written notice from the
copyright owner or its representative that the
broadcast station publishes or induces or
facilitates the publication of such advance
program schedule, or if such advance program
schedule is a schedule of classical music
programming published by the broadcast station in
the same manner as published by that broadcast
station on or before September 30, 1998;
``(iii) the transmission--
``(I) is not part of an archived
program of less than 5 hours duration;
``(II) is not part of an archived
program of 5 hours or greater in
duration that is made available for a
period exceeding 2 weeks;
``(III) is not part of a continuous
program which is of less than 3 hours
duration; or
``(IV) is not part of an
identifiable program in which
performances of sound recordings are
rendered in a predetermined order, other
than an archived or continuous program,
that is transmitted at--
``(aa) more than 3 times in
any 2-week period that have been
publicly announced in advance,
in the case of a program of less
than 1 hour in duration, or
``(bb) more than 4 times in
any 2-week period that have been
publicly announced in advance,
in the case of a program of 1
hour or more in duration,
except that the requirement of this
subclause shall not apply in the case of
a retransmission of a broadcast
transmission by a transmitting entity
that does not have the right or ability
to control the programming of the
broadcast transmission, unless the
transmitting entity is given notice in
writing by the copyright owner of the
sound recording that the broadcast
station makes broadcast
[[Page 112 STAT. 2893]]
transmissions that regularly violate
such requirement;
``(iv) the transmitting entity does not
knowingly perform the sound recording, as part of
a service that offers transmissions of visual
images contemporaneously with transmissions of
sound recordings, 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 alone or together with transmissions
by other transmitting entities in order to select
a particular sound recording to be transmitted to
the transmission recipient, except that the
requirement of this clause shall not apply to a
satellite digital audio service that is in
operation, or that is licensed by the Federal
Communications Commission, on or before July 31,
1998;
``(vi) the transmitting entity takes no
affirmative steps to cause or induce the making of
a phonorecord by the transmission recipient, and
if the technology used by the transmitting entity
enables the transmitting entity to limit the
making by the transmission recipient of
phonorecords of the transmission directly in a
digital format, the transmitting entity sets such
technology to limit such making of phonorecords to
the extent permitted by such technology;
``(vii) phonorecords of the sound recording
have been distributed to the public 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 the authority of the copyright
owner, except that the requirement of this clause
shall not apply to a retransmission of a broadcast
transmission by a transmitting entity that does
not have the right or ability to control the
programming of the broadcast transmission, unless
the transmitting entity is given notice in writing
by the copyright owner of the sound recording that
the broadcast station makes broadcast
transmissions that regularly violate such
requirement;
``(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
[[Page 112 STAT. 2894]]
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, except that the
requirement of this clause shall not apply to a
satellite digital audio service that is in
operation, or that is licensed under the authority
of the Federal Communications Commission, on or
before July 31, 1998, to the extent that such
service has designed, developed, or made
commitments to procure equipment or technology
that is not compatible with such technical
measures before such technical measures are widely
adopted by sound recording copyright owners; and
``(ix) the transmitting entity identifies in
textual data 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 displayed to the
transmission recipient by the device or technology
intended for receiving the service provided by the
transmitting entity, 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 and shall not apply in
the case of a retransmission of a broadcast
transmission by a transmitting entity that does
not have the right or ability to control the
programming of the broadcast transmission, or in
the case in which devices or technology intended
for receiving the service provided by the
transmitting entity that have the capability to
display such textual data are not common in the
marketplace.''.
(2) Subsection (f ) is amended--
(A) in the subsection heading by striking
``Nonexempt Subscription'' and inserting ``Certain
Nonexempt'';
(B) 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 transmissions
by preexisting satellite digital audio
radio 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, preexisting subscription services, or
preexisting satellite digital audio radio services
may submit to the Librarian of Congress licenses
covering such subscription transmissions with
respect to such sound recordings.''; and
(C) by striking paragraphs (2), (3), (4), and (5)
and inserting the following:
``(B) <<NOTE: Federal Register, publication.>> In the
absence of license agreements negotiated under subparagraph (A),
during the 60-day period commencing 6
[[Page 112 STAT. 2895]]
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 affected by this paragraph. In
establishing rates and terms for preexisting subscription
services and preexisting satellite digital audio radio 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) <<NOTE: Regulations.>> 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, any
preexisting subscription services, or any preexisting
satellite digital audio radio 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) <<NOTE: Deadline. Federal Register,
publication. Notice.>> 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 public performances of sound
recordings by means of 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 and new subscription
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 paragraph may submit to the Librarian of Congress
licenses covering
[[Page 112 STAT. 2896]]
such eligible nonsubscription transmissions and new subscription
services with respect to such sound recordings. The parties to
each negotiation proceeding shall bear their own costs.
``(B) <<NOTE: Federal Register, publication.>> 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 affected by this paragraph 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 transmitting entity 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 for comparable
types of digital audio transmission services and comparable
circumstances under voluntary license agreements negotiated
under subparagraph (A).
``(C)(i) <<NOTE: Regulations.>> 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
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
[[Page 112 STAT. 2897]]
``(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) <<NOTE: Regulations.>> 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 ``Sub-
scription'';
(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 striking paragraphs (4) and (9) and
redesignating paragraphs (2), (3), (5), (6), (7), and
(8) as paragraphs (3), (5), (9), (12), (13), and (14),
respectively;
[[Page 112 STAT. 2898]]
(B) by inserting after paragraph (1) the following:
``(2) An `archived program' is a predetermined program that
is available repeatedly on the demand of the transmission
recipient and that is performed in the same order from the
beginning, except that an archived program shall not include a
recorded event or broadcast transmission that makes no more than
an incidental use of sound recordings, as long as such recorded
event or broadcast transmission does not contain an entire sound
recording or feature a particular sound recording.'';
(C) by inserting after paragraph (3), as so
redesignated, the following:
``(4) A `continuous program' is a predetermined program that
is continuously performed in the same order and that is accessed
at a point in the program that 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 digital audio transmission not
exempt under subsection (d)(1) that is 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, or in the case
of a subscription service, by all subscribers of the service,
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 noninteractive
subscription
digital audio transmissions and that is not a preexisting
subscription service or a preexisting satellite digital audio
radio service.'';
(E) by inserting after paragraph (9), as so
redesignated, the following:
``(10) A `preexisting satellite digital audio radio service'
is a subscription satellite digital audio radio service provided
pursuant to a satellite digital audio radio service license
issued by the Federal Communications Commission on or before
July 31, 1998, and any renewal of such license to the extent of
[[Page 112 STAT. 2899]]
the scope of the original license, and may include a limited
number of sample channels representative of the subscription
service that are made available on a nonsubscription basis in
order to promote the subscription service.
``(11) 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 transmissions to the public for a
fee on or before July 31, 1998, and may include a limited number
of sample channels representative of the subscription service
that are made available on a nonsubscription basis in order to
promote the subscription service.''; and
(F) by adding at the end the following:
``(15) A `transmission' is either an initial transmission or
a retransmission.''.
(5) <<NOTE: 17 USC 114 note.>> The amendment made by
paragraph (2)(B)(i)(III) of this subsection shall be deemed to
have been enacted as part of the Digital Performance Right in
Sound Recordings Act of 1995, and the publication of notice of
proceedings under section 114(f )(1) of title 17, United States
Code, as in effect upon the effective date of that Act, for the
determination of royalty payments shall be deemed to have been
made for the period beginning on the effective date of that Act
and ending on December 1, 2001.
(6) <<NOTE: 17 USC 114 note.>> The amendments made by this
subsection do not annul, limit, or otherwise impair the rights
that are preserved by section 114 of title 17, United States
Code, including the rights preserved by subsections (c), (d)(4),
and (i) of such section.
(b) Ephemeral Recordings.--Section 112 of title 17, United States
Code, is amended--
(1) by redesignating subsection (e) as subsection (f ); and
(2) by inserting after subsection (d) the following:
``(e) Statutory License.--(1) A transmitting organization entitled
to transmit to the public a performance of a sound recording under the
limitation on exclusive rights specified by section 114(d)(1)(C)(iv) or
under a statutory license in accordance with section 114(f ) is entitled
to a statutory license, under the conditions specified by this
subsection, to make no more than 1 phonorecord of the sound recording
(unless the terms and conditions of the statutory license allow for
more), if the following conditions are satisfied:
``(A) The phonorecord is retained and used solely by the
transmitting organization that made it, and no further
phonorecords are reproduced from it.
``(B) The phonorecord is used solely for the transmitting
organization's own transmissions originating in the United
States under a statutory license in accordance with section
114(f ) or the limitation on exclusive rights specified by
section 114(d)(1)(C)(iv).
``(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.
``(D) Phonorecords of the sound recording have been
distributed to the public under the authority of the copyright
owner or the copyright owner authorizes the transmitting entity
to transmit the sound recording, and the transmitting entity
[[Page 112 STAT. 2900]]
makes the phonorecord under this subsection from a phonorecord
lawfully made and acquired under the authority of the copyright
owner.
``(3) Notwithstanding any provision of the antitrust laws, any
copyright owners of sound recordings and any transmitting organizations
entitled to a statutory license under this subsection may negotiate and
agree upon royalty rates and license terms and conditions for making
phonorecords of such sound recordings under this section 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) <<NOTE: Deadline. Federal Register, publication. Notice.>> 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 offered by transmitting organizations. Any
copyright owners of sound recordings or any transmitting organizations
entitled to 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) <<NOTE: Federal Register, publication.>> 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 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
offered by transmitting organizations. 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; and
``(B) the relative roles of the copyright owner and the
transmitting organization 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
[[Page 112 STAT. 2901]]
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) <<NOTE: Regulations.>> 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 a phonorecord 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 as
permitted under 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.
``(10) Nothing in this subsection annuls, limits, impairs, or
otherwise affects in any way the existence or value of any of
[[Page 112 STAT. 2902]]
the exclusive rights of the copyright owners in a sound recording,
except as otherwise provided in this subsection, or in a musical work,
including the exclusive rights to reproduce and distribute a sound
recording or musical work, including by means of a digital phonorecord
delivery, under sections 106(1), 106(3), and 115, and the right to
perform publicly a sound recording or musical work, including by means
of a digital audio transmission, under sections 106(4) and 106(6).''.
(c) Scope <<NOTE: 17 USC 112 note.>> of Section 112(a) of Title 17
Not Affected.--Nothing in this section or the amendments made by this
section shall affect the scope of section 112(a) of title 17, United
States Code, or the entitlement of any person to an exemption
thereunder.
(d) Procedural Amendments to Chapter 8.--Section 802 of title 17,
United States Code, is amended--
(1) in subsection (f )--
(A) in the first sentence by striking ``60'' and
inserting ``90''; and
(B) in the third sentence by striking ``that 60-day
period'' and inserting ``an additional 30-day period'';
and
(2) in subsection (g) by inserting after the second sentence
the following: ``When this title provides that the royalty rates
or terms that were previously in effect are to expire on a
specified date, any adjustment by the Librarian of those rates
or terms shall be effective as of the day following the date of
expiration of the rates or terms that were previously in effect,
even if the Librarian's decision is rendered on a later date.''.
(e) Conforming Amendments.--(1) Section 801(b)(1) of title 17,
United States Code, is amended in the second sentence by striking
``sections 114, 115, and 116'' and inserting ``sections 114(f )(1)(B),
115, and 116''.
(2) Section 802(c) of title 17, United States Code, is amended by
striking ``section 111, 114, 116, or 119, any person entitled to a
compulsory license'' and inserting ``section 111, 112, 114, 116, or 119,
any transmitting organization entitled to a statutory license under
section 112(f ), any person entitled to a statutory license''.
(3) Section 802(g) of title 17, United States Code, is amended by
striking ``sections 111, 114'' and inserting ``sections 111, 112, 114''.
(4) Section 802(h)(2) of title 17, United States Code, is amended by
striking ``section 111, 114'' and inserting ``section 111, 112, 114''.
(5) Section 803(a)(1) of title 17, United States Code, is amended by
striking ``sections 114, 115'' and inserting ``sections 112, 114, 115''.
(6) Section 803(a)(5) of title 17, United States Code, is
amended--
(A) by striking ``section 114'' and inserting ``section 112
or 114''; and
(B) by striking ``that section'' and inserting ``those
sections''.
SEC. 406. 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:
[[Page 112 STAT. 2903]]
``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.--(1) In the case of a transfer of
copyright ownership under United States law in a motion picture (as the
terms `transfer of copyright ownership' and `motion picture' are 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--
``(A) 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
``(B) 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.
``(2) For purposes of paragraph (1)(A), `knows or has reason to
know' means any of the following:
``(A) Actual knowledge that the collective bargaining
agreement was or will be applicable to the motion picture.
``(B)(i) Constructive knowledge that the collective
bargaining agreement was or will be applicable to the motion
picture, arising from recordation of a document pertaining to
copyright in the motion picture under section 205 of title 17 or
from publication, at a site available to the public on-line that
is operated by the relevant union, of information that
identifies the motion picture as subject to a collective
bargaining agreement with that union, if the site permits
commercially reasonable verification of the date on which the
information was available for access.
``(ii) <<NOTE: Applicability.>> Clause (i) applies only if
the transfer referred to in subsection (a)(1) occurs--
``(I) after the motion picture is completed, or
``(II) before the motion picture is completed and--
``(aa) within 18 months before the filing of
an application for copyright registration for the
motion picture under section 408 of title 17, or
``(bb) if no such application is filed, within
18 months before the first publication of the
motion picture in the United States.
[[Page 112 STAT. 2904]]
``(C) Awareness of other facts and circumstances pertaining
to a particular transfer from which it is apparent that the
collective bargaining agreement was or will be applicable to the
motion picture.
``(b) Scope of Exclusion of Transfers of Public Performance
Rights.--For purposes of this section, the exclusion under subsection
(a) of transfers of copyright ownership in a motion picture that are
limited to public performance rights includes transfers to a terrestrial
broadcast station, cable system, or programmer to the extent that the
station, system, or programmer is functioning as an exhibitor of the
motion picture, either by exhibiting the motion picture on its own
network, system, service, or station, or by initiating the transmission
of an exhibition that is carried on another network, system, service, or
station. When a terrestrial broadcast station, cable system, or
programmer, or other transferee, is also functioning otherwise as a
distributor or as a producer of the motion picture, the public
performance exclusion does not affect any obligations imposed on the
transferee to the extent that it is engaging in such functions.
``(c) Exclusion for Grants of Security Interests.--Subsection (a)
shall not apply to--
``(1) a transfer of copyright ownership consisting solely of
a mortgage, hypothecation, or other security interest; or
``(2) a subsequent transfer of the copyright ownership
secured by the security interest described in paragraph (1) by
or under the authority of the secured party, including a
transfer through the exercise of the secured party's rights or
remedies as a secured party, or by a subsequent transferee.
The exclusion under this subsection shall not affect any rights or
remedies under law or contract.
``(d) Deferral Pending Resolution of Bona Fide Dispute.--A
transferee on which obligations are imposed under subsection (a) by
virtue of paragraph (1) of that subsection may elect to defer
performance of such obligations that are subject to a bona fide dispute
between a union and a prior transferor until that dispute is resolved,
except that such deferral shall not stay accrual of any union claims due
under an applicable collective bargaining agreement.
``(e) Scope of Obligations Determined by Private Agreement.--Nothing
in this section shall expand or diminish the rights, obligations, or
remedies of any person under the collective bargaining agreements or
assumption agreements referred to in this section.
``(f ) 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)(1)(B), the transferor shall be liable
to the transferee for any damages suffered by the transferee as a result
of the failure to notify.
``(g) Determination of Disputes and Claims.--Any dispute concerning
the application of subsections (a) through (f ) 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.
[[Page 112 STAT. 2905]]
``(h) Study.--The Comptroller General, in consultation with the
Register of Copyrights, shall conduct a study of the conditions in the
motion picture industry that gave rise to this section, and the impact
of this section on the <<NOTE: Reports.>> motion picture industry. The
Comptroller General shall report the findings of the study to the
Congress within 2 years after the effective date of this chapter.''.
(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 Obligations.............4001''.
SEC. 407. <<NOTE: 17 USC 108 note.>> EFFECTIVE DATE.
Except as otherwise provided in this title, this title and the
amendments made by this title shall take effect on the date of the
enactment of this Act.
TITLE V--PROTECTION <<NOTE: Vessel Hull Design Protection Act.>> OF
CERTAIN ORIGINAL DESIGNS
SEC. 501. <<NOTE: 17 USC 101 note.>> SHORT TITLE.
This Act may be referred to as the ``Vessel Hull Design Protection
Act''.
SEC. 502. PROTECTION OF CERTAIN ORIGINAL DESIGNS.
Title 17, United States Code, is amended by adding at the end the
following new chapter:
``CHAPTER 13--PROTECTION OF ORIGINAL DESIGNS
``Sec.
``1301. Designs protected.
``1302. Designs not subject to protection.
``1303. Revisions, adaptations, and rearrangements.
``1304. Commencement of protection.
``1305. Term of protection.
``1306. Design notice.
``1307. Effect of omission of notice.
``1308. Exclusive rights.
``1309. Infringement.
``1310. Application for registration.
``1311. Benefit of earlier filing date in foreign country.
``1312. Oaths and acknowledgments.
``1313. Examination of application and issue or refusal of registration.
``1314. Certification of registration.
``1315. Publication of announcements and indexes.
``1316. Fees.
``1317. Regulations.
``1318. Copies of records.
``1319. Correction of errors in certificates.
``1320. Ownership and transfer.
``1321. Remedy for infringement.
``1322. Injunctions.
``1323. Recovery for infringement.
``1324. Power of court over registration.
``1325. Liability for action on registration fraudulently obtained.
``1326. Penalty for false marking.
``1327. Penalty for false representation.
``1328. Enforcement by Treasury and Postal Service.
``1329. Relation to design patent law.
``1330. Common law and other rights unaffected.
``1331. Administrator; Office of the Administrator.
``1332. No retroactive effect.
``Sec. 1301. Designs protected
``(a) Designs Protected.--
[[Page 112 STAT. 2906]]
``(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 1302(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. 1302. 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. 1303. 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 1302 if the design is a substantial
revision, adaptation, or rearrangement of such subject
[[Page 112 STAT. 2907]]
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. 1304. 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 1313(a) or the date the design is first made public as
defined by section 1310(b).
``Sec. 1305. 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 1304.
``(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. 1306. Design notice
``(a) Contents of Design Notice.--(1) Whenever any design for which
protection is sought under this chapter is made public under section
1310(b), the owner of the design shall, subject to the provisions of
section 1307, 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. 1307. Effect of omission of notice
``(a) Actions With Notice.--Except as provided in subsection (b),
the omission of the notice prescribed in section 1306 shall
[[Page 112 STAT. 2908]]
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 1306 shall prevent any recovery under section 1323 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. 1308. 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. 1309. Infringement
``(a) Acts of Infringement.--Except as provided in subsection (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,
[[Page 112 STAT. 2909]]
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. 1310. 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 2 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.
[[Page 112 STAT. 2910]]
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 1306, 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. 1311. 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
[[Page 112 STAT. 2911]]
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. 1312. 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. 1313. 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 1310, and upon payment of the fee prescribed under section 1316,
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. <<NOTE: Publication.>> 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
[[Page 112 STAT. 2912]]
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. <<NOTE: Regulations.>> 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 <<NOTE: Publication.>> 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. 1314. 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. 1315. 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. 1316. 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. 1317. Regulations
``The Administrator may establish regulations for the administration
of this chapter.
[[Page 112 STAT. 2913]]
``Sec. 1318. 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. 1319. 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. 1320. 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 1312 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. 1321. 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;
[[Page 112 STAT. 2914]]
``(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 1313(c).
Sec. 1322. 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. 1323. 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
[[Page 112 STAT. 2915]]
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. 1324. 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. 1325. 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. 1326. 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 1306,
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. 1327. 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.
[[Page 112 STAT. 2916]]
``Sec. 1328. 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 1308 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 1308 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. 1329. Relation to design patent law
``The issuance of a design patent under title 35, United States
Code, for an original design for an article of manufacture shall
terminate any protection of the original design under this chapter.
``Sec. 1330. 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. 1331. 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. 1332. No retroactive effect
``Protection under this chapter shall not be available for any
design that has been made public under section 1310(b) before the
effective date of this chapter.''.
SEC. 503. 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:
``13. Protection of Original Designs.............................1301''.
[[Page 112 STAT. 2917]]
(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 13 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.--(1) Section 1400(a) of title
28, United States Code, is amended by inserting ``or designs'' after
``mask works''.
(2) The section heading for section 1400 of title 28, United States
Code, is amended to read as follows:
``Patents and copyrights, mask works, and designs''.
(3) The item relating to section 1400 in the table of sections at
the beginning of chapter 87 of title 28, United States Code, is amended
to read as follows:
``1400. Patents and copyrights, mask works, and designs.''.
(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 13 of title 17,'' after ``title 17''.
SEC. 504. <<NOTE: 17 USC 1301 note.>> JOINT STUDY OF THE EFFECT OF THIS
TITLE.
(a) In <<NOTE: Deadlines. Reports.>> General.--Not later than 1 year
after the date of the enactment of this Act, and not later than 2 years
after such date of enactment, the Register of Copyrights and the
Commissioner of Patents and Trademarks shall submit to the Committees on
the Judiciary of the Senate and the House of Representatives a joint
report evaluating the effect of the amendments made by this title.
(b) Elements for Consideration.--In carrying out subsection (a), the
Register of Copyrights and the Commissioner of Patents and Trademarks
shall consider--
(1) the extent to which the amendments made by this title
has been effective in suppressing infringement of the design of
vessel hulls;
(2) the extent to which the registration provided for in
chapter 13 of title 17, United States Code, as added by this
title, has been utilized;
(3) the extent to which the creation of new designs of
vessel hulls have been encouraged by the amendments made by this
title;
(4) the effect, if any, of the amendments made by this title
on the price of vessels with hulls protected under such
amendments; and
(5) such other considerations as the Register and the
Commissioner may deem relevant to accomplish the purposes of the
evaluation conducted under subsection (a).
[[Page 112 STAT. 2918]]
SEC. 505. <<NOTE: 17 USC 1301 note.>> EFFECTIVE DATE.
The amendments made by sections 502 and 503 shall take effect on the
date of the enactment of this Act and shall remain in effect until the
end of the 2-year period beginning on such date of enactment. No cause
of action based on chapter 13 of title 17, United States Code, as added
by this title, may be filed after the end of that 2-year period.
Approved October 28, 1998.
LEGISLATIVE HISTORY--H.R. 2281 (S. 2037):
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HOUSE REPORTS: Nos. 105-551, Pt. 1 (Comm. on the Judiciary) and Pt. 2
(Comm. on Commerce) and 105-796 (Comm. of Commerce).
SENATE REPORTS: No. 105-190 accompanying S. 2037 (Comm. on the
Judiciary).
CONGRESSIONAL RECORD, Vol. 144 (1998):
Aug. 4, considered and passed House.
Sept. 17, considered and passed Senate, amended, in lieu of
S. 2037.
Oct. 8, Senate agreed to conference report.
Oct. 12, House agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 34 (1998):
Oct. 28, Presidential statement.
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