Copyright Law of the United States and Related Laws Part 2
110 Copyright Law of the United States
Subject Matter and Scope of Copyright Endnotes
The Satellite Home Viewer Extension and Reauthorization Act of 2004 amended subsec-tion 119(e) by changing the date at the beginning of the sentence from “December 31, 2004” to “December 31, 2009”. Id. at 3394. The Satellite Home Viewer Extension and Reauthoriza-tion Act of 2004 amended section 119 by adding a new subsection (f). Id. at 3394. In 2006, the Copyright Royalty Judges Program Technical Corrections Act amended section 119 by revising the second sentence of (b)(4)(B); by amending (b)(4)(C) in its en-tirety; and by making a technical correction to substitute “arbitration” f or “arbitrary” i n (c)(1)(F)(i). Pub. L. No. 109-303, 120 Stat. 1478, 1482–83. 56. The Satellite Home Viewer Improvement Act of 1999 amended section 119(a)(1) by deleting “primary transmission made by a superstation and embodying a performance or display of a work” and inserting in its place “performance or display of a work embodied in a primary transmission made by a superstation.” Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-543. This amendatory language did not take into account a prior amendment that had inserted “or by the Public Broadcasting Service satellite feed” after “superstation” into the phrase quoted above that was deleted. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-530. There was no mention of the phrase “or by the Public Broadcasting Service satellite feed” in that second amendment. The Intellectual Property and High Technology Technical Amendments Act of 2002 clarified these provisions. Pub. L. No. 107-273, 116 Stat. 1758, 1908. The Act deleted the first change and amended the second to clarify that the amended lan-guage should read, “performance or display of a work embodied in a primary transmission made by a superstation or by the Public Broadcasting Service satellite feed.” Id. 57. The Satellite Home Viewer Act of 1994 states that “The provisions of section 119 (a)(5)(D) … relating to the burden of proof of satellite carriers, shall take effect on January 1, 1997, with respect to civil actions relating to the eligibility of subscribers who subscribed to service as an unserved household before the date of the enactment of this Act [, October 18, 1994].” Pub. L. No. 103-369, 108 Stat. 3477, 3481. 58. The Intellectual Property and High Technology Technical Amendments Act of 2002 made a technical correction to insert the word “a” before “performance.” Pub. L. No. 107-273, 116 Stat. 1758, 1909. 59. The Satellite Home Viewer Improvement Act of 1999 stated that section 119(a), “as amended by section 1005(e)” of the same Act, was amended to add a new paragraph at the end of that subsection. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-531. The Intellectual Property and High Technology Technical Amendments Act of 2002 made a technical cor-rection to clarify that the amendment was to section 119(a) as amended by “section 1005(d)” of the Satellite Home Viewer Improvement Act of 1999 rather than “section 1005(e).” Pub. L. No. 107-273, 116 Stat. 1758, 1908. 60. The Satellite Home Viewer Extension and Reauthorization Act of 2004 was enacted on December 8, 2004. 61. See endnote 60, supra. 62. In 1990, the Architectural Works Copyright Protection Act added section 120. Pub. L. No. 101-650, 104 Stat. 5089, 5133. The effective date provision of the Act states that its amend-ments apply to any work created on or after the date it was enacted, which was December 1, 1990. It also states that the amendments apply to “any architectural work that, on [Decem-ber 1, 1990], is unconstructed and embodied in unpublished plans or drawings, except that Copyright Law of the United States 111
Endnotes Subject Matter and Scope of Copyright
protection for such architectural work under title 17, United States Code, by virtue of the
amendments made by [the Act], shall terminate on December 31, 2002, unless the work is
constructed by that date.” Id., 104 Stat. 5089, 5134.
�63. The Legislative Branch Appropriations Act, 1997, added section 121. Pub. L. No. 104-197, 110 Stat. 2394, 2416. The Work Made for Hire and Copyright Corrections Act of 2000
amended section 121 by substituting “section 106” for “sections 106 and 710.” Pub. L. No.
�106-379, 114 Stat. 1444, 1445.
�The Individuals with Disabilities Education Improvement Act of 2004 amended sec-tion 121 by amending paragraph (c)(3) in its entirety; by adding a new paragraph (c)(4); by
redesignating subsection (c) as (d); and by adding a new subsection (c). Pub. L. No. 108-446,
�118 Stat. 2647, 2807.
�64. The Satellite Home Viewer Improvement Act of 1999 added section 122. Pub. L. No.
�106-113, 113 Stat. 1501, app. I at 1501A-523. The Act states that section 122 shall be effective as
of November 29, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544.
�The Satellite Home Viewer Extension and Reauthorization Act of 2004 amended section
122 by adding a subparagraph (D) to paragraph (j)(2). Pub. L. No. 108-447, 118 Stat. 2809,
�3393, 3409.
�
11 Copyright Law of the United States
Chapter 2
Copyright Ownership and Transfer section page 201 Ownership of copyright .............................................. 114
� 202 Ownership of copyright as distinct from ownership
of material object .................................................... 114
� 203 Termination of transfers and licenses granted by the author ......... 115
� 204 Execution of transfers of copyright ownership ........................ 117
� 205 Recordation of transfers and other documents ....................... 117
�
§ 01 Copyright Ownership and Transfer
§ 201 · Ownership of copyright1 (a) Initial Ownership.—Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work. (b) Works Made for Hire.—In the case of a work made for hire, the em-ployer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. (c) Contributions to Collective Works.—Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular col-lective work, any revision of that collective work, and any later collective work in the same series. (d) Transfer of Ownership.— (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title. (e) Involuntary Transfer.—When an individual author’s ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any govern-mental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.2 § 202 · Ownership of copyright as distinct from ownership of material object Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord 11 Copyright Law of the United States
Copyright Ownership and Transfer § 0
in which the work is first fixed, does not of itself convey any rights in the copy-righted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object. § 203 · Termination of transfers and licenses granted by the author3 (a) Conditions for Termination.—In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the fol-lowing conditions: (1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or per-sons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s interest. (2) Where an author is dead, his or her termination interest is owned, and may be exercised, as follows: (A) The widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest. (B) The author’s surviving children, and the surviving children of any dead child of the author, own the author’s entire termination interest unless there is a widow or widower, in which case the ownership of one-half of the author’s interest is divided among them. (C) The rights of the author’s children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author’s children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them. (D) In the event that the author’s widow or widower, children, and grand-children are not living, the author’s executor, administrator, personal repre-sentative, or trustee shall own the author’s entire termination interest. (3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution
Copyright Law of the United States 11
§ 0 Copyright Ownership and Transfer
of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier. (4) The termination shall be effected by serving an advance notice in writ-ing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly autho-rized agents, upon the grantee or the grantee’s successor in title. (A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years be-fore that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect. (B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation. (5) Termination of the grant may be effected notwithstanding any agree-ment to the contrary, including an agreement to make a will or to make any future grant. (b) Effect of Termination.—Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author, authors, and other persons owning termination interests under clauses (1) and (2) of subsection (a), including those owners who did not join in signing the notice of termination under clause (4) of subsection (a), but with the follow-ing limitations: (1) A derivative work prepared under authority of the grant before its ter-mination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work cov-ered by the terminated grant. (2) The future rights that will revert upon termination of the grant become vested on the date the notice of termination has been served as provided by clause (4) of subsection (a). The rights vest in the author, authors, and other persons named in, and in the proportionate shares provided by, clauses (1) and (2) of subsection (a). (3) Subject to the provisions of clause (4) of this subsection, a further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is signed by the same number and proportion of the owners, in whom the right has vested under clause (2) of this subsection, as are required to terminate the grant under clauses (1) and (2) of subsection (a). Such further grant or agreement is effective with respect to all of the persons in whom the right it covers has vested under clause (2) of this subsection, includ-ing those who did not join in signing it. If any person dies after rights under a
11 Copyright Law of the United States
Copyright Ownership and Transfer § 0
terminated grant have vested in him or her, that person’s legal representatives, legatees, or heirs at law represent him or her for purposes of this clause. (4) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the persons provided by clause (3) of this subsec-tion and the original grantee or such grantee’s successor in title, after the notice of termination has been served as provided by clause (4) of subsection (a). (5) Termination of a grant under this section affects only those rights cov-ered by the grants that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws. (6) Unless and until termination is effected under this section, the grant, if it does not provide otherwise, continues in effect for the term of copyright provided by this title. § 204 · Execution of transfers of copyright ownership (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the trans-fer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. (b) A certificate of acknowledgment is not required for the validity of a transfer, but is prima facie evidence of the execution of the transfer if— (1) in the case of a transfer executed in the United States, the certificate is is-sued by a person authorized to administer oaths within the United States; or (2) in the case of a transfer executed in a foreign country, the certificate is issued by a diplomatic or consular officer of the United States, or by a person authorized to administer oaths whose authority is proved by a certificate of such an officer. § 205 · Recordation of transfers and other documents4 (a) Conditions for Recordation.—Any transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. (b) Certificate of Recordation.—The Register of Copyrights shall, upon receipt of a document as provided by subsection (a) and of the fee provided by section 708, record the document and return it with a certificate of recordation.
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§ 0 Copyright Ownership and Transfer
(c) Recordation as Constructive Notice.—Recordation of a document in the Copyright Office gives all persons constructive notice of the facts stated in the recorded document, but only if— (1) the document, or material attached to it, specifically identifies the work to which it pertains so that, after the document is indexed by the Register of Copyrights, it would be revealed by a reasonable search under the title or reg-istration number of the work; and (2) registration has been made for the work. (d) Priority between Conflicting Transfers.—As between two con-flicting transfers, the one executed first prevails if it is recorded, in the manner required to give constructive notice under subsection (c), within one month after its execution in the United States or within two months after its execution outside the United States, or at any time before recordation in such manner of the later transfer. Otherwise the later transfer prevails if recorded first in such manner, and if taken in good faith, for valuable consideration or on the basis of a binding promise to pay royalties, and without notice of the earlier transfer. (e) Priority between Conflicting Transfer of Ownership and Nonexclusive License.—A nonexclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evi-denced by a written instrument signed by the owner of the rights licensed or such owner’s duly authorized agent, and if (1) the license was taken before execution of the transfer; or (2) the license was taken in good faith before recordation of the transfer and without notice of it. Chapter 2 · Endnotes 1. In 1978, section 201(e) was amended by deleting the period at the end and adding “, except as provided under title 11.” 2. Title 11 of the United States Code is entitled “Bankruptcy.” 3. In 1998, the Sonny Bono Copyright Term Extension Act amended section 203 by delet-ing “by his widow or her widower and his or her grandchildren” from the first sentence in paragraph (2) of subsection (a) and by adding subparagraph (D) to paragraph (2). Pub. L. No. 105-298, 112 Stat. 2827, 2829. 4. The Berne Convention Implementation Act of 1988 amended section 205 by deleting subsection (d) and redesignating subsections (e) and (f) as subsections (d) and (e), respec-tively. Pub. L. No. 100-568, 102 Stat. 2853, 2857.
11 Copyright Law of the United States
Chapter 3 1
Duration of Copyright section page 301 Preemption with respect to other laws ............................... 120
� 302 Duration of copyright: Works created on or after January 1, 1978 .............................................. 121
� 303 Duration of copyright: Works created but not published or copyrighted before January 1, 1978 ................................ 122
� 304 Duration of copyright: Subsisting copyrights ......................... 122
� 305 Duration of copyright: Terminal date ................................ 127
�
§ 01 Duration of Copyright
§ 301 · Preemption with respect to other laws2 (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expres-sion and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or un-published, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. (b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to— (1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression; or (2) any cause of action arising from undertakings commenced before Janu-ary 1, 1978; (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106; or (4) State and local landmarks, historic preservation, zoning, or building codes, relating to architectural works protected under section 102(a)(8). (c) With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on and after February 15, 2067. Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067. (d) Nothing in this title annuls or limits any rights or remedies under any other Federal statute. (e) The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of obligations of the United States thereunder. (f)(1) On or after the effective date set forth in section 610(a) of the Visual Art-ists Rights Act of 1990, all legal or equitable rights that are equivalent to any of the rights conferred by section 106A with respect to works of visual art to which the rights conferred by section 106A apply are governed exclusively by section 106A and section 113(d) and the provisions of this title relating to such sections. Thereafter, no person is entitled to any such right or equivalent right in any work of visual art under the common law or statutes of any State.3
1 0 Copyright Law of the United States
Duration of Copyright § 0
(2) Nothing in paragraph (1) annuls or limits any rights or remedies under the common law or statutes of any State with respect to— (A) any cause of action from undertakings commenced before the effec-tive date set forth in section 610(a) of the Visual Artists Rights Act of 1990; (B) activities violating legal or equitable rights that are not equivalent to any of the rights conferred by section 106A with respect to works of visual art; or (C) activities violating legal or equitable rights which extend beyond the life of the author. § 302 · Duration of copyright: Works created on or after January 1, 19784 (a) In General.—Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death. (b) Joint Works.—In the case of a joint work prepared by two or more au-thors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death. (c) Anonymous Works, Pseudonymous Works, and Works Made for Hire.—In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. If, before the end of such term, the identity of one or more of the authors of an anonymous or pseudonymous work is revealed in the records of a registration made for that work under subsections (a) or (d) of section 408, or in the records provided by this subsection, the copyright in the work endures for the term specified by subsection (a) or (b), based on the life of the author or authors whose identity has been revealed. Any person having an interest in the copyright in an anonymous or pseudonymous work may at any time record, in records to be maintained by the Copyright Office for that purpose, a statement identifying one or more authors of the work; the statement shall also identify the person filing it, the nature of that person’s interest, the source of the information recorded, and the particular work affected, and shall comply in form and content with require-ments that the Register of Copyrights shall prescribe by regulation. (d) Records Relating to Death of Authors.—Any person having an interest in a copyright may at any time record in the Copyright Office a state-ment of the date of death of the author of the copyrighted work, or a statement that the author is still living on a particular date. The statement shall identify
Copyright Law of the United States 1 1
§ 0 Duration of Copyright
the person filing it, the nature of that person’s interest, and the source of the information recorded, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation. The Register shall maintain current records of i nformation relating to the death of a uthors of c opy-righted works, based on such recorded statements and, to the extent the Register considers practicable, on data contained in any of the records of the Copyright Office or in other reference sources. (e) Presumption as to Author’s Death.—After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Of-fice a certified report that the records provided by subsection (d) disclose nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefit of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title. § 303 · Duration of copyright: Works created but not published or copyrighted before January 1, 19785 (a) Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047. (b) The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein. § 304 · Duration of copyright: Subsisting copyrights6 (a) Copyrights in Their First Term on January 1, 1 978.— (1)(A) Any copyright, in the first term of which is subsisting on January 1, 1978, shall endure for 28 years from the date it was originally secured. (B) In the case of— (i) any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or (ii) any work copyrighted by a corporate body (otherwise than as as-signee or licensee of the individual author) or by an employer for whom such work is made for hire,
1 Copyright Law of the United States
Duration of Copyright § 0
the proprietor of such copyright shall be entitled to a renewal and exten-sion of the copyright in such work for the further term of 67 years. (C) In the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work— (i) the author of such work, if the author is still living, (ii) the widow, widower, or children of the author, if the author is not living, (iii) the author’s executors, if such author, widow, widower, or chil-dren are not living, or (iv) the author’s next of kin, in the absence of a will of the author, shall be entitled to a renewal and extension of the copyright in such work for a further term of 67 years. (2)(A) At the expiration of the original term of copyright in a work specified in paragraph (1)(B) of this subsection, the copyright shall endure for a renewed and extended further term of 67 years, which— (i) if an application to register a claim to such further term has been made to the Copyright Office within 1 year before the expiration of the original term of copyright, and the claim is registered, shall vest, upon the beginning of such further term, in the proprietor of the copyright who is entitled to claim the renewal of copyright at the time the applica-tion is made; or (ii) if no such application is made or the claim pursuant to such ap-plication is not registered, shall vest, upon the beginning of such further term, in the person or entity that was the proprietor of the copyright as of the last day of the original term of copyright. (B) At the expiration of the original term of copyright in a work speci-fied in paragraph (1)(C) of this subsection, the copyright shall endure for a renewed and extended further term of 67 years, which— (i) if an application to register a claim to such further term has been made to the Copyright Office within 1 year before the expiration of the original term of copyright, and the claim is registered, shall vest, upon the beginning of such further term, in any person who is entitled under paragraph (1)(C) to the renewal and extension of the copyright at the time the application is made; or (ii) if no such application is made or the claim pursuant to such ap-plication is not registered, shall vest, upon the beginning of such further term, in any person entitled under paragraph (1)(C), as of the last day of the original term of copyright, to the renewal and extension of the copyright. (3)(A) An application to register a claim to the renewed and extended term of copyright in a work may be made to the Copyright Office—
Copyright Law of the United States 1
§ 0 Duration of Copyright
(i) within 1 year before the expiration of the original term of copy-right by any person entitled under paragraph (1)(B) or (C) to such fur-ther term of 67 years; and (ii) at any time during the renewed and extended term by any person in whom such further term vested, under paragraph (2)(A) or (B), or by any successor or assign of such person, if the application is made in the name of such person. (B) Such an application is not a condition of the renewal and extension of the copyright in a work for a further term of 67 years. (4)(A) If an application to register a claim to the renewed and extended term of copyright in a work is not made within 1 year before the expiration of the original term of copyright in a work, or if the claim pursuant to such application is not registered, then a derivative work prepared under author-ity of a grant of a transfer or license of the copyright that is made before the expiration of the original term of copyright may continue to be used under the terms of the grant during the renewed and extended term of copyright without infringing the copyright, except that such use does not extend to the preparation during such renewed and extended term of other derivative works based upon the copyrighted work covered by such grant. (B) If an application to register a claim to the renewed and extended term of copyright in a work is made within 1 year before its expiration, and the claim is registered, the certificate of such registration shall constitute prima facie evidence as to the validity of the copyright during its renewed and extended term and of the facts stated in the certificate. The evidentiary weight to be accorded the certificates of a registration of a renewed and extended term of copyright made after the end of that 1-year period shall be within the discretion of the court. (b) Copyrights in Their Renewal Term at the Time of the Effective
Date of the Sonny Bono Copyright Term Extension Act7—Any copyright still in its renewal term at the time that the Sonny Bono Copyright Term Extension Act becomes effective shall have a copyright term of 95 years from the date copyright was originally secured.⁸ (c) Termination of Transfers and Licenses Covering Extended Renewal Term.—In the case of any copyright subsisting in either its first or renewal term on January 1, 1978, other than a copyright in a work made for hire, the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it, executed before January 1, 1978, by any of the persons designated by subsection (a)(1)(C) of this section, otherwise than by will, is subject to termination under the following conditions: (1) In the case of a grant executed by a person or persons other than the author, termination of the grant may be effected by the surviving person or persons who executed it. In the case of a grant executed by one or more of the
1 Copyright Law of the United States
Duration of Copyright § 0
authors of the work, termination of the grant may be effected, to the extent of a particular author’s share in the ownership of the renewal copyright, by the author who executed it or, if such author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s termination interest. (2) Where an author is dead, his or her termination interest is owned, and may be exercised, as follows: (A) The widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest. (B) The author’s surviving children, and the surviving children of any dead child of the author, own the author’s entire termination interest unless there is a widow or widower, in which case the ownership of one-half of the author’s interest is divided among them. (C) The rights of the author’s children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author’s children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them. (D) In the event that the author’s widow or widower, children, and grand-children are not living, the author’s executor, administrator, personal repre-sentative, or trustee shall own the author’s entire termination interest. (3) Termination of the grant may be effected at any time during a period of five years beginning at the end of fifty-six years from the date copyright was originally secured, or beginning on January 1, 1978, whichever is later. (4) The termination shall be effected by serving an advance notice in writ-ing upon the grantee or the grantee’s successor in title. In the case of a grant executed by a person or persons other than the author, the notice shall be signed by all of those entitled to terminate the grant under clause (1) of this subsection, or by their duly authorized agents. In the case of a grant executed by one or more of the authors of the work, the notice as to any one author’s share shall be signed by that author or his or her duly authorized agent or, if that author is dead, by the number and proportion of the owners of his or her termination interest required under clauses (1) and (2) of this subsection, or by their duly authorized agents. (A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, or, in the case of a termination under subsection (d), within the five-year period specified by subsection (d)(2), and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect.
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§ 0 Duration of Copyright
(B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation. (5) Termination of the grant may be effected notwithstanding any agree-ment to the contrary, including an agreement to make a will or to make any future grant. (6) In the case of a grant executed by a person or persons other than the au-thor, all rights under this title that were covered by the terminated grant revert, upon the effective date of termination, to all of those entitled to terminate the grant under clause (1) of this subsection. In the case of a grant executed by one or more of the authors of the work, all of a particular author’s rights under this title that were covered by the terminated grant revert, upon the effective date of termination, to that author or, if that author is dead, to the persons owning his or her termination interest under clause (2) of this subsection, including those owners who did not join in signing the notice of termination under clause (4) of this subsection. In all cases the reversion of rights is subject to the following limitations: (A) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. (B) The future rights that will revert upon termination of the grant be-come vested on the date the notice of termination has been served as pro-vided by clause (4) of this subsection. (C) Where the author’s rights revert to two or more persons under clause (2) of this subsection, they shall vest in those persons in the proportionate shares provided by that clause. In such a case, and subject to the provisions of subclause (D) of this clause, a further grant, or agreement to make a fur-ther grant, of a particular author’s share with respect to any right covered by a terminated grant is valid only if it is signed by the same number and proportion of the owners, in whom the right has vested under this clause, as are required to terminate the grant under clause (2) of this subsection. Such further grant or agreement is effective with respect to all of the per-sons in whom the right it covers has vested under this subclause, including those who did not join in signing it. If any person dies after rights under a terminated grant have vested in him or her, that person’s legal represen-tatives, legatees, or heirs at law represent him or her for purposes of this subclause. (D) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the author or any of the persons
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Duration of Copyright Endnotes
provided by the first sentence of clause (6) of this subsection, or between the persons provided by subclause (C) of this clause, and the original grantee or such grantee’s successor in title, after the notice of termination has been served as provided by clause (4) of this subsection. (E) Termination of a grant under this subsection affects only those rights covered by the grant that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws. (F) Unless and until termination is effected under this subsection, the grant, if it does not provide otherwise, continues in effect for the remainder of the extended renewal term. (d) Termination Rights Provided in Subsection (c) Which Have Expired on or before the Effective Date of the Sonny Bono Copyright
Term Extension Act.—In the case of any copyright other than a work made for hire, subsisting in its renewal term on the effective date of the Sonny Bono Copyright Term Extension Act9 for which the termination right provided in subsection (c) has expired by such date, where the author or owner of the ter-mination right has not previously exercised such termination right, the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it, executed before January 1, 1978, by any of the persons designated in subsection (a)(1)(C) of this section, other than by will, is subject to termination under the following conditions: (1) The conditions specified in subsections (c) (1), (2), (4), (5), and (6) of this section apply to terminations of the last 20 years of copyright term as provided by the amendments made by the Sonny Bono Copyright Term Extension Act. (2) Termination of the grant may be effected at any time during a period of 5 years beginning at the end of 75 years from the date copyright was originally secured. § 305 · Duration of copyright: Terminal date All terms of copyright provided by sections 302 through 304 run to the end of the calendar year in which they would otherwise expire. Chapter 3 · Endnotes 1. Private Law 92-60, 85 Stat. 857, effective December 15, 1971, states that: [A]ny provision of law to the contrary notwithstanding, copyright is hereby granted to the trustees under the will of Mary Baker Eddy, their successors, and assigns, in the work “Science and Health with Key to the Scriptures” (entitled also in some editions “Science and Health” or “Science and Health; with a Key to the Scriptures”), by Mary Baker Eddy, including
Copyright Law of the United States 1
Endnotes Duration of Copyright
all editions thereof in English and translation heretofore published, or hereafter published by or on behalf of said trustees, their successors or assigns, for a term of seventy-five years from the effective date of this Act or from the date of first publication, whichever is later. But cf. U nited Christian Scientists v. Christian Science Board of Directors, F irst Church of Christ, Scientist, 829 F.2d 1152, 4 USPQ2d 1177 (D.C. Cir. 1987) (holding Priv. L. 92-60, 85 Stat. 857, to be unconstitutional because it violates the Establishment Clause). 2. The Berne Convention Implementation Act of 1988 amended section 301 by adding at the end thereof subsection (e). Pub. L. No. 100-568, 102 Stat. 2853, 2857. In 1990, the Architectural Works Copyright Protection Act amended section 301(b) by adding at the end thereof paragraph (4). Pub. L. No. 101-650, 104 Stat. 5133, 5134. The Visual Artists Rights Act of 1990 amended section 301 by adding at the end thereof subsection (f). Pub. L. No. 101-650, 104 Stat. 5089, 5131. In 1998, the Sonny Bono Copyright Term Extension Act amended section 301 by changing “February 15, 2047” to “February 15, 2067” each place it appeared in subsection (c). Pub. L. No. 105-298, 112 Stat. 2827. 3. The Visual Artists Rights Act of 1990, which added subsection (f), states, “Subject to subsection (b) and except as provided in subsection (c), this title and the amendments made by this title take effect 6 months after the date of the enactment of this Act,” that is, 6 months after December 1, 1990. Pub. L. No. 101-650, 104 Stat. 5089, 5132. See also endnote 39, chapter 1. 4. In 1998, the Sonny Bono Copyright Term Extension Act amended section 302 by substi-tuting “70” for “fifty,” “95” for “seventy-five,” and “120” for “one hundred” each place they ap-peared. Pub. L. No. 105-298, 112 Stat. 2827. This change was effective October 27, 1998. Id. 5. In 1997, section 303 was amended by adding subsection (b). Pub. L. No. 105-80, 111 Stat. 1529, 1534. In 1998, the Sonny Bono Copyright Term Extension Act amended section 303 by substituting “December 31, 2047” for “December 31, 2027.” Pub. L. No. 105-298, 112 Stat. 2827. 6. The Copyright Renewal Act of 1992 amended section 304 by substituting a new subsec-tion (a) and by making a conforming amendment in the matter preceding paragraph (1) of subsection (c). Pub. L. No. 102-307, 106 Stat. 264. The Act, as amended by the Sonny Bono Copyright Term Extension Act, states that the renewal and extension of a copyright for a further term of 67 years “shall have the same effect with respect to any grant, before the effec-tive date of the Sonny Bono Copyright Term Extension Act [October 27, 1998], of a transfer or license of the further term as did the renewal of a copyright before the effective date of the Sonny Bono Copyright Term Extension Act [October 27, 1998] under the law in effect at the time of such grant.” The Act also states that the 1992 amendments “shall apply only to those copyrights secured between January 1, 1964, and December 31, 1977. Copyrights secured before January 1, 1964, shall be governed by the provisions of section 304(a) of title 17, United States Code, as in effect on the day before … [enactment on June 26, 1992], except each reference to forty-seven years in such provisions shall be deemed to be 67 years.” Pub. L. No. 102-307, 106 Stat. 264, 266, as amended by the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827, 2828. In 1998, the Sonny Bono Copyright Term Extension Act amended section 304 by substi-tuting “67” for “47” wherever it appeared in subsection (a), by substituting a new subsection (b), and by adding subsection (d) at the end thereof. Pub. L. No. 105-298, 112 Stat. 2827. That
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Act also amended subsection 304(c) by deleting “by his widow or her widower and his or her children or grandchildren” from the first sentence of paragraph (2), by adding subparagraph (D) at the end of paragraph (2), and by inserting “or, in the case of a termination under sub-section (d), within the five-year period specified by subsection (d)(2),” into the first sentence of subparagraph (4)(A). Id.7. In 1998, the Sonny Bono Copyright Term Extension Act amendment to subsection 304(b) completely deleted the previous language that was originally part of the 1976 Copy-right Act. Pub. L. No. 105-298, 112 Stat. 2827. That earlier statutory language continues to be relevant for calculating the term of protection for copyrights commencing between September 19, 1906, and December 31, 1949. The 1976 Copyright Act extended the terms for those copyrights by 20 years, provided they were in their renewal term between December 31, 1976, and December 31, 1977. The deleted language states:The duration of any copyright, the renewal term of which is subsisting at any time be-tween December 31, 1976, and December 31, 1977, inclusive, or for which renewal registration is made between December 31, 1976, and December 31, 1977, inclusive, is extended to endure for a term of seventy-five years from the date copyright was originally secured.The effective date of this provision was October 19, 1976. That effective date provision is contained in Appendix A, herein, as section 102 of the Transitional and Supplementary Provisions of the Copyright Act of 1976. Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541, 2598.In addition, prior to the 1976 Copyright Act, Congress enacted a series of nine interim extensions for works whose copyright protection began between September 19, 1906, and December 31, 1918, if they were in their renewal terms. Without these interim extensions, copyrights commencing during that time period would have otherwise expired after 56 years, at the end of their renewal terms, between September 19, 1962, and December 31, 1976. The nine Acts authorizing the interim extensions are as follows, in chronological order:Pub. L. No. 87-668, 76 Stat. 555 (extending copyrights from September 19, 1962, to De-cember 31, 1965) Pub. L. No. 89-142, 79 Stat. 581 (extending copyrights to December 31, 1967)Pub. L. No. 90-141, 81 Stat. 464 (extending copyrights to December 31, 1968)Pub. L. No. 90-416, 82 Stat. 397 (extending copyrights to December 31, 1969)Pub. L. No. 91-147, 83 Stat. 360 (extending copyrights to December 31, 1970)Pub. L. No. 91-555, 84 Stat. 1441 (extending copyrights to December 31, 1971)Pub. L. No. 92-170, 85 Stat. 490 (extending copyrights to December 31, 1972)Pub. L. No. 92-566, 86 Stat. 1181 (extending copyrights to December 31, 1974)Pub. L. No. 93-573, 88 Stat. 1873 (extending copyrights to December 31, 1976)8. The effective date of the Sonny Bono Copyright Term Extension Act is October 27, 1998.9. See endnote 8, supra.
Duration of Copyright Endnotes
Duration of Copyright
1 0 Copyright Law of the United States
section page 401 Notice of copyright: Visually perceptible copies ...................... 132
� 402 Notice of copyright: Phonorecords of sound recordings ............... 132
� 403 Notice of copyright: Publications incorporating
United States Government works .................................... 133
� 404 Notice of copyright: Contributions to collective works ................ 133
� 405 Notice of copyright: Omission of notice on
certain copies and phonorecords ..................................... 134
� 406 Notice of copyright: Error in name or date on
certain copies and phonorecords ..................................... 135
� 407 Deposit of copies or phonorecords for Library of Congress ............ 135
� 408 Copyright registration in general .................................... 137
� 409 Application for copyright registration ................................ 140
� 410 Registration of claim and issuance of certificate ...................... 140
� 411 Registration and infringement actions ............................... 141
� 412 Registration as prerequisite to certain remedies for infringement .... 142
�Chapter 4
Copyright Notice, Deposit, and Registration
§ 01 Copyright Notice, Deposit, and Registration
§ 401 · Notice of copyright: Visually perceptible copies1 (a) General Provisions.—Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly dis-tributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. (b) Form of Notice.—If a notice appears on the copies, it shall consist of the following three elements: (1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”; and (2) the year of first publication of the work; in the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with ac-companying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and (3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designa-tion of the owner. (c) Position of Notice.—The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive. (d) Evidentiary Weight of Notice.—If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2). § 402 · Notice of copyright: Phonorecords of sound recordings2 (a) General Provisions.—Whenever a sound recording protected under this title is published in the United States or elsewhere by authority of the copy-right owner, a notice of copyright as provided by this section may be placed on publicly distributed phonorecords of the sound recording. (b) Form of Notice.—If a notice appears on the phonorecords, it shall con-sist of the following three elements: (1) the symbol π (the letter P in a circle); and
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Copyright Notice, Deposit, and Registration § 0
(2) the year of first publication of the sound recording; and (3) the name of the owner of copyright in the sound recording, or an abbre-viation by which the name can be recognized, or a generally known alternative designation of the owner; if the producer of the sound recording is named on the phonorecord labels or containers, and if no other name appears in conjunction with the notice, the producer’s name shall be considered a part of the notice. (c) Position of Notice.—The notice shall be placed on the surface of the phonorecord, or on the phonorecord label or container, in such manner and location as to give reasonable notice of the claim of copyright. (d) Evidentiary Weight of Notice.—If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2). § 403 · Notice of copyright: Publications incorporating United States Government works3 Sections 401(d) and 402(d) shall not apply to a work published in copies or phonorecords consisting predominantly of one or more works of the United States Government unless the notice of copyright appearing on the published copies or phonorecords to which a defendant in the copyright infringement suit had access includes a statement identifying, either affirmatively or negatively, those portions of the copies or phonorecords embodying any work or works protected under this title. § 404 · Notice of copyright: Contributions to collective works4 (a) A separate contribution to a collective work may bear its own notice of copyright, as provided by sections 401 through 403. However, a single notice ap-plicable to the collective work as a whole is sufficient to invoke the provisions of section 401(d) or 402(d), as applicable with respect to the separate contributions it contains (not including advertisements inserted on behalf of persons other than the owner of copyright in the collective work), regardless of the ownership of copyright in the contributions and whether or not they have been previously published. (b) With respect to copies and phonorecords publicly distributed by author-ity of the copyright owner before the effective date of the Berne Convention Copyright Law of the United States 1
§ 0 Copyright Notice, Deposit, and Registration
Implementation Act of 1988, where the person named in a single notice appli-cable to a collective work as a whole is not the owner of copyright in a separate contribution that does not bear its own notice, the case is governed by the provi-sions of section 406(a). § 405 · Notice of copyright: Omission of notice on certain copies and phonorecords5 (a) Effect of Omission on Copyright.—With respect to copies and pho-norecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, the omis-sion of the copyright notice described in sections 401 through 403 from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if— (1) the notice has been omitted from no more than a relatively small num-ber of copies or phonorecords distributed to the public; or (2) registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered; or (3) the notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner’s authorization of the public distribution of copies or phonorecords, they bear the prescribed notice. (b) Effect of Omission on Innocent Infringers.—Any person who innocently infringes a copyright, in reliance upon an authorized copy or phono-record from which the copyright notice has been omitted and which was publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, incurs no liability for actual or statutory damages under section 504 for any infringing acts committed before receiving actual notice that registration for the work has been made under section 408, if such person proves that he or she was misled by the omission of notice. In a suit for infringement in such a case the court may allow or disallow recovery of any of the infringer’s profits attributable to the infringement, and may enjoin the continuation of the infringing undertaking or may require, as a condition for permitting the continuation of the infringing undertaking, that the infringer pay the copyright owner a reasonable license fee in an amount and on terms fixed by the court. (c) Removal of Notice.—Protection under this title is not affected by the removal, destruction, or obliteration of the notice, without the authorization of the copyright owner, from any publicly distributed copies or phonorecords.
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Copyright Notice, Deposit, and Registration § 0
§ 406 · N otice o f c opyright: E rror i n n ame o r d ate on certain copies and phonorecords6 (a) Error in Name.—With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, where the person named in the copyright notice on copies or phonorecords publicly distributed by authority of the copyright owner is not the owner of copyright, the validity and owner-ship of the copyright are not affected. In such a case, however, any person who innocently begins an undertaking that infringes the copyright has a complete defense to any action for such infringement if such person proves that he or she was misled by the notice and began the undertaking in good faith under a purported transfer or license from the person named therein, unless before the undertaking was begun— (1) registration for the work had been made in the name of the owner of copyright; or (2) a document executed by the person named in the notice and showing the ownership of the copyright had been recorded. The person named in the notice is liable to account to the copyright owner for all receipts from transfers or licenses purportedly made under the copyright by the person named in the notice. (b) Error in Date.—When the year date in the notice on copies or pho-norecords distributed before the effective date of the Berne Convention Imple-mentation Act of 1988 by authority of the copyright owner is earlier than the year in which publication first occurred, any period computed from the year of first publication under section 302 is to be computed from the year in the notice. Where the year date is more than one year later than the year in which publication first occurred, the work is considered to have been published without any notice and is governed by the provisions of section 405. (c) Omission of Name or Date.—Where copies or phonorecords publicly distributed before the effective date of the Berne Convention Implementation Act of 1988 by authority of the copyright owner contain no name or no date that could reasonably be considered a part of the notice, the work is considered to have been published without any notice and is governed by the provisions of section 405 as in effect on the day before the effective date of the Berne Conven-tion Implementation Act of 1988. § 407 · D eposit o f c opies o r p honorecords f or L ibrary o f C ongress7 (a) Except as provided by subsection (c), and subject to the provisions of sub-section (e), the owner of copyright or of the exclusive right of publication in a
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§ 0 Copyright Notice, Deposit, and Registration
work published in the United States shall deposit, within three months after the date of such publication— (1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with any printed or other visually perceptible material published with such phonorecords. Neither the deposit requirements of this subsection nor the acquisition provi-sions of subsection (e) are conditions of copyright protection. (b) The required copies or phonorecords shall be deposited in the Copyright Office for the use or disposition of the Library of Congress. The Register of Copy-rights shall, when requested by the depositor and upon payment of the fee pre-scribed by section 708, issue a receipt for the deposit. (c) The Register of Copyrights may by regulation exempt any categories of material from the deposit requirements of this section, or require deposit of o nly one copy or phonorecord with respect to any categories. Such regulations shall provide either for complete exemption from the deposit requirements of this sec-tion, or for alternative forms of deposit aimed at providing a satisfactory archival record of a work without imposing practical or financial hardships on the deposi-tor, where the individual author is the owner of copyright in a pictorial, graphic, or sculptural work and (i) less than five copies of the work have been published, or (ii) the work has been published in a limited edition consisting of numbered copies, the monetary value of which would make the mandatory deposit of two copies of the best edition of the work burdensome, unfair, or unreasonable. (d) At any time after publication of a work as provided by subsection (a), the Register of Copyrights may make written demand for the required deposit on any of the persons obligated to make the deposit under subsection (a). Unless deposit is made within three months after the demand is received, the person or persons on whom the demand was made are liable— (1) to a fine of not more than $250 for each work; and (2) to pay into a specially designated fund in the Library of Congress the total retail price of the copies or phonorecords demanded, or, if no retail price has been fixed, the reasonable cost to the Library of Congress of acquiring them; and (3) to pay a fine of $2,500, in addition to any fine or liability imposed un-der clauses (1) and (2), if such person willfully or repeatedly fails or refuses to comply with such a demand. (e) With respect to transmission programs that have been fixed and transmit-ted to the public in the United States but have not been published, the Register of Copyrights shall, after consulting with the Librarian of Congress and other interested organizations and officials, establish regulations governing the acquisi-tion, through deposit or otherwise, of copies or phonorecords of such programs for the collections of the Library of Congress.
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Copyright Notice, Deposit, and Registration § 0
(1) The Librarian of Congress shall be permitted, under the standards and conditions set forth in such regulations, to make a fixation of a transmission program directly from a transmission to the public, and to reproduce one copy or phonorecord from such fixation for archival purposes. (2) Such regulations shall also provide standards and procedures by which the Register of Copyrights may make written demand, upon the owner of the right of transmission in the United States, for the deposit of a copy or phono-record of a specific transmission program. Such deposit may, at the option of the owner of the right of transmission in the United States, be accomplished by gift, by loan for purposes of reproduction, or by sale at a price not to ex-ceed the cost of reproducing and supplying the copy or phonorecord. The regulations established under this clause shall provide reasonable periods of not less than three months for compliance with a demand, and shall allow for extensions of such periods and adjustments in the scope of the demand or the methods for fulfilling it, as reasonably warranted by the circumstances. Willful failure or refusal to comply with the conditions prescribed by such regulations shall subject the owner of the right of transmission in the United States to li-ability for an amount, not to exceed the cost of reproducing and supplying the copy or phonorecord in question, to be paid into a specially designated fund in the Library of Congress. (3) Nothing in this subsection shall be construed to require the making or retention, for purposes of deposit, of any copy or phonorecord of an un-published transmission program, the transmission of which occurs before the receipt of a specific written demand as provided by clause (2). (4) No activity undertaken in compliance with regulations prescribed under clauses (1) and (2) of this subsection shall result in liability if intended solely to assist in the acquisition of copies or phonorecords under this subsection. § 408 · Copyright registration in general8 (a) Registration Permissive.—At any time during the subsistence of the first term of copyright in any published or unpublished work in which the copy-right was secured before January 1, 1978, and during the subsistence of any copy-right secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by sections 409 and 708. Such registration is not a condition of copyright protection. (b) Deposit for Copyright Registration.—Except as provided by sub-section (c), the material deposited for registration shall include— (1) in the case of an unpublished work, one complete copy or phonorecord;
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§ 0 Copyright Notice, Deposit, and Registration
(2) in the case of a published work, two complete copies or phonorecords of the best edition; (3) in the case of a work first published outside the United States, one com-plete copy or phonorecord as so published; (4) in the case of a contribution to a collective work, one complete copy or phonorecord of the best edition of the collective work. Copies or phonorecords deposited for the Library of Congress under sec-tion 407 may be used to satisfy the deposit provisions of this section, if they are accompanied by the prescribed application and fee, and by any additional identifying material that the Register may, by regulation, require. The Register shall also prescribe regulations establishing requirements under which copies or phonorecords acquired for the Library of Congress under subsection (e) of sec-tion 407, otherwise than by deposit, may be used to satisfy the deposit provisions of this section. (c) Administrative Classification and Optional Deposit— (1) The Register of Copyrights is authorized to specify by regulation the ad-ministrative classes into which works are to be placed for purposes of deposit and registration, and the nature of the copies or phonorecords to be depos-ited in the various classes specified. The regulations may require or permit, for particular classes, the deposit of identifying material instead of copies or phonorecords, the deposit of only one copy or phonorecord where two would normally be required, or a single registration for a group of related works. This administrative classification of works has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title. (2) Without prejudice to the general authority provided under clause (1), the Register of Copyrights shall establish regulations specifically permitting a single registration for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, within a twelve-month period, on the basis of a single deposit, application, and regis-tration fee, under the following conditions— (A) if the deposit consists of one copy of the entire issue of the periodical, or of the entire section in the case of a newspaper, in which each contribu-tion was first published; and (B) if the application identifies each work separately, including the peri-odical containing it and its date of first publication. (3) As an alternative to separate renewal registrations under subsection (a) of section 304, a single renewal registration may be made for a group of works by the same individual author, all first published as contributions to peri-odicals, including newspapers, upon the filing of a single application and fee, under all of the following conditions: (A) the renewal claimant or claimants, and the basis of claim or claims under section 304(a), is the same for each of the works; and
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Copyright Notice, Deposit, and Registration § 0
(B) the works were all copyrighted upon their first publication, either through separate copyright notice and registration or by virtue of a general copyright notice in the periodical issue as a whole; and (C) the renewal application and fee are received not more than twenty-eight or less than twenty-seven years after the thirty-first day of December of the calendar year in which all of the works were first published; and (D) the renewal application identifies each work separately, including the periodical containing it and its date of first publication. (d) Corrections and Amplifications.—The Register may also establish, by regulation, formal procedures for the filing of an application for supplemen-tary registration, to correct an error in a copyright registration or to amplify the information given in a registration. Such application shall be accompanied by the fee provided by section 708, and shall clearly identify the registration to be cor-rected or amplified. The information contained in a supplementary registration augments but does not supersede that contained in the earlier registration. (e) Published Edition of Previously Registered Work.—Registration for the first published edition of a work previously registered in unpublished form may be made even though the work as published is substantially the same as the unpublished version. (f) Preregistration of Works Being Prepared for Commercial Distribution.— (1) Rulemaking.—Not later than 180 days after the date of enactment of this subsection, the Register of Copyrights shall issue regulations to establish procedures for preregistration of a work that is being prepared for commercial distribution and has not been published. (2) Class of works.—The regulations established under paragraph (1) shall permit preregistration for any work that is in a class of works that the Register determines has had a history of infringement prior to authorized commercial distribution. (3) Application for registration.—Not later than 3 months after the first publication of a work preregistered under this subsection, the applicant shall submit to the Copyright Office– (A) an application for registration of the work; (B) a deposit; and (C) the applicable fee. (4) Effect of untimely application.—An action under this chapter for infringement of a work preregistered under this subsection, in a case in which the infringement commenced no later than 2 months after the first publication of the work, shall be dismissed if the items described in paragraph (3) are not submitted to the Copyright Office in proper form within the earlier of— (A) 3 months after the first publication of the work; or (B) 1 month after the copyright owner has learned of the infringement.
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§ 0 Copyright Notice, Deposit, and Registration
§ 409 · Application for copyright registration9 The application for copyright registration shall be made on a form prescribed by the Register of Copyrights and shall include— (1) the name and address of the copyright claimant; (2) in the case of a work other than an anonymous or pseudonymous work, the name and nationality or domicile of the author or authors, and, if one or more of the authors is dead, the dates of their deaths; (3) if the work is anonymous or pseudonymous, the nationality or domicile of the author or authors; (4) in the case of a work made for hire, a statement to this effect; (5) if the copyright claimant is not the author, a brief statement of how the claimant obtained ownership of the copyright; (6) the title of the work, together with any previous or alternative titles under which the work can be identified; (7) the year in which creation of the work was completed; (8) if the work has been published, the date and nation of its first publication; (9) in the case of a compilation or derivative work, an identification of any preexisting work or works that it is based on or incorporates, and a brief, general statement of the additional material covered by the copyright claim being registered; (10) in the case of a published work containing material of which copies are required by section 601 to be manufactured in the United States, the names of the persons or organizations who performed the processes specified by subsec-tion (c) of section 601 with respect to that material, and the places where those processes were performed; and (11) any other information regarded by the Register of Copyrights as bear-ing upon the preparation or identification of the work or the existence, owner-ship, or duration of the copyright. If an application is submitted for the renewed and extended term provided for in section 304(a)(3)(A) and an original term registration has not been made, the Register may request information with respect to the existence, ownership, or duration of the copyright for the original term. § 410 · Registration of claim and issuance of certificate (a) When, after examination, the Register of Copyrights determines that, in accordance with the provisions of this title, the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements of this title have been met, the Register shall register the claim and issue to the applicant a certificate of registration under the seal of the Copyright Office. The
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certificate shall contain the information given in the application, together with the number and effective date of the registration. (b) In any case in which the Register of Copyrights determines that, in accor-dance with the provisions of this title, the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason, the Register shall refuse registration and shall notify the applicant in writing of the reasons for such refusal. (c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made there-after shall be within the discretion of the court. (d) The effective date of a copyright registration is the day on which an appli-cation, deposit, and fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all been received in the Copyright Office. § 411 · Registration and infringement actions10 (a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in ac-cordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue. (b) In the case of a work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission, the copyright owner may, either before or after such fixation takes place, institute an action for infringe-ment under section 501, fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if, in accordance with requirements that the Register of Copyrights shall prescribe by regulation, the copyright owner— (1) serves notice upon the infringer, not less than 48 hours before such fixa-tion, identifying the work and the specific time and source of its first transmis-sion, and declaring an intention to secure copyright in the work; and
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§ 11 Copyright Notice, Deposit, and Registration
(2) makes registration for the work, if required by subsection (a), within three months after its first transmission. § 412 · Registration a s p rerequisite t o c ertain r emedies for infringement11 In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(b), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for— (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work. Chapter 4 · Endnotes 1. The Berne Convention Implementation Act of 1988 amended section 401 as follows: 1) in subsection (a), by changing the heading to “General Provisions” and by inserting “may be placed on” in lieu of “shall be placed on all”; 2) in subsection (b), by inserting “If a notice appears on the copies, it” in lieu of “The notice appearing on the copies”; and 3) by adding subsection (d). Pub. L. No. 100-568, 102 Stat. 2853, 2857. 2. The Berne Convention Implementation Act of 1988 amended section 402 as follows: 1) in subsection (a), by changing the heading to “General Provisions” and by inserting “may be placed on” in lieu of “shall be placed on all”; 2) in subsection (b), by inserting “If a notice appears on the phonorecords, it” in lieu of “The notice appearing on the phonorecords”; and 3) by adding subsection (d). Pub. L. No. 100-568, 102 Stat. 2853, 2857. 3. The Berne Convention Implementation Act of 1988 amended section 403 in its entirety. Pub. L. No. 100-568, 102 Stat. 2853, 2858. 4. The Berne Convention Implementation Act of 1988 amended section 404 as follows: 1) in the second sentence of subsection (a), by inserting “to invoke the provisions of section 401(d) or 402(d), as applicable” in lieu of “to satisfy the requirements of sections 401 through 403” and 2) in subsection (b), by inserting “With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Con-vention Implementation Act of 1988,” at the beginning of the sentence. Pub. L. No. 100-568, 102 Stat. 2853, 2858.
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Copyright Notice, Deposit, and Registration Endnotes
5. The Berne Convention Implementation Act of 1988 amended section 405 as follows: 1) in subsection (a), by inserting “With respect to copies and phonorecords publicly distrib-uted by authority of the copyright owner before the effective date of the Berne Conven-tion Implementation Act of 1988, the omission of the copyright notice described in” at the beginning of the first sentence, in lieu of “The omission of the copyright notice prescribed by”; 2) in subsection (b), by inserting after “omitted,” in the first sentence, “and which was publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988”; and 3) by amending the section heading to add “on certain copies and phonorecords” at the end thereof. Pub. L. No. 100-568, 102 Stat. 2853, 2858. 6. The Berne Convention Implementation Act of 1988 amended section 406 as follows: 1) in subsection (a), by inserting “With respect to copies and phonorecords publicly distrib-uted by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988,” at the beginning of the first sentence; 2) in subsection (b), by inserting “before the effective date of the Berne Convention Implementation Act of 1988” after “distributed”; 3) in subsection (c), by inserting “before the effective date of the Berne Convention Implementation Act of 1988” after “publicly distributed” and by inserting “as in effect on the day before the effective date of the Berne Convention Implementation Act of 1988” after “405”; and 4) by amending the section heading to add “on certain copies and phonorecords” at the end thereof. Pub. L. No. 100-568, 102 Stat. 2853, 2858. 7. The Berne Convention Implementation Act of 1988 amended section 407 by striking out the words “with notice of copyright” in subsection (a). Pub. L. No. 100-568, 102 Stat. 2853, 2859. 8. The Berne Convention Implementation Act of 1988 amended section 408 by deleting “Subject to the provisions of section 405(a),” at the beginning of the second sentence of sub-section (a). Pub. L. No. 100-568, 102 Stat. 2853, 2859. That Act also amended section 408(c)(2) by inserting “the following conditions:” in lieu of “all of the following conditions” and by striking subparagraph (A) and by redesignating subparagraphs (B) and (C) as subparagraphs (A) and (B), respectively. Id. The Copyright Renewal Act of 1992 amended section 408 by revising the first sentence of subsection (a), preceding the words “the owner of copyright or of any exclusive right.” Pub. L. No. 102-307, 106 Stat. 264, 266. The Artists’ Rights and Theft Prevention Act of 2005 amended section 408 by adding a new subsection (f). Pub. L. No. 109-9, 119 Stat. 218, 221. 9. The Copyright Renewal Act of 1992 amended section 409 by adding the last sentence. Pub. L. No. 102-307, 106 Stat. 264, 266. 10. The Berne Convention Implementation Act of 1988 amended section 411 as follows: 1) in subsection (a), by inserting “Except for actions for infringement of copyright in Berne Convention works whose country of origin is not the United States, and” before “subject”; 2) in paragraph (b)(2), b y inserting “, if required by subsection (a),” after “work”; and 3) by inserting “and infringement actions” in the heading, in lieu of “as prerequisite to infringe-ment suit.” Pub. L. No. 100-568, 102 Stat. 2853, 2859. The Visual Artists Rights Act of 1990 amended section 411(a) by inserting “and an action brought for a violation of the rights of the author under section 106A(a)” after “United States.” Pub. L. No. 101-650, 104 Stat. 5089, 5131. In 1997, section 411(b)(1) was amended in its entirety. Pub. L. No. 105-80, 111 Stat. 1529, 1532.
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Endnotes Copyright Notice, Deposit, and Registration
The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended the first sentence in section 411(a) by deleting “actions for infringement of copyright in Berne Convention works whose country of origin is not the United and” and by inserting “United States” after “no action for infringement of the copyright in any.” Pub. L. No. 105-304, 112 Stat. 2860, 2863.
�The Artists’ Rights and Theft Prevention Act of 2005 amended subsection 411(a) by in-serting “preregistration” in the first sentence, after “shall be instituted until” in the first sen-tence. Pub. L. No. 109-9, 119 Stat. 218, 222.
�11. The Visual Artists Rights Act of 1990 amended section 412 by inserting “an action
brought for a violation of the rights of the author under section 106A(a) or” after “other
than.” Pub. L. No. 101-650, 104 Stat. 5089, 5131.
�The Artists’ Rights and Theft Prevention Act of 2005 amended subsection 412 by insert-ing the clause that follows “section 106A(a),” in the text preceding subparagraph (1). Pub. L.
�No. 109-9, 119 Stat. 218, 222.
�
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Chapter 5
Copyright Infringement and Remedies
section page 501 Infringement of copyright ............................................ 146
� 502 Remedies for infringement: Injunctions .............................. 147
� 503 Remedies for infringement: Impounding and
disposition of infringing articles ..................................... 147
� 504 Remedies for infringement: Damages and profits .................... 148
� 505 Remedies for infringement: Costs and attorney’s fees ................ 149
� 506 Criminal offenses .................................................... 149
� 507 Limitations on actions ............................................... 151
� 508 Notification of filing and determination of actions ................... 151
� 509 Seizure and forfeiture ................................................ 151
� 510 Remedies for alteration of programming by cable systems ............ 152
� 511 Liability of States, instrumentalities of States, and
State officials for infringement of copyright .......................... 152
� 512 Limitations on liability relating to material online .................. 153
� 513 Determination of reasonable license fees
for individual proprietors1 ........................................... 163
�
§ 01 Copyright Infringement and Remedies
§ 501 · Infringement of copyright2 (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in viola-tion of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term “anyone” includes any State, any instrumen-tality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumental-ity, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity. (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright. (c) For any secondary transmission by a cable system that embodies a perfor-mance or a display of a work which is actionable as an act of infringement under subsection (c) of section 111, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that televi-sion station. (d) For any secondary transmission by a cable system that is actionable as an act of infringement pursuant to section 111(c)(3), the following shall also have standing to sue: (i) the primary transmitter whose transmission has been altered by the cable system; and (ii) any broadcast station within whose local service area the secondary transmission occurs. (e) With respect to any secondary transmission that is made by a satellite car-rier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 119(a)(5), a network sta-tion holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that station.
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(f)(1) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmis-sion and is actionable as an act of infringement under section 122, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local market of that station. (2) A television broadcast station may file a civil action against any satellite carrier that has refused to carry television broadcast signals, as required under section 122(a)(2), to enforce that television broadcast station’s rights under section 338(a) of the Communications Act of 1934. § 502 · R emedies f or in fringement: In junctions (a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain in-fringement of a copyright. (b) Any such injunction may be served anywhere in the United States on the person enjoined; it shall be operative throughout the United States and shall be enforceable, by proceedings in contempt or otherwise, by any United States court having jurisdiction of that person. The clerk of the court granting the injunction shall, when requested by any other court in which enforcement of the injunction is sought, transmit promptly to the other court a certified copy of all the papers in the case on file in such clerk’s office. § 503 · Remedies f or in fringement: Impounding and disposition of infringing articles (a) At any time while an action under this title is pending, the court may or-der the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced. (b) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.
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§ 0 Copyright Infringement and Remedies
§ 504 · Remedies for infringement: Damages and profits3 (a) In general.—Except as otherwise provided by this title, an infringer of copyright is liable for either— (1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c). (b) Actual Damages and Profits.—The copyright owner is entitled to re-cover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. (c) Statutory Damages.— (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringe-ments involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are li-able jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work. (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its dis-cretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by repro-ducing a transmission program embodying a performance of such a work. (3) (A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief 1 Copyright Law of the United States
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if the violator, or a person acting in concert with the violator, knowingly pro-vided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement. (B) Nothing in this paragraph limits what may be considered willful in-fringement under this subsection. (C) For purposes of this paragraph, the term “domain name” has the mean-ing given that term in section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” ap-proved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”; 15 U.S.C. 1127). (d) Additional Damages in Certain Cases.—In any case in which the court finds that a defendant proprietor of an establishment who claims as a de-fense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such sec-tion, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the p roprietor o f the e stablishment c oncerned s hould h ave p aid t he p laintiff for such use during the preceding period of up to 3 years. § 505 · Remedies for infringement: Costs and attorney’s fees In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an of-ficer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs. § 506 · Criminal offenses4 (a) Criminal Infringement.— (1) In general.—Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed— (A) for purposes of commercial advantage or private financial gain; (B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or
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§ 0 Copyright Infringement and Remedies
(C) by the distribution of a work being prepared for commercial distri-bution, by making it available on a computer network accessible to mem-bers of the public, if such person knew or should have known that the work was intended for commercial distribution. (2) Evidence.—For purposes of this subsection, evidence of reproduc-tion or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright. (3) Definition.—In this subsection, the term “work being prepared for commercial distribution” means— (A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution— (i) the copyright owner has a reasonable expectation of commer-cial distribution; and (ii) the copies or phonorecords of the work have not been com-mercially distributed; or (B) a motion picture, if, at the time of unauthorized distribution, the motion picture— (i) has been made available for viewing in a motion picture exhibi-tion facility; and (ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility. (b) Forfeiture and Destruction.—When any person is convicted of any violation of subsection (a), the court in its judgment of conviction shall, in addi-tion to the penalty therein prescribed, order the forfeiture and destruction or other disposition of all infringing copies or phonorecords and all implements, devices, or equipment used in the manufacture of such infringing copies or phonorecords. (c) Fraudulent Copyright Notice.—Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same pur-port that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500. (d) Fraudulent Removal of Copyright Notice.—Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500. (e) False Representation.—Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500. (f) Rights of Attribution and Integrity.—Nothing in this section ap-plies to infringement of the rights conferred by section 106A(a).
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§ 507 · Limitations on actions5 (a) Criminal Proceedings.—Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose. (b) Civil Actions.—No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued. § 508 · Notification of filing and determination of actions (a) Within one month after the filing of any action under this title, the clerks of the courts of the United States shall send written notification to the Register of Copyrights setting forth, as far as is shown by the papers filed in the court, the names and addresses of the parties and the title, author, and registration num-ber of each work involved in the action. If any other copyrighted work is later included in the action by amendment, answer, or other pleading, the clerk shall also send a notification concerning it to the Register within one month after the pleading is filed. (b) Within one month after any final order or judgment is issued in the case, the clerk of the court shall notify the Register of it, sending with the notification a copy of the order or judgment together with the written opinion, if any, of the court. (c) Upon receiving the notifications specified in this section, the Register shall make them a part of the public records of the Copyright Office. § 509 · Seizure and forfeiture (a) All copies or phonorecords manufactured, reproduced, distributed, sold, or otherwise used, intended for use, or possessed with intent to use in violation of section 506 (a), and all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced, and all electronic, mechanical, or other devices for manufacturing, reproducing, or assembling such copies or phonorecords may be seized and forfeited to the United States. (b) The applicable procedures relating to (i) the seizure, summary and judicial forfeiture, and condemnation of vessels, vehicles, merchandise, and baggage for violations of the customs laws contained in title 19, (ii) the disposition of such vessels, vehicles, merchandise, and baggage or the proceeds from the sale thereof,
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§ 0 Copyright Infringement and Remedies
(iii) the remission or mitigation of such forfeiture, (iv) the compromise of claims, and (v) the award of compensation to informers in respect of such forfei-tures, shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this section, insofar as applicable and not inconsistent with the provisions of this section; except that such duties as are imposed upon any officer or employee of the Treasury De-partment or any other person with respect to the seizure and forfeiture of vessels, vehicles, merchandise, and baggage under the provisions of the customs laws contained in title 19 shall be performed with respect to seizure and forfeiture of all articles described in subsection (a) by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General. § 510 · R emedies f or a lteration o f p rogramming b y c able s ystems6 (a) In any action filed pursuant to section 111(c)(3), the following remedies shall be available: (1) Where an action is brought by a party identified in subsections (b) or (c) of section 501, the remedies provided by sections 502 through 505, and the remedy provided by subsection (b) of this section; and (2) When an action is brought by a party identified in subsection (d) of section 501, the remedies provided by sections 502 and 505, together with any actual damages suffered by such party as a result of the infringement, and the remedy provided by subsection (b) of this section. (b) In any action filed pursuant to section 111(c)(3), the court may decree that, for a period not to exceed thirty days, the cable system shall be deprived of the benefit of a statutory license for one or more distant signals carried by such cable system. § 511 · Liability o f S tates, i nstrumentalities o f S tates, and State officials for infringement of copyright7 (a) In General.—Any State, any instrumentality of a State, and any of-ficer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign im-munity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies
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of phonorecords in violation of section 602, or for any other violation under this title. (b) Remedies.—In a suit described in subsection (a) for a violation described in that subsection, remedies (including remedies both at law and in equity) are available for the violation to the same extent as such remedies are available for such a violation in a suit against any public or private entity other than a State, instrumentality of a State, or officer or employee of a State acting in his or her official capacity. Such remedies include impounding and disposition of infring-ing articles under section 503, actual damages and profits and statutory damages under section 504, costs and attorney’s fees under section 505, and the remedies provided in section 510. § 512 · Limitations on liability relating to material online8 (a) Transitory Digital Network Communications.—A service pro-vider shall not be liable for monetary relief, or, except as provided in subsec-tion (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if— (1) the transmission of the material was initiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; (3) the service provider does not select the recipients of the material except as an automatic response to the request of another person; (4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner or-dinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connec-tions; 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 Copyright Law of the United States 1
§ 1 Copyright Infringement and Remedies
and temporary storage of material on a system or network controlled or oper-ated 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 subpara-graph (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 subpara-graph (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 sub-sequent 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 ac-cordance with a generally accepted industry standard data communica-tions 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 provid-er’s system or network or with the intermediate storage of the material; (ii) is consistent with generally accepted industry standard commu-nications protocols; and (iii) does not extract information from the provider’s system or net-work 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
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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), e xcept 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 orig-inating 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 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 in-fringing 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 para-graph (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 des-ignated an agent to receive notifications of claimed infringement described
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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 Copy-right Office, substantially the following information: (A) the name, address, phone number, and electronic mail address of the agent. (B) other contact information which the Register of Copyrights may deem appropriate. The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, in both electronic and hard copy formats, and may require payment of a fee by service providers to cover the costs of maintaining the directory. (3) Elements of notification.— (A) To be effective under this subsection, a notification of claimed in-fringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (B)(i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.
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(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 infring-ing 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 activ-ity 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 is performing a teaching or research function, for the purposes of subsections (a) and (b) such faculty member or graduate student shall be consid-ered 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, Copyright Law of the United States 1
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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 2 notifications described in subsection (c)(3) of claimed infringe-ment 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 infor-mational materials that accurately describe, and promote compliance with, the laws of the United States relating to copyright. (2) For 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 misrep-resents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or mis-identification, 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; (B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under sub-section (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
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(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 coun-ter notice, unless its designated agent first receives notice from the per-son 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 state-ment that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the sub-scriber’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 subsec-tion (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 copy-right infringement with respect to the material identified in the notice pro-vided 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 is-sue 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 be used for the purpose of protecting rights under this title.
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(3) Contents of subpoena.—The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously dis-close to the copyright owner or person authorized by the copyright owner infor-mation 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 re-quester for delivery to the service provider. (5) Actions of service provider receiving subpoena.—Upon re-ceipt 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, notwithstand-ing 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 sub-poena, 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 es-tablished 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 subscrib-ers 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 techni-cal 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
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(C) do not impose substantial costs on service providers or substantial burdens on their systems or networks. (j) Injunctions.—The following rules shall apply in the case of any applica-tion for an injunction under section 502 against a service provider that is not subject to monetary remedies under this section: (1) Scope of relief.—(A) With respect to conduct other than that which qualifies for the limitation on remedies set forth in subsection (a), the court may grant injunctive relief with respect to a service provider only in one or more of the following forms: (i) An order restraining the service provider from providing access to infringing material or activity residing at a particular online site on the provider’s system or network. (ii) An order restraining the service provider from providing access to a subscriber or account holder of the service provider’s system or network who is engaging in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order. (iii) Such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted material specified in the order of the court at a particular online location, if such relief is the least burdensome to the service provider among the forms of relief comparably effective for that purpose. (B) If the service provider qualifies for the limitation on remedies de-scribed 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 ac-tivity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order. (ii) An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States. (2) Considerations.—The court, in considering the relevant criteria for injunctive relief under applicable law, shall consider— (A) whether such an injunction, either alone or in combination with other such injunctions issued against the same service provider under this subsection, would significantly burden either the provider or the operation of the provider’s system or network; (B) the magnitude of the harm likely to be suffered by the copyright owner in the digital network environment if steps are not taken to prevent or restrain the infringement;
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(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 subsec-tion shall be available only after notice to the service provider and an op-portunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider’s communications network. (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 mat erial 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 sub-paragraph (A). (2) Monetary relief.—As used in this section, the term “monetary re-lief ” 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 pro-vider 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 determi-nation of whether that service provider qualifies for the limitations on liability under any other such subsection.
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§ 513 · Determination o f r easonable l icense f ees for individual proprietors9 In the case of any performing rights society subject to a consent decree which provides for the determination of reasonable license rates or fees to be charged by the performing rights society, notwithstanding the provisions of that consent decree, an individual proprietor who owns or operates fewer than 7 nonpublicly traded establishments in which nondramatic musical works are performed pub-licly and who claims that any license agreement offered by that performing rights society is unreasonable in its license rate or fee as to that individual proprietor, shall be entitled to determination of a reasonable license rate or fee as follows: (1) The individual proprietor may commence such proceeding for deter-mination of a reasonable license rate or fee by filing an application in the ap-plicable district court under paragraph (2) that a rate disagreement exists and by serving a copy of the application on the performing rights society. Such proceeding shall commence in the applicable district court within 90 days after the service of such copy, except that such 90-day requirement shall be subject to the administrative requirements of the court. (2) The proceeding under paragraph (1) shall be held, at the individual pro-prietor’s election, in the judicial district of the district court with jurisdiction over the applicable consent decree or in that place of holding court of a district court that is the seat of the Federal circuit (other than the Court of Appeals for the Federal Circuit) in which the proprietor’s establishment is located. (3) Such proceeding shall be held before the judge of the court with jurisdic-tion over the consent decree governing the performing rights society. At the discretion of the court, the proceeding shall be held before a special master or magistrate judge appointed by such judge. Should that consent decree provide for the appointment of an advisor or advisors to the court for any purpose, any such advisor shall be the special master so named by the court. (4) In any such proceeding, the industry rate shall be presumed to have been reasonable at the time it was agreed to or determined by the court. Such presumption shall in no way affect a determination of whether the rate is being correctly applied to the individual proprietor. (5) Pending the completion of such proceeding, the individual proprietor shall have the right to perform publicly the copyrighted musical compositions in the repertoire of the performing rights society by paying an interim license rate or fee into an interest bearing escrow account with the clerk of the court, subject to retroactive adjustment when a final rate or fee has been determined, in an amount equal to the industry rate, or, in the absence of an industry rate, the amount of the most recent license rate or fee agreed to by the parties. (6) Any decision rendered in such proceeding by a special master or mag-istrate judge named under paragraph (3) shall be reviewed by the judge of Copyright Law of the United States 1
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the court with jurisdiction over the consent decree governing the perform-ing rights society. Such proceeding, including such review, shall be concluded within 6 months after its commencement. (7) Any such final determination shall be binding only as to the individual proprietor commencing the proceeding, and shall not be applicable to any other proprietor or any other performing rights society, and the performing rights society shall be relieved of any obligation of nondiscrimination among similarly situated music users that may be imposed by the consent decree governing its operations. (8) An individual proprietor may not bring more than one proceeding pro-vided for in this section for the determination of a reasonable license rate or fee under any license agreement with respect to any one performing rights society. (9) For purposes of this section, the term “industry rate” means the license fee a performing rights society has agreed to with, or which has been deter-mined by the court for, a significant segment of the music user industry to which the individual proprietor belongs. Chapter 5 · Endnotes 1. In 1998, two sections 512 were enacted into law. On October 17, 1998, the Fairness in Music Licensing Act of 1998 was enacted. This Act amended chapter 5 to add section 512 entitled “Determination of reasonable license fees for individual proprietors.” Pub. L. No. 105-298, 112 Stat. 2827, 2831. On October 28, 1998, the Online Copyright Infringement Li-ability Limitation Act was enacted. This Act amended chapter 5 to add section 512 entitled “Limitations on liability relating to material online.” Pub. L. No. 105-304, 112 Stat. 2860, 2877. In 1999, a technical correction was enacted to redesignate the section 512 that was entitled “Determination of reasonable license fees for individual proprietors” as section 513. Also, the table of sections was amended to reflect that change. Pub. L. No. 106-44, 113 Stat. 221. See also endnote 9, infra. 2. The Berne Convention Implementation Act of 1988 amended section 501(b) by striking out “sections 205(d) and 411” and inserting in lieu thereof “section 411.” Pub. L. No. 100-568, 102 Stat. 2853, 2860. The Satellite Home Viewer Act of 1988 amended section 501 by adding subsection (e). Pub. L. No. 100-667, 102 Stat. 3935, 3957. In 1990, the Copyright Remedy Clarification Act amended section 501(a) by adding the last two sentences. Pub. L. No. 101-553, 104 Stat. 2749. The Visual Artists Rights Act of 1990 also amended section 501(a) as follows: 1) by inserting “or of the author as provided in sec-tion 106A(a)” after “118” and 2) by striking out “copyright.” and inserting in lieu thereof “copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a).” Pub. L. No. 101-650, 104 Stat. 5089, 5131. In 1999, a technical correction amended the first sentence in subsection 501(a) by insert-ing “121” in lieu of “118.” Pub. L. No. 106-44, 113 Stat. 221, 222. The Satellite Home Viewer
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Improvement Act of 1999 amended section 501 by adding a subsection (f) and, in subsection (e), by inserting “performance or display of a work embodied in a primary transmission” in lieu of “primary transmission embodying the performance or display of a work.” Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-527 and 544. The Satellite Home Viewer Improvement Act of 1999 states that section 501(f) shall be effective as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544. The Intellectual Property and High Technology Technical Amendments Act of 2002 amended section 501(a) by substituting sections “106 through 122” for “106 through 121.” Pub. L. No. 107-273, 116 Stat. 1758, 1909. 3. The Berne Convention Implementation Act of 1988 amended section 504(c) as follows: 1) in paragraph (1), by inserting “$500” in lieu of “$250” and by inserting “$20,000” in lieu of “$10,000” and 2) in paragraph (2), by inserting “$100,000” in lieu of “$50,000” and by inserting “$200” in lieu of “$100.” Pub. L. No. 100-568, 102 Stat. 2853, 2860. The Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 amended section 504(c), in paragraph (1), by substituting “$750” for “$500” and “$30,000” for “$20,000” and, in para-graph (2), by substituting “$150,000” for “$100,000.” Pub. L. No. 106-160, 113 Stat. 1774. The Fraudulent Online Identity Sanctions Act amended section 504(c) by adding a new subparagraph (3). Pub. L. No. 108-482, 118 Stat. 3912, 3916. 4. The Piracy and Counterfeiting Amendments Act of 1982 amended section 506 by sub-stituting a new subsection (a). Pub. L. No. 97-180, 96 Stat. 91, 93. The Visual Artists Rights Act of 1990 amended section 506 by adding subsection (f). Pub. L. No.101-650, 104 Stat. 5089, 5131. In 1997, the No Electronic Theft (NET) Act again amended section 506 by amending subsection (a) in its entirety. Pub. L. No. 105-147, 111 Stat. 2678. That Act also directed the United States Sentencing Commission to “ensure that the applicable guideline range for a de-fendant convicted of a crime against intellectual property … is sufficiently stringent to deter such a crime” and to “ensure that the guidelines provide for consideration of the retail value and quantity of the items with respect to which the crime against intellectual property was committed.” Pub. L. No. 105-147, 111 Stat. 2678, 2680. See also endnote 2 in Appendix F. The Artists’ Rights and Theft Prevention Act of 2005 amended subsection 506(a) in its entirety. Pub. L. No. 109-9, 119 Stat. 218, 220. 5. In 1997, the No Electronic Theft (NET) Act amended section 507(a) by inserting “5” in lieu of “three.” Pub. L. No. 105-147, 111 Stat. 2678. 6. The Satellite Home Viewer Improvement Act of 1999 amended the heading for section 510 by substituting “programming” for “programing” and, in subsection (b), by substituting “statutory” for “compulsory.” Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-543. 7. In 1990, the Copyright Remedy Clarification Act added section 511. Pub. L. No. 101-553, 104 Stat. 2749. In 1999, a technical correction amended subsection 511(a) by inserting “121” in lieu of “119.” Pub. L. No. 106-44, 113 Stat. 221, 222. The Intellectual Property and High Tech-nology Technical Amendments Act of 2002 amended section 511(a) by substituting sections “106 through 122” for “106 through 121.” Pub. L. No. 107-273, 116 Stat. 1758, 1909. 8. In 1998, the Online Copyright Infringement Liability Limitation Act added section 512. Pub. L. No. 105-304, 112 Stat. 2860, 2877. In 1999, a technical correction deleted the heading for paragraph (2) of section 512(e), which was “Injunctions.” Pub. L. No. 106-44, 113 Stat. 221, 222.
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9. The Fairness in Music Licensing Act of 1998 added section 513. Pub. L. No. 105-298, 112 Stat. 2827, 2831. This section was originally designated as section 512. However, because two sections 512 had been enacted into law in 1998, a technical amendment redesignated this as section 513. Pub. L. No. 106-44, 113 Stat. 221. See also endnote 1, supra.
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Chapter 6
Manufacturing Requirements and Importation section page 601 Manufacture, importation, and public distribution of certain copies ...................................................... 168
� 602 Infringing importation of copies or phonorecords .................... 170
� 603 Importation prohibitions: Enforcement and disposition
of excluded articles ................................................... 171
�
§ 01 Manufacturing Requirements and Importation
§ 601 · Manufacture, i mportation, a nd p ublic d istribution of certain copies1 (a) Prior to July 1, 1986, and except as provided by subsection (b), the im-portation into or public distribution in the United States of copies of a work consisting preponderantly of nondramatic literary material that is in the Eng-lish language and is protected under this title is prohibited unless the portions consisting of such material have been manufactured in the United States or Canada. (b) The provisions of subsection (a) do not apply— (1) where, on the date when importation is sought or public distribution in the United States is made, the author of any substantial part of such material is neither a national nor a domiciliary of the United States or, if such author is a national of the United States, he or she has been domiciled outside the United States for a continuous period of at least one year immediately preced-ing that date; in the case of a work made for hire, the exemption provided by this clause does not apply unless a substantial part of the work was prepared for an employer or other person who is not a national or domiciliary of the United States or a domestic corporation or enterprise; (2) where the United States Customs Service is presented with an import statement issued under the seal of the Copyright Office, in which case a total of no more than two thousand copies of any one such work shall be allowed entry; the import statement shall be issued upon request to the copyright owner or to a person designated by such owner at the time of registration for the work under section 408 or at any time thereafter; (3) where importation is sought under the authority or for the use, other than in schools, of the Government of the United States or of any State or political subdivision of a State; (4) where importation, for use and not for sale, is sought— (A) by any person with respect to no more than one copy of any work at any one time; (B) by any person arriving from outside the United States, with respect to copies forming part of such person’s personal baggage; or (C) by an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to copies intended to form a part of its library; (5) where the copies are reproduced in raised characters for the use of the blind; or (6) where, in addition to copies imported under clauses (3) and (4) of this subsection, no more than two thousand copies of any one such work, which have not been manufactured in the United States or Canada, are publicly dis-tributed in the United States; or
1 Copyright Law of the United States
Manufacturing Requirements and Importation § 01
(7) where, on the date when importation is sought or public distribution in the United States is made— (A) the author of any substantial part of such material is an individual and receives compensation for the transfer or license of the right to distrib-ute the work in the United States; and (B) the first publication of the work has previously taken place outside the United States under a transfer or license granted by such author to a transferee or licensee who was not a national or domiciliary of the United States or a domestic corporation or enterprise; and (C) there has been no publication of an authorized edition of the work of which the copies were manufactured in the United States; and (D) the copies were reproduced under a transfer or license granted by such author or by the transferee or licensee of the right of first publication as mentioned in subclause (B), and the transferee or the licensee of the right of reproduction was not a national or domiciliary of the United States or a domestic corporation or enterprise. (c) The requirement of this section that copies be manufactured in the United States or Canada is satisfied if— (1) in the case where the copies are printed directly from type that has been set, or directly from plates made from such type, the setting of the type and the making of the plates have been performed in the United States or Canada; or (2) in the case where the making of plates by a lithographic or photoen-graving process is a final or intermediate step preceding the printing of the copies, the making of the plates has been performed in the United States or Canada; and (3) in any case, the printing or other final process of producing multiple copies and any binding of the copies have been performed in the United States or Canada. (d) Importation or public distribution of copies in violation of this section does not invalidate protection for a work under this title. However, in any civil action or criminal proceeding for infringement of the exclusive rights to repro-duce and distribute copies of the work, the infringer has a complete defense with respect to all of the nondramatic literary material comprised in the work and any other parts of the work in which the exclusive rights to reproduce and distribute copies are owned by the same person who owns such exclusive rights in the non-dramatic literary material, if the infringer proves— (1) that copies of the work have been imported into or publicly distributed in the United States in violation of this section by or with the authority of the owner of such exclusive rights; and (2) that the infringing copies were manufactured in the United States or Canada in accordance with the provisions of subsection (c); and
Copyright Law of the United States 1
§ 01 Manufacturing Requirements and Importation
(3) that the infringement was commenced before the effective date of reg-istration for an authorized edition of the work, the copies of which have been manufactured in the United States or Canada in accordance with the provi-sions of subsection (c). (e) In any action for infringement of the exclusive rights to reproduce and distribute copies of a work containing material required by this section to be manufactured in the United States or Canada, the copyright owner shall set forth in the complaint the names of the persons or organizations who performed the processes specified by subsection (c) with respect to that material, and the places where those processes were performed. § 602 · Infringing importation of copies or phonorecords (a) Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501. This subsection does not apply to— (1) importation of copies or phonorecords under the authority or for the use of the Government of the United States or of any State or political subdivision of a State, but not including copies or phonorecords for use in schools, or copies of any audiovisual work imported for purposes other than archival use; (2) importation, for the private use of the importer and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time, or by any person arriving from outside the United States with respect to copies or phonorecords forming part of such person’s personal baggage; or (3) importation by or for an organization operated for scholarly, educa-tional, or religious purposes and not for private gain, with respect to no more than one copy of an audiovisual work solely for its archival purposes, and no more than five copies or phonorecords of any other work for its library lending or archival purposes, unless the importation of such copies or pho-norecords is part of an activity consisting of systematic reproduction or dis-tribution, engaged in by such organization in violation of the provisions of section 108(g)(2). (b) In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited. In a case where the copies or phonorecords were law-fully made, the United States Customs Service has no authority to prevent their importation unless the provisions of section 601 are applicable. In either case, the
1 0 Copyright Law of the United States
Manufacturing Requirements and Importation Endnotes
Secretary of the Treasury is authorized to prescribe, by regulation, a procedure under which any person claiming an interest in the copyright in a particular work may, upon payment of a specified fee, be entitled to notification by the Customs Service of the importation of articles that appear to be copies or phonorecords of the work. § 603 · Importation p rohibitions: Enforcement and disposition of excluded articles2 (a) The Secretary of the Treasury and the United States Postal Service shall separately or jointly make regulations for the enforcement of the provisions of this title prohibiting importation. (b) These regulations may require, as a condition for the exclusion of articles under section 602— (1) that the person seeking exclusion obtain a court order enjoining impor-tation of the articles; or (2) that the person seeking exclusion furnish proof, of a specified nature and in accordance with prescribed procedures, that the copyright in which such person claims an interest is valid and that the importation would violate the prohibition in section 602; the person seeking exclusion may also be required to post a surety bond for any injury that may result if the detention or exclu-sion of the articles proves to be unjustified. (c) Articles imported in violation of the importation prohibitions of this title are subject to seizure and forfeiture in the same manner as property imported in violation of the customs revenue laws. Forfeited articles shall be destroyed as directed by the Secretary of the Treasury or the court, as the case may be. Chapter 6 · Endnotes 1. In 1982, section 601(a) was amended in the first sentence by substituting “1986” for “1982.” Pub. L. No. 97-215, 96 Stat. 178. 2. The Anticounterfeiting Consumer Protection Act of 1996 amended the last sentence of section 603(c) by deleting the semicolon and all text immediately following the words “as the case may be.” Pub. L. No. 104-153, 110 Stat. 1386, 1388.
Copyright Law of the United States 1 1
Manufacturing Requirements and Importation
1 Copyright Law of the United States
Chapter 7 1
Copyright Office section page 701 The Copyright Office: General responsibilities and organization .................................................... 174
� 702 Copyright Office regulations ......................................... 175
� 703 Effective date of actions in Copyright Office ......................... 175
� 704 Retention and disposition of articles deposited in Copyright Office .................................................. 175
� 705 Copyright Office records: Preparation, maintenance,
� public inspection, and searching ..................................... 176
� 706 Copies of Copyright Office records ................................... 176
� 707 Copyright Office forms and publications ............................. 177
� 708 Copyright Office fees ................................................. 177
� 709 Delay in delivery caused by disruption of postal
or other services ...................................................... 179
�
§ 01 Copyright Office
§ 701 · The C opyright O ffice: General responsibilities and organization2 (a) All administrative functions and duties under this title, except as otherwise specified, are the responsibility of the Register of Copyrights as director of the Copyright Office of the Library of Congress. The Register of Copyrights, together with the subordinate officers and employees of the Copyright Office, shall be ap-pointed by the Librarian of Congress, and shall act under the Librarian’s general direction and supervision. (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 copy-right, 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 organiza-tions and meetings with foreign government officials relating to copyright, other matters arising under this title, and related matters, including as a mem-ber of United States delegations as authorized by the appropriate Executive branch authority. (4) Conduct studies and programs regarding copyright, other matters aris-ing under this title, and related matters, the administration of the Copyright Office, or any function vested in the Copyright Office by law, including edu-cational 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 ap-propriate in furtherance of the functions and duties specifically set forth in this title. (c) The Register of Copyrights shall adopt a seal to be used on and after January 1, 1978, to authenticate all certified documents issued by the Copyright Office. (d) The Register of Copyrights shall make an annual report to the Librarian of Congress of the work and accomplishments of the Copyright Office during the previous fiscal year. The annual report of the Register of Copyrights shall be pub-lished separately and as a part of the annual report of the Librarian of Congress. (e) Except as provided by section 706(b) and the regulations issued thereunder, all actions taken by the Register of Copyrights under this title are subject to the provisions of the Administrative Procedure Act of June 11, 1946, as amended (c. 324, 60 Stat. 237, title 5, United States Code, Chapter 5, Subchapter II and Chapter 7). (f) The Register of Copyrights shall be compensated at the rate of pay in ef-fect for level III of the Executive Schedule under section 5314 of title 5.3 The Librarian of Congress shall establish not more than four positions for Associate
1 Copyright Law of the United States
Copyright Office § 0
Registers of Copyrights, in accordance with the recommendations of the Register of Copyrights. The Librarian shall make appointments to such positions after consultation with the Register of Copyrights. Each Associate Register of Copy-rights shall be paid at a rate not to exceed the maximum annual rate of basic pay payable for GS-18 of the General Schedule under section 5332 of title 5. § 702 · C opyright O ffice r egulations4 The Register of Copyrights is authorized to establish regulations not inconsis-tent with law for the administration of the functions and duties made the respon-sibility of the Register under this title. All regulations established by the Register under this title are subject to the approval of the Librarian of Congress. § 703 · E ffective d ate o f a ctions i n C opyright O ffice In any case in which time limits are prescribed under this title for the per-formance of an action in the Copyright Office, and in which the last day of the prescribed period falls on a Saturday, Sunday, holiday, or other nonbusiness day within the District of Columbia or the Federal Government, the action may be taken on the next succeeding business day, and is effective as of the date when the period expired. § 704 · Retention a nd d isposition o f a rticles d eposited in Copyright Office (a) Upon their deposit in the Copyright Office under sections 407 and 408, all copies, phonorecords, and identifying material, including those deposited in connection with claims that have been refused registration, are the property of the United States Government. (b) In the case of published works, all copies, phonorecords, and identifying material deposited are available to the Library of Congress for its collections, or for exchange or transfer to any other library. In the case of unpublished works, the Library is entitled, under regulations that the Register of Copyrights shall prescribe, to select any deposits for its collections or for transfer to the National Archives of the United States or to a Federal records center, as defined in section 2901 of title 44. (c) The Register of Copyrights is authorized, for specific or general catego-ries of works, to make a facsimile reproduction of all or any part of the mate-rial deposited under section 408, and to make such reproduction a part of the Copyright Law of the United States 1
§ 0 Copyright Office
Copyright Office records of the registration, before transferring such material to the Library of Congress as provided by subsection (b), or before destroying or otherwise disposing of such material as provided by subsection (d). (d) Deposits not selected by the Library under subsection (b), or identifying portions or reproductions of them, shall be retained under the control of the Copyright Office, including retention in Government storage facilities, for the longest period considered practicable and desirable by the Register of Copyrights and the Librarian of Congress. After that period it is within the joint discretion of the Register and the Librarian to order their destruction or other disposition; but, in the case of unpublished works, no deposit shall be knowingly or intentionally destroyed or otherwise disposed of during its term of copyright unless a facsimile reproduction of the entire deposit has been made a part of the Copyright Office records as provided by subsection (c). (e) The depositor of copies, phonorecords, or identifying material under sec-tion 408, or the copyright owner of record, may request retention, under the control of the Copyright Office, of one or more of such articles for the full term of copyright in the work. The Register of Copyrights shall prescribe, by regulation, the conditions under which such requests are to be made and granted, and shall fix the fee to be charged under section 708(a)(10) if the request is granted. § 705 · Copyright O ffice r ecords: P reparation, m aintenance, public inspection, and searching5 (a) The Register of Copyrights shall ensure that records of deposits, registra-tions, recordations, and other actions taken under this title are maintained, and that indexes of such records are prepared. (b) Such records and indexes, as well as the articles deposited in connection with completed copyright registrations and retained under the control of the Copyright Office, shall be open to public inspection. (c) Upon request and payment of the fee specified by section 708, the Copy-right Office shall make a search of its public records, indexes, and deposits, and shall furnish a report of the information they disclose with respect to any par-ticular deposits, registrations, or recorded documents. § 706 · C opies o f C opyright O ffice r ecords (a) Copies may be made of any public records or indexes of the Copyright Office; additional certificates of copyright registration and copies of any public records or indexes may be furnished upon request and payment of the fees speci-fied by section 708.
1 Copyright Law of the United States
Copyright Office § 0
(b) Copies or reproductions of deposited articles retained under the control of the Copyright Office shall be authorized or furnished only under the conditions specified by the Copyright Office regulations. § 707 · Copyright Office forms and publications (a) Catalog of Copyright Entries.—The Register of Copyrights shall compile and publish at periodic intervals catalogs of all copyright registrations. These catalogs shall be divided into parts in accordance with the various classes of works, and the Register has discretion to determine, on the basis of practica-bility and usefulness, the form and frequency of publication of each particular part. (b) Other Publications.—The Register shall furnish, free of charge upon request, application forms for copyright registration and general informational material in connection with the functions of the Copyright Office. The Register also has the authority to publish compilations of information, bibliographies, and other material he or she considers to be of value to the public. (c) Distribution of Publications.—All publications of the Copyright Of-fice shall be furnished to depository libraries as specified under section 1905 of title 44, and, aside from those furnished free of charge, shall be offered for sale to the public at prices based on the cost of reproduction and distribution. § 708 · Copyright Office fees6 (a) Fees.—Fees shall be paid to the Register of Copyrights— (1) on filing each application under section 408 for registration of a copy-right claim or for a supplementary registration, including the issuance of a certificate of registration if registration is made; (2) on filing each application for registration of a claim for renewal of a sub-sisting copyright under section 304(a), including the issuance of a certificate of registration if registration is made; (3) for the issuance of a receipt for a deposit under section 407; (4) for the recordation, as provided by section 205, of a transfer of copyright ownership or other document; (5) for the filing, under section 115(b), of a notice of intention to obtain a compulsory license; (6) for the recordation, under section 302(c), of a statement revealing the identity of an author of an anonymous or pseudonymous work, or for the recordation, under section 302(d), of a statement relating to the death of an author;
Copyright Law of the United States 1
§ 0 Copyright Office
(7) for the issuance, under section 706, of an additional certificate of reg-istration; (8) for the issuance of any other certification; and (9) for the making and reporting of a search as provided by section 705, and for any related services. The Register is authorized to fix fees for other services, including the cost of preparing copies of Copyright Office records, whether or not such copies are certified, based on the cost of providing the service. (b) Adjustment of Fees.—The Register of Copyrights may, by regulation, adjust the fees for the services specified in paragraphs (1) through (9) of subsec-tion (a) in the following manner:7 (1) The Register shall conduct a study of the costs incurred by the Copy-right Office for the registration of claims, the recordation of documents, and the provision of services. The study shall also consider the timing of any adjustment in fees and the authority to use such fees consistent with the budget. (2) The Register may, on the basis of the study under paragraph (1), and sub-ject to paragraph (5), adjust fees to not more than that necessary to cover the reasonable costs incurred by the Copyright Office for the services described in paragraph (1), plus a reasonable inflation adjustment to account for any estimated increase in costs. (3) Any fee established under paragraph (2) shall be rounded off to the near-est dollar, or for a fee less than $12, rounded off to the nearest 50 cents. (4) Fees established under this subsection shall be fair and equitable and give due consideration to the objectives of the copyright system. (5) If the Register determines under paragraph (2) that fees should be adjust-ed, the Register shall prepare a proposed fee schedule and submit the schedule with the accompanying economic analysis to the Congress. The fees proposed by the Register may be instituted after the end of 120 days after the schedule is submitted to the Congress unless, within that 120-day period, a law is enacted stating in substance that the Congress does not approve the schedule. (c) The fees prescribed by or under this section are applicable to the United States Government and any of its agencies, employees, or officers, but the Register of Copyrights has discretion to waive the requirement of this subsection in oc-casional or isolated cases involving relatively small amounts. (d) (1) Except as provided in paragraph (2), all fees received under this section shall be deposited by the Register of Copyrights in the Treasury of the United States and shall be credited to the appropriations for necessary expenses of the Copyright Office. Such fees that are collected shall remain available until ex-pended. The Register may, in accordance with regulations that he or she shall prescribe, refund any sum paid by mistake or in excess of the fee required by this section.
1 Copyright Law of the United States
Copyright Office Endnotes
(2) In the case of fees deposited against future services, the Register of Copyrights shall request the Secretary of the Treasury to invest in interest- bearing securities in the United States Treasury any portion of the fees that, as determined by the Register, is not required to meet current deposit account demands. Funds from such portion of fees shall be invested in securities that permit funds to be available to the Copyright Office at all times if they are determined to be necessary to meet current deposit account demands. Such investments shall be in public debt securities with maturities suitable to the needs of the Copyright Office, as determined by the Register of Copyrights, and bearing interest at rates determined by the Secretary of the Treasury, taking into consideration current market yields on outstanding marketable obligations of the United States of comparable maturities. (3) The income on such investments shall be deposited in the Treasury of the United States and shall be credited to the appropriations for necessary expenses of the Copyright Office. § 709 · Delay in delivery caused by disruption of postal or other services In any case in which the Register of Copyrights determines, on the basis of such evidence as the Register may by regulation require, that a deposit, application, fee, or any other material to be delivered to the Copyright Office by a particular date, would have been received in the Copyright Office in due time except for a general disruption or suspension of postal or other transportation or communications services, the actual receipt of such material in the Copyright Office within one month after the date on which the Register determines that the disruption or suspension of such services has terminated, shall be considered timely. Chapter 7 · Endnotes 1. The Work Made for Hire and Copyright Corrections Act of 2000 amended the table of sections for chapter 7 by deleting section 710, entitled, “Reproduction for use of the blind and physically handicapped: Voluntary licensing forms and procedures.” Pub. L. No. 106-379, 114 Stat. 1444, 1445. 2. The Copyright Fees and Technical Amendments Act of 1989 amended section 701 by adding subsection (e). Pub. L. No. 101-319, 104 Stat. 290. In 1998, the Digital Millennium Copyright Act amended section 701 by adding a new subsection (b), redesignating former subsections (b) through (e) as (c) through (f) respectively, and, in the new subsection (f), by substituting “III” for “IV” and “5314” for “5315.” Pub. L. No. 105-304, 112 Stat. 2860, 2887. 3. Title 5 of the United States Code is entitled “Government Organization and Employees.”
Copyright Law of the United States 1
Endnotes Copyright Office
4. Copyright Office regulations are published in the Federal Register and in title 37, chap-ter II, of the Code of Federal Regulations. 5. The Work Made for Hire and Copyright Corrections Act of 2000 amended section 705 by rewriting paragraph (a). Pub. L. No. 106-379, 114 Stat. 1444, 1445. 6. The Copyright Fees and Technical Amendments Act of 1989 amended section 708 by substituting a new subsection (a), by redesignating subsections (b) and (c) as subsections (c) and (d), respectively, and by adding a new subsection (b). Pub. L. No. 101-318, 104 Stat. 287. The Act states that these amendments “shall take effect 6 months after the date of the enact-ment of this Act” and shall apply to: (A) claims to original, supplementary, and renewal copyright received for registra-tion, and to items received for recordation in the Copyright Office, on or after such effective date, and (B) other requests for services received on or after such effective date, or received before such effective date for services not yet rendered as of such date. With respect to prior claims, the Act states that claims to original, supplementary, and renewal copyright received for registration and items received for recordation in acceptable form in the Copyright Office before the above mentioned effective date, and requests for services which are rendered before such effective date “shall be governed by section 708 of title 17, United States Code, as in effect before such effective date.” Pub. L. No. 101-318, 104 Stat. 287, 288. The Copyright Renewal Act of 1992 amended paragraph (2) of section 708(a) by striking the words “in its first term” and by substituting “$20” in lieu of “$12.” Pub. L. No. 102-307, 106 Stat. 264, 266. In 1997, section 708 was amended by rewriting subsections (b) and (d) in their entirety. Pub. L. No. 105-80, 111 Stat. 1529, 1532. The Work Made for Hire and Copyright Corrections Act of 2000 amended section 708 by rewriting subsection (a), by substituting new language for the first sentence in subsection (b) and by substituting “adjustment” for “increase” in paragraph (b)(1), the word “adjust” for “increase” in paragraph (b)(2) and the word “adjusted” for “increased” in paragraph (b)(5). Pub. L. No. 106-379, 114 Stat. 1444, 1445. The Act also stated that “The fees under section 708(a) of title 17, United States Code, on the date of the enactment of this Act shall be the fees in effect under section 708(a) of such title on the day before such date of enactment.” 7. The current fees may be found in the Code of Federal Regulations, at 37 CFR §201.3, as authorized by Pub. L. No. 105-80, 111 Stat. 1529, 1532. In Pub. L. No. 105-80, Congress amended section 708(b) to require that the Register of Copyrights establish fees by regula-tion rather than by codifying them in title 17, United States Code, as was previously done.
1 0 Copyright Law of the United States
Chapter 8 1
Proceedings by Copyright Royalty Judges section page 801 Copyright Royalty Judges; appointment and functions ............... 182
� 802 Copyright Royalty Judgeships; staff .................................. 185
� 803 Proceedings of Copyright Royalty Judges ............................. 190
� 804 Institution of proceedings ........................................... 200
� 805 General rule for voluntarily negotiated agreements .................. 203
�
§ 01 Proceedings by Copyright Royalty Judges
§ 801 · Copyright Royalty Judges; appointment and functions2 (a) Appointment.—The Librarian of Congress shall appoint 3 full-time Copyright Royalty Judges, and shall appoint 1 of the 3 as the Chief Copyright Royalty Judge. The Librarian shall make appointments to such positions after consultation with the Register of Copyrights. (b) Functions.—Subject to the provisions of this chapter, the functions of the Copyright Royalty Judges shall be as follows: (1) To make determinations and adjustments of reasonable terms and rates of royalty payments as provided in sections 112(e), 114, 115, 116, 118, 119, and 1004. The rates applicable under sections 114(f)(1)(B), 115, and 116 shall be cal-culated to achieve the following objectives: (A) To maximize the availability of creative works to the public. (B) To afford the copyright owner a fair return for his or her creative work and the copyright user a fair income under existing economic conditions. (C) To reflect the relative roles of the copyright owner and the copyright user in the product made available to the public with respect to relative creative contribution, technological contribution, capital investment, cost, risk, and contribution to the opening of new markets for creative expres-sion and media for their communication. (D) To minimize any disruptive impact on the structure of the indus-tries involved and on generally prevailing industry practices. (2) To make determinations concerning the adjustment of the copy-right royalty rates under section 111 solely in accordance with the following provisions: (A) The rates established by section 111(d)(1)(B) may be adjusted to reflect— (i) national monetary inflation or deflation; or (ii) changes in the average rates charged cable subscribers for the basic service of providing secondary transmissions to maintain the real con-stant dollar level of the royalty fee per subscriber which existed as of the date of October 19, 1976, except that— (I) if the average rates charged cable system subscribers for the basic service of providing secondary transmissions are changed so that the average rates exceed national monetary inflation, no change in the rates established by section 111(d)(1)(B) shall be permitted; and (II) no increase in the royalty fee shall be permitted based on any reduc-tion in the average number of distant signal equivalents per subscriber. The Copyright Royalty Judges may consider all factors relating to the maintenance of such level of payments, including, as an extenuating fac-tor, whether the industry has been restrained by subscriber rate regulating 1 Copyright Law of the United States
Proceedings by Copyright Royalty Judges § 01
authorities from increasing the rates for the basic service of providing sec-ondary transmissions. (B) In the event that the rules and regulations of the Federal Communi-cations Commission are amended at any time after April 15, 1976, to permit the carriage by cable systems of additional television broadcast signals be-yond t he l ocal s ervice a rea o f the p rimary t ransmitters o f such s ignals, the royalty rates established by section 111(d)(1)(B) may be adjusted to ensure that the rates for the additional distant signal equivalents resulting from such carriage are reasonable in the light of the changes effected by the amendment to such rules and regulations. In determining the reasonable-ness of rates proposed following an amendment of Federal Communica-tions Commission rules and regulations, the Copyright Royalty Judges shall consider, among other factors, the economic impact on copyright owners and users; except that no adjustment in royalty rates shall be made under this subparagraph with respect to any distant signal equivalent or fraction thereof represented by— (i) carriage of any signal permitted under the rules and regulations of the Federal Communications Commission in effect on April 15, 1976, or the carriage of a signal of the same type (that is, independent, net-work, or noncommercial educational) substituted for such permitted signal; or (ii) a television broadcast signal first carried after April 15, 1976, pur-suant to an individual waiver of the rules and regulations of the Federal Communications Commission, as such rules and regulations were in effect on April 15, 1976. (C) In the event of any change in the rules and regulations of the Fed-eral Communications Commission with respect to syndicated and sports program exclusivity after April 15, 1976, the rates established by section 111(d)(1)(B) may be adjusted to assure that such rates are reasonable in light of the changes to such rules and regulations, but any such adjustment shall apply only to the affected television broadcast signals carried on those systems affected by the change. (D) The gross receipts limitations established by section 111(d)(1) (C) and (D) shall be adjusted to reflect national monetary inflation or deflation or changes in the average rates charged cable system subscribers for the basic service of providing secondary transmissions to maintain the real constant dollar value of the exemption provided by such section, and the royalty rate specified therein shall not be subject to adjustment. (3)(A) To authorize the distribution, under sections 111, 119, and 1007, of those royalty fees collected under sections 111, 119, and 1005, as the case may be, to the extent that the Copyright Royalty Judges have found that the distribu-tion of such fees is not subject to controversy.
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§ 01 Proceedings by Copyright Royalty Judges
(B) In cases where the Copyright Royalty Judges determine that controversy exists, the Copyright Royalty Judges shall determine the distribution of such fees, including partial distributions, in accordance with section 111, 119, or 1007, as the case may be. (C) Notwithstanding section 804(b)(8), the Copyright Royalty Judges, at any time after the filing of claims under section 111, 119, or 1007, may, upon motion of one or more of the claimants and after publication in the Federal Register of a request for responses to the motion from interested claimants, make a partial distribution of such fees, if, based upon all responses received during the 30-day period beginning on the date of such publication, the Copyright Royalty Judges conclude that no claimant entitled to receive such fees has stated a reasonable objection to the partial distribution, and all such claimants— (i) agree to the partial distribution; (ii) sign an agreement obligating them to return any excess amounts to the extent necessary to comply with the final determination on the distribu-tion of the fees made under subparagraph (B); (iii) file the agreement with the Copyright Royalty Judges; and (iv) agree that such funds are available for distribution. (D) The Copyright Royalty Judges and any other officer or employee act-ing in good faith in distributing funds under subparagraph (C) shall not be held liable for the payment of any excess fees under subparagraph (C). The Copyright Royalty Judges shall, at the time the final determination is made, calculate any such excess amounts. (4) To accept or reject royalty claims filed under sections 111, 119, and 1007, on the basis of timeliness or the failure to establish the basis for a claim. (5) To accept or reject rate adjustment petitions as provided in section 804 and petitions to participate as provided in section 803(b) (1) and (2). (6) To determine the status of a digital audio recording device or a digital au-dio interface device under sections 1002 and 1003, as provided in section 1010. (7)(A) To adopt as a basis for statutory terms and rates or as a basis for the distribution of stat utory royalty payments, an agreement concerning such matters reached among some or all of the participants in a proceeding at any time during the proceeding, except that— (i) the Copyright Royalty Judges shall provide to those that would be bound by the terms, rates, or other determination set by any agreement in a proceeding to determine royalty rates an opportunity to comment on the agreement and shall provide to participants in the proceeding under section 803(b)(2) that would be bound by the terms, rates, or other determi-nation set by the agreement an opportunity to comment on the agreement and object to its adoption as a basis for statutory terms and rates; and (ii) the Copyright Royalty Judges may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties
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to the agreement, if any participant described in clause (i) objects to the agreement and the Copyright Royalty Judges conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates. (B) License agreements voluntarily negotiated pursuant to section 112(e)(5), 114(f)(3), 115(c)(3)(E)(i), 116(c), or 118(b)(2) that do not result in statutory terms and rates shall not be subject to clauses (i) and (ii) of subparagraph (A). (C) Interested parties may negotiate and agree to, and the Copyright Roy-alty Judges may adopt, an agreement that specifies as terms notice and record-keeping requirements that apply in lieu of those that would otherwise apply under regulations. (8) To perform other duties, as assigned by the Register of Copyrights with-in the Library of Congress, except as provided in section 802(g), at times when Copyright Royalty Judges are not engaged in performing the other duties set forth in this section. (c) Rulings.—The Copyright Royalty Judges may make any necessary proce-dural or evidentiary rulings in any proceeding under this chapter and may, before commencing a proceeding under this chapter, make any such rulings that would apply to the proceedings conducted by the Copyright Royalty Judges. (d) Administrative Support.—The Librarian of Congress shall provide the Copyright Royalty Judges with the necessary administrative services related to proceedings under this chapter. (e) Location in Library of Congress.—The offices of the Copyright Roy-alty Judges and staff shall be in the Library of Congress. (f) Effective Date of Actions.—On and after the date of the enactment of the Copyright Royalty and Distribution Reform Act of 2004, in any case in which time limits are prescribed under this title for performance of an action with or by the Copyright Royalty Judges, and in which the last day of the pre-scribed period falls on a Saturday, Sunday, holiday, or other nonbusiness day within the District of Columbia or the Federal Government, the action may be taken on the next succeeding business day, and is effective as of the date when the period expired. § 802 · Copyright Royalty Judgeships; staff3 (a) Qualifications of Copyright Royalty Judges.— (1) In general.—Each Copyright Royalty Judge shall be an attorney who has at least 7 years of legal experience. The Chief Copyright Royalty Judge shall have at least 5 years of experience in adjudications, arbitrations, or court trials. Of the other 2 Copyright Royalty Judges, 1 shall have sig-nificant knowledge of copyright law, and the other shall have significant
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knowledge of economics. An individual may serve as a Copyright Royalty Judge only if the individual is free of any financial conflict of interest under subsection (h). (2) Definition.—In this subsection, the term “adjudication” has the mean-ing given that term in section 551 of title 5, but does not include mediation. (b) Staff.—The Chief Copyright Royalty Judge shall hire 3 full-time staff members to assist the Copyright Royalty Judges in performing their functions. (c) Terms.—The individual first appointed as the Chief Copyright Royalty Judge shall be appointed to a term of 6 years, and of the remaining individuals first appointed as Copyright Royalty Judges, 1 shall be appointed to a term of 4 years, and the other shall be appointed to a term of 2 years. Thereafter, the terms of succeeding Copyright Royalty Judges shall each be 6 years. An individual serv-ing as a Copyright Royalty Judge may be reappointed to subsequent terms. The term of a Copyright Royalty Judge shall begin when the term of the predecessor of that Copyright Royalty Judge ends. When the term of office of a Copyright Royalty Judge ends, the individual serving that term may continue to serve until a successor is selected. (d) Vacancies or Incapacity.— (1) Vacancies.—If a vacancy should occur in the position of Copyright Royalty Judge, the Librarian of Congress shall act expeditiously to fill the va-cancy, and may appoint an interim Copyright Royalty Judge to serve until an-other Copyright Royalty Judge is appointed under this section. An individual appointed to fill the vacancy occurring before the expiration of the term for which the predecessor of that individual was appointed shall be appointed for the remainder of that term. (2) Incapacity.—In the case in which a Copyright Royalty Judge is tem-porarily unable to perform his or her duties, the Librarian of Congress may appoint an interim Copyright Royalty Judge to perform such duties during the period of such incapacity. (e) Compensation.— (1) Judges.—The Chief Copyright Royalty Judge shall receive compensa-tion at the rate of basic pay payable for level AL-1 for administrative law judges pursuant to section 5372(b) of title 5, and each of the other two Copyright Roy-alty Judges shall receive compensation at the rate of basic pay payable for level AL-2 for administrative law judges pursuant to such section. The compensation of the Copyright Royalty Judges shall not be subject to any regulations adopted by the Office of Personnel Management pursuant to its authority under section 5376(b)(1) of title 5. (2) Staff members.—Of the staff members appointed under subsection (b)— (A) the rate of pay of 1 staff member shall be not more than the basic rate of pay payable for level 10 of GS-15 of the General Schedule;
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(B) the rate of pay of 1 staff member shall be not less than the basic rate of pay payable for GS-13 of the General Schedule and not more than the basic rate of pay payable for level 10 of GS-14 of such Schedule; and (C) the rate of pay for the third staff member shall be not less than the basic rate of pay payable for GS-8 of the General Schedule and not more than the basic rate of pay payable for level 10 of GS-11 of such Schedule. (3) Locality pay.—All rates of pay referred to under this subsection shall include locality pay. (f) Independence of Copyright Royalty Judge.— (1) In making determinations.— (A) In general.—(i) Subject to subparagraph (B) and clause (ii) of this subparagraph, the Copyright Royalty Judges shall have full independence in making determinations concerning adjustments and determinations of copyright royalty rates and terms, the distribution of copyright royalties, the acceptance or rejection of royalty claims, rate adjustment petitions, and petitions to participate, and in issuing other rulings under this title, except that the Copyright Royalty Judges may consult with the Register of Copy-rights on any matter other than a question of fact. (ii) One or more Copyright Royalty Judges may, or by motion to the Copyright Royalty Judges, any participant in a proceeding may, request from the Register of Copyrights an interpretation of any material ques-tions of s ubstantive law that relate to the construction of p rovisions of t his title and arise in the course of the proceeding. Any request for a written interpretation shall be in writing and on the record, and reasonable provi-sion shall be made to permit participants in the proceeding to comment on the material questions of substantive law in a manner that minimizes duplication and delay. Except as provided in subparagraph (B), the Regis-ter of Copyrights shall deliver to the Copyright Royalty Judges a written response within 14 days after the receipt of all briefs and comments from the participants. The Copyright Royalty Judges shall apply the legal in-terpretation embodied in the response of the Register of Copyrights if it is timely delivered, and the response shall be included in the record that accompanies the final determination. The authority under this clause shall not be construed to authorize the Register of Copyrights to provide an in-terpretation of questions of procedure before the Copyright Royalty Judges, the ultimate adjustments and determinations of copyright royalty rates and terms, the ultimate distribution of copyright royalties, or the acceptance or rejection of royalty claims, rate adjustment petitions, or petitions to participate in a proceeding. (B) Novel questions.—(i) In any case in which a novel material ques-tion of substantive law concerning an interpretation of those provisions of this title that are the subject of the proceeding is presented, the Copyright
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Royalty Judges shall request a decision of the Register of Copyrights, in writing, to resolve such novel question. Reasonable provision shall be made for comment on such request by the participants in the proceeding, in such a way as to minimize duplication and delay. The Register of Copyrights shall transmit his or her decision to the Copyright Royalty Judges within 30 days after the Register of Copyrights receives all of the briefs or comments of the participants. Such decision shall be in writing and included by the Copyright Royalty Judges in the record that accompanies their final deter-mination. If such a decision is timely delivered to the Copyright Royalty Judges, the Copyright Royalty Judges shall apply the legal determinations embodied in the decision of the Register of Copyrights in resolving mate-rial questions of substantive law. (ii) In clause (i), a “novel question of law” is a question of law that has not been determined in prior decisions, determinations, and rulings described in section 803(a). (C) Consultation.—Notwithstanding the provisions of subparagraph (A), the Copyright Royalty Judges shall consult with the Register of Copy-rights with respect to any determination or ruling that would require that any act be performed by the Copyright Office, and any such determination or ruling shall not be binding upon the Register of Copyrights. (D) Review of legal conclusions by the register of copyrights.—
The Register of C opyrights may review for legal error the resolu-tion by the Copyright Royalty Judges of a material question of substantive law under this title that underlies or is contained in a final determination of the Copyright Royalty Judges. If the Register of Copyrights concludes, after taking into consideration the views of the participants in the pro-ceeding, that any resolution reached by the Copyright Royalty Judges was in material error, the Register of Copyrights shall issue a written decision correcting such legal error, which shall be made part of the record of the proceeding. The Register of Copyrights shall issue such written decision not later than 60 days after the date on which the final determination by the Copyright Royalty Judges is issued. Additionally, the Register of Copyrights shall cause to be published in the Federal Register such writ-ten decision, together with a specific identification of the legal conclusion of the Copyright Royalty Judges that is determined to be erroneous. As to conclusions of substantive law involving an interpretation of the statutory provisions of this title, the decision of the Register of Copyrights shall be binding as precedent upon the Copyright Royalty Judges in subsequent proceedings under this chapter. When a decision has been rendered pursu-ant to this subparagraph, the Register of Copyrights may, on the basis of and in accordance with such decision, intervene as of right in any appeal of a final determination of the Copyright Royalty Judges pursuant to section
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803(d) in the United States Court of Appeals for the District of Columbia Circuit. If, prior to intervening in such an appeal, the Register of Copy-rights gives notification to, and undertakes to consult with, the Attorney General with respect to such intervention, and the Attorney General fails, within a reasonable period after receiving such notification, to intervene in such appeal, the Register of C opyrights may intervene in such appeal in his or her own name by any attorney designated by the Register of Copyrights for such purpose. Intervention by the Register of Copyrights in his or her own name shall not preclude the Attorney General from intervening on behalf of the United States in such an appeal as may be otherwise provided or required by law. (E) Effect on judicial review.—Nothing in this section shall be interpreted to alter the standard applied by a court in reviewing legal deter-minations involving an interpretation or construction of the provisions of this title or to affect the extent to which any construction or interpretation of the provisions of this title shall be accorded deference by a reviewing court. (2) Performance appraisals.— (A) In general.—Notwithstanding any other provision of law or any regulation of the Library of C ongress, and subject to subparagraph (B), the Copyright Royalty Judges shall not receive performance appraisals. (B) Relating to sanction or removal.—To the extent that the Li-brarian of Congress adopts regulations under subsection (h) relating to the sanction or removal of a Copyright Royalty Judge and such regulations require documentation to establish the cause of such sanction or removal, the Copyright Royalty Judge may receive an appraisal related specifically to the cause of the sanction or removal. (g) Inconsistent Duties Barred.—No Copyright Royalty Judge may un-dertake duties that conflict with his or her duties and responsibilities as a Copy-right Royalty Judge. (h) Standards of Conduct.—The Librarian of Congress shall adopt regula-tions regarding the standards of conduct, including financial conflict of interest and restrictions against ex parte communications, which shall govern the Copy-right Royalty Judges and the proceedings under this chapter. (i) Removal or Sanction.—The Librarian of Congress may sanction or remove a Copyright Royalty Judge for violation of the standards of conduct ad-opted under subsection (h), misconduct, neglect of duty, or any disqualifying physical or mental disability. Any sanction or removal may be made only after notice and opportunity for a hearing, but the Librarian of Congress may suspend the Copyright Royalty Judge during the pendency of such hearing. The Librar-ian shall appoint an interim Copyright Royalty Judge during the period of any such suspension.
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§ 803 · Proceedings of Copyright Royalty Judges4 (a) Proceedings.— (1) In general.—The Copyright Royalty Judges shall act in accordance with this title, and to the extent not inconsistent with this title, in accordance with subchapter II of chapter 5 of title 5, in carrying out the purposes set forth in section 801. The Copyright Royalty Judges shall act in accordance with regulations issued by the Copyright Royalty Judges and the Librarian of Congress, and on the basis of a written record, prior determinations and inter-pretations of the Copyright Royalty Tribunal, Librarian of Congress, the Reg-ister of Copyrights, copyright arbitration royalty panels (to the extent those determinations are not inconsistent with a decision of the Librarian of Con-gress or the Register of Copyrights), and the Copyright Royalty Judges (to the extent those determinations are not inconsistent with a decision of the Register of Copyrights that was timely delivered to the Copyright Royalty Judges pursuant to section 802(f)(1) (A) or (B), or with a decision of the Register of Copyrights pursuant to section 802(f)(1)(D)), under this chap-ter, and decisions of the court of appeals under this chapter before, on, or after the effective date of the Copyright Royalty and Distribution Reform Act of 2004. (2) Judges acting as panel and individually.—The Copyright Roy-alty Judges shall preside over hearings in proceedings under this chapter en banc. The Chief Copyright Royalty Judge may designate a Copyright Royalty Judge to preside individually over such collateral and administrative proceed-ings, and over such proceedings under paragraphs (1) through (5) of subsec-tion (b), as the Chief Judge considers appropriate. (3) Determinations.—Final determinations of the Copyright Royalty Judges in proceedings under this chapter shall be made by majority vote. A Copyright Royalty Judge dissenting from the majority on any determination under this chapter may issue his or her dissenting opinion, which shall be included with the determination. (b) Procedures.— (1) Initiation.— (A) Call for petitions to participate.—(i) The Copyright Royalty Judges shall cause to be published in the Federal Register notice of com-mencement of proceedings under this chapter, calling for the filing of peti-tions to participate in a proceeding under this chapter for the purpose of making the relevant determination under section 111, 112, 114, 115, 116, 118, 119, 1004, or 1007, as the case may be— (I) promptly upon a determination made under section 804(a); (II) by no later than January 5 of a year specified in paragraph (2) of section 804(b) for the commencement of proceedings;
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(III) by no later than January 5 of a year specified in subparagraph (A) or (B) of paragraph (3) of section 804(b) for the commencement of proceedings, or as otherwise provided in subparagraph (A) or (C) of such paragraph for the commencement of proceedings; (IV) as provided under section 804(b)(8); or (V) by no later than January 5 of a year specified in any other provi-sion of section 804(b) for the filing of petitions for the commencement of proceedings, if a petition has not been filed by that date, except that the publication of notice requirement shall not apply in the case of pro-ceedings under section 111 that are scheduled to commence in 2005. (ii) Petitions to participate shall be filed by no later than 30 days after publication of notice of commencement of a proceeding under clause (i), except that the Copyright Royalty Judges may, for substantial good cause shown and if there is no prejudice to the participants that have already filed petitions, accept late petitions to participate at any time up to the date that is 90 days before the date on which participants in the proceeding are to file their written direct statements. Notwithstanding the preceding sentence, petitioners whose petitions are filed more than 30 days after publication of notice of commencement of a proceeding are not eligible to object to a settlement reached during the voluntary negotiation period under para-graph (3), and any objection filed by such a petitioner shall not be taken into account by the Copyright Royalty Judges. (B) Petitions to participate.—Each petition to participate in a pro-ceeding shall describe the petitioner’s interest in the subject matter of the pro-ceeding. Parties with similar interests may file a single petition to participate. (2) Participation in general.—Subject to paragraph (4), a person may participate in a proceeding under this chapter, including through the submis-sion of briefs or other information, only if— (A) that person has filed a petition to participate in accordance with paragraph (1) (either individually or as a group under paragraph (1)(B)); (B) the Copyright Royalty Judges have not determined that the petition to participate is facially invalid; (C) the Copyright Royalty Judges have not determined, sua sponte or on the motion of another participant in the proceeding, that the person lacks a significant interest in the proceeding; and (D) the petition to participate is accompanied by either— (i) in a proceeding to determine royalty rates, a filing fee of $150; or (ii) in a proceeding to determine distribution of royalty fees— (I) a filing fee of $150; or (II) a statement that the petitioner (individually or as a group) will not seek a distribution of more than $1000, in which case the amount distributed to the petitioner shall not exceed $1000.
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(3) Voluntary negotiation period.— (A) Commencement of proceedings.— (i) Rate adjustment proceeding.—Promptly after the date for filing of petitions to participate in a proceeding, the Copyright Royalty Judges shall make available to all participants in the proceeding a list of such participants and shall initiate a voluntary negotiation period among the participants. (ii) Distribution proceeding.—Promptly after the date for filing of petitions to participate in a proceeding to determine the distribution of royalties, the Copyright Royalty Judges shall make available to all participants in the proceeding a list of such participants. The initiation of a voluntary negotiation period among the participants shall be set at a time determined by the Copyright Royalty Judges. (B) Length of proceedings.—The voluntary negotiation period ini-tiated under subparagraph (A) shall be 3 months. (C) Determination of subsequent proceedings.—At the close of the voluntary negotiation proceedings, the Copyright Royalty Judg-es shall, if further proceedings under this chapter are necessary, deter-mine w hether a nd t o w hat e xtent p aragraphs (4) a nd (5) w ill a pply t o t he parties. (4) Small claims procedure in distribution proceedings.— (A) In general.—If, in a proceeding under this chapter to determine the distribution of royalties, the contested amount of a claim is $10,000 or less, the Copyright Royalty Judges shall decide the controversy on the basis of the filing of the written direct statement by the participant, the response by any opposing participant, and 1 additional response by each such party. (B) Bad faith inflation of claim.—If the Copyright Royalty Judges determine that a participant asserts in bad faith an amount in controversy in excess of $10,000 for the purpose of avoiding a determination under the procedure set forth in subparagraph (A), the Copyright Royalty Judges shall impose a fine on that participant in an amount not to exceed the dif-ference between the actual amount distributed and the amount asserted by the participant. (5) Paper proceedings.—The Copyright Royalty Judges in proceedings under this chapter may decide, sua sponte or upon motion of a participant, to determine issues on the basis of the filing of the written direct statement by the participant, the response by any opposing participant, and one additional response by each such participant. Prior to making such decision to proceed on such a paper record only, the Copyright Royalty Judges shall offer to all parties to the proceeding the opportunity to comment on the decision. The procedure under this paragraph—
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(A) shall be applied in cases in which there is no genuine issue of mate-rial fact, there is no need for evidentiary hearings, and all participants in the proceeding agree in writing to the procedure; and (B) may be applied under such other circumstances as the Copyright Royalty Judges consider appropriate. (6) Regulations.— (A) In general.—The Copyright Royalty Judges may issue regulations to carry out their functions under this title. A ll regulations issued by the Copyright Royalty Judges are subject to the approval of the Librarian of Congress. Not later than 120 days after Copyright Royalty Judges or in-terim Copyright Royalty Judges, as the case may be, are first appointed after the enactment of the Copyright Royalty and Distribution Reform Act of 2004, such judges shall issue regulations to govern proceedings under this chapter. (B) Interim regulations.—Until regulations are adopted under sub-paragraph (A), the Copyright Royalty Judges shall apply the regulations in effect under this chapter on the day before the effective date of the Copy-right Royalty and Distribution Reform Act of 2004, to the extent such regu-lations are not inconsistent with this chapter, except that functions carried out under such regulations by the Librarian of Congress, the Register of Copyrights, or copyright arbitration royalty panels that, as of such date of enactment, are to be carried out by the Copyright Royalty Judges under this chapter, shall be carried out by the Copyright Royalty Judges under such regulations. (C) Requirements.—Regulations issued under subparagraph (A) shall include the following: (i) The written direct statements and written rebuttal statements of all participants in a proceeding under paragraph (2) shall be filed by a date specified by the Copyright Royalty Judges, which, in the case of written direct statements, may be not earlier than 4 months, and not later than 5 months, after the end of the voluntary negotiation period under para-graph (3). Notwithstanding the preceding sentence, the Copyright Roy-alty Judges may allow a participant in a proceeding to file an amended written direct statement based on new information received during the discovery process, within 15 days after the end of the discovery period specified in clause (iv). (ii)(I) Following the submission to the Copyright Royalty Judges of written direct statements and written rebuttal statements by the par-ticipants in a proceeding under paragraph (2), the Copyright Royalty Judges, after taking into consideration the views of the participants in the proceeding, shall determine a schedule for conducting and complet-ing discovery.
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(II) In this chapter, the term “written direct statements” means wit-ness s tatements, testimony, and e xhibits t o b e p resented i n t he p roceed-ings, and such other information that is necessary to establish terms and rates, or the distribution of royalty payments, as the case may be, as set forth in regulations issued by the Copyright Royalty Judges. (iii) Hearsay may be admitted in proceedings under this chapter to the extent deemed appropriate by the Copyright Royalty Judges. (iv) Discovery in connection with written direct statements shall be permitted for a period of 60 days, except for discovery ordered by the Copyright Royalty Judges in connection with the resolution of motions, orders, and disputes pending at the end of such period. The Copyright Royalty Judges may order a discovery schedule in connection with writ-ten rebuttal statements. (v) Any participant under paragraph (2) in a proceeding under this chapter to determine royalty rates may request of an opposing par-ticipant nonprivileged documents directly related to the written di-rect statement or written rebuttal statement of that participant. Any objection to such a request shall be resolved by a motion or request to compel production made to the Copyright Royalty Judges in ac-cordance with regulations adopted by the Copyright Royalty Judges. Each motion or request to compel discovery shall be determined by the Copyright Royalty Judges, or by a Copyright Royalty Judge when permitted under subsection (a)(2). Upon such motion, the Copyright Royalty Judges may order discovery pursuant to regulations established under this paragraph. (vi)(I) Any participant under paragraph (2) in a proceeding un-der this chapter to determine royalty rates may, by means of written motion or on the record, request of an opposing participant or wit-ness other relevant information and materials if, absent the discovery sought, the Copyright Royalty Judges’ resolution of the proceeding would be substantially impaired. In determining whether discovery will be granted under this clause, the Copyright Royalty Judges may consider— (aa) whether the burden or expense of producing the requested information or materials outweighs the likely benefit, taking into ac-count the needs and resources of the participants, the importance of the issues at stake, and the probative value of the requested informa-tion or materials in resolving such issues; (bb) whether the requested information or materials would be unreasonably cumulative or duplicative, or are obtainable from an-other source that is more convenient, less burdensome, or less expen-sive; and
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(cc) whether the participant seeking discovery has had ample op-portunity by discovery in the proceeding or by other means to obtain the information sought. (II) This clause shall not apply to any proceeding scheduled to com-mence after December 31, 2010. (vii) In a proceeding under this chapter to determine royalty rates, the participants entitled to receive royalties shall collectively be permitted to take no more than 10 depositions and secure responses to no more than 25 interrogatories, and the participants obligated to pay royalties shall collectively be permitted to take no more than 10 depositions and secure responses to no more than 25 interrogatories. The Copyright Royalty Judges shall resolve any disputes among similarly aligned participants to allocate the number of depositions or interrogatories permitted under this clause. (viii) The rules and practices in effect on the day before the effective date of the Copyright Royalty and Distribution Reform Act of 2004, relating to discovery in proceedings under this chapter to determine the distribution of royalty fees, shall continue to apply to such proceedings on and after such effective date. (ix) In proceedings to determine royalty rates, the Copyright Roy-alty Judges may issue a subpoena commanding a participant or witness to appear and give testimony, or to produce and permit inspection of documents or tangible things, if the Copyright Royalty Judges’ resolu-tion of the proceeding would be substantially impaired by the absence of such testimony or production of documents or tangible things. Such subpoena shall specify with reasonable particularity the materials to be produced or the scope and nature of the required testimony. Nothing in this clause shall preclude the Copyright Royalty Judges from request-ing the production by a nonparticipant of information or materials relevant to the resolution by the Copyright Royalty Judges of a material issue of fact. (x) The Copyright Royalty Judges shall order a settlement conference among the participants in the proceeding to facilitate the presentation of offers of settlement among the participants. The settlement confer-ence shall be held during a 21-day period following the 60-day discovery period specified in clause (iv) and shall take place outside the presence of the Copyright Royalty Judges. (xi) No evidence, including exhibits, may be submitted in the written direct statement or written rebuttal statement of a participant without a sponsoring witness, except where the Copyright Royalty Judges have taken official notice, or in the case of incorporation by reference of past records, or for good cause shown.
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(c) Determination of Copyright Royalty Judges.— (1) Timing.—The Copyright Royalty Judges shall issue their determination in a proceeding not later than 11 months after the conclusion of the 21-day settlement conference period under subsection (b)(6)(C)(x), but, in the case of a proceeding to determine successors to rates or terms that expire on a specified date, in no event later than 15 days before the expiration of the then current statutory rates and terms. (2) Rehearings.— (A) In general.—The Copyright Royalty Judges may, in exceptional cases, upon motion of a participant in a proceeding under subsection (b)(2), order a rehearing, after the determination in the proceeding is issued under paragraph (1), on such matters as the Copyright Royalty Judges determine to be appropriate. (B) Timing for filing motion.—Any motion for a rehearing under subparagraph (A) may only be filed within 15 days after the date on which the Copyright Royalty Judges deliver to the participants in the proceeding their initial determination. (C) Participation by opposing party not required.—In any case in which a rehearing is ordered, any opposing party shall not be required to participate in the rehearing, except that nonparticipation may give rise to the limitations with respect to judicial review provided for in subsection (d)(1). (D) No negative inference.—No negative inference shall be drawn from lack of participation in a rehearing. (E) Continuity of rates and terms.—(i) If the decision of the Copyright Royalty Judges on any motion for a rehearing is not rendered before the expiration of the statutory rates and terms that were previously in effect, in the case of a proceeding to determine successors to rates and terms that expire on a specified date, then— (I) the initial determination of the Copyright Royalty Judges that is the subject of the rehearing motion shall be effective as of the day fol-lowing the date on which the rates and terms that were previously in effect expire; and (II) in the case of a proceeding under section 114(f)(1)(C) or 114(f)(2)(C), royalty rates and terms shall, for purposes of section 114(f)(4)(B), be deemed to have been set at those rates and terms con-tained in the initial determination of the Copyright Royalty Judges that is the subject of the rehearing motion, as of the date of that determination. (ii) The pendency of a motion for a rehearing under this paragraph shall not relieve persons obligated to make royalty payments who would be af-fected by the determination on that motion from providing the statements
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of account and any reports of use, to the extent required, and paying the royalties required under the relevant determination or regulations. (iii) Notwithstanding clause (ii), whenever royalties described in clause (ii) are paid to a person other than the Copyright Office, the entity desig-nated by the Copyright Royalty Judges to which such royalties are paid by the copyright user (and any successor thereto) shall, within 60 days after the motion for rehearing is resolved or, if the motion is granted, within 60 days after the rehearing is concluded, return any excess amounts previously paid to the extent necessary to comply with the final determination of roy-alty rates by the Copyright Royalty Judges. Any underpayment of royalties resulting from a rehearing shall be paid within the same period. (3) Contents of determination.—A determination of the Copyright Royalty Judges shall be supported by the written record and shall set forth the findings of fact relied on by the Copyright Royalty Judges. Among other terms adopted in a determination, the Copyright Royalty Judges may specify notice and recordkeeping requirements of users of the copyrights at issue that apply in lieu of those that would otherwise apply under regulations. (4) Continuing jurisdiction.—The Copyright Royalty Judges may issue an amendment to a written determination to correct any technical or clerical errors in the determination or to modify the terms, but not the rates, of royalty payments in response to unforeseen circumstances that would frus-trate the proper implementation of such determination. Such amendment shall be set forth in a written addendum to the determination that shall be distributed to the participants of the proceeding and shall be published in the Federal Register. (5) Protective order.—The Copyright Royalty Judges may issue such orders as may be appropriate to protect confidential information, including orders excluding confidential information from the record of the determina-tion that is published or made available to the public, except that any terms or rates of royalty payments or distributions may not be excluded. (6) Publication of determination.—By no later than the end of the 60-day period provided in section 802(f)(1)(D), the Librarian of Congress shall cause the determination, and any corrections thereto, to be published in the Federal Register. The Librarian of Congress shall also publicize the de-termination and corrections in such other manner as the Librarian considers appropriate, including, but not limited to, publication on the Internet. The Librarian of Congress shall also make the determination, corrections, and the accompanying record available for public inspection and copying. (7) Late payment.—A determination of the Copyright Royalty Judges may include terms with respect to late payment, but in no way shall such terms prevent the copyright holder from asserting other rights or remedies provided under this title.
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(d) Judicial Review.— (1) Appeal.—Any determination of the Copyright Royalty Judges under subsection (c) may, within 30 days after the publication of the determina-tion in the Federal Register, be appealed, to the United States Court of Ap-peals for the District of Columbia Circuit, by any aggrieved participant in the proceeding under subsection (b)(2) who fully participated in the proceeding and who would be bound by the determination. Any participant that did not participate in a rehearing may not raise any issue that was the subject of that rehearing at any stage of judicial review of the hearing determination. If no appeal is brought within that 30-day period, the determination of the Copyright Royalty Judges shall be final, and the royalty fee or determination with respect to the distribution of fees, as the case may be, shall take effect as set forth in paragraph (2). (2) Effect of rates.— (A) Expiration on specified date.—When this title provides that the royalty rates and terms that were previously in effect are to expire on a specified date, any adjustment or determination by the Copyright Royalty Judges of successor rates and terms for an ensuing statutory license period shall be effective as of the day following the date of expiration of the rates and terms that were previously in effect, even if the determination of the Copyright Royalty Judges is rendered on a later date. A licensee shall be obligated to continue making payments under the rates and terms previ-ously in effect until such time as rates and terms for the successor period are established. Whenever royalties pursuant to this section are paid to a person other than the Copyright Office, the entity designated by the Copyright Royalty Judges to which such royalties are paid by the copyright user (and any successor thereto) shall, within 60 days after the final determination of the Copyright Royalty Judges establishing rates and terms for a successor period or the exhaustion of all rehearings or appeals of such determination, if any, return any excess amounts previously paid to the extent necessary to comply with the final determination of royalty rates. Any underpayment of royalties by a copyright user shall be paid to the entity designated by the Copyright Royalty Judges within the same period. (B) Other cases.—In cases where rates and terms have not, prior to the inception of an activity, been established for that particular activity under the relevant license, such rates and terms shall be retroactive to the inception of activity under the relevant license covered by such rates and terms. In other cases where rates and terms do not expire on a specified date, successor rates and terms shall take effect on the first day of the sec-ond month that begins after the publication of the determination of the Copyright Royalty Judges in the Federal Register, except as otherwise pro-vided in this title, or by the Copyright Royalty Judges, or as agreed by the
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Proceedings by Copyright Royalty Judges § 0
participants in a proceeding that would be bound by the rates and terms. Except as otherwise provided in this title, the rates and terms, to the ex-tent applicable, shall remain in effect until such successor rates and terms become effective. (C) Obligation to make payments.— (i) The pendency of an appeal under this subsection shall not relieve persons obligated to make royalty payments under section 111, 112, 114, 115, 116, 118, 119, or 1003, who would be affected by the determination on appeal, from– (I) providing the applicable statements of account and report of use; and (II) paying the royalties required under the relevant determination or regulations. (ii) Notwithstanding clause (i), whenever royalties described in clause (i) are paid to a person other than the Copyright Office, the entity designated by the Copyright Royalty Judges to which such royalties are paid by the copyright user (and any successor thereto) shall, within 60 days after the final resolution of the appeal, return any excess amounts previously paid (and interest thereon, if ordered pursuant to paragraph (3)) to the extent necessary to comply with the final determination of royalty rates on ap-peal. Any underpayment of royalties resulting from an appeal (and interest thereon, if ordered pursuant to paragraph (3)) shall be paid within the same period. (3) Jurisdiction of court.—Section 706 of title 5 shall apply with respect to review by the court of appeals under this subsection. If the court modifies or vacates a determination of the Copyright Royalty Judges, the court may enter its own determination with respect to the amount or distribution of royalty fees and costs, and order the repayment of any excess fees, the payment of any underpaid fees, and the payment of interest pertaining respectively thereto, in accordance with its final judgment. The court may also vacate the determina-tion of the Copyright Royalty Judges and remand the case to the Copyright Royalty Judges for further proceedings in accordance with subsection (a). (e) Administrative Matters.— (1) Deduction of costs of Library of Congress and Copyright Office from filing fees.— (A) Deduction from filing fees.—The Librarian of Congress may, to the extent not otherwise provided under this title, deduct from the filing fees collected under subsection (b) for a particular proceeding under this chapter the reasonable costs incurred by the Librarian of Congress, the Copyright Office, and the Copyright Royalty Judges in conducting that proceeding, other than the salaries of the Copyright Royalty Judges and the 3 staff members appointed under section 802(b).
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§ 0 Proceedings by Copyright Royalty Judges
(B) Authorization of appropriations.—There are authorized to be appropriated such sums as may be necessary to pay the costs incurred under this chapter not covered by the filing fees collected under subsection (b). All funds made available pursuant to this subparagraph shall remain available until expended. (2) Positions required for administration of compulsory li-censing.—Section 307 of the Legislative Branch Appropriations Act, 1994, shall not apply to employee positions in the Library of Congress that are re-quired to be filled in order to carry out section 111, 112, 114, 115, 116, 118, or 119 or chapter 10. § 804 · Institution of proceedings5 (a) Filing of Petition.—With respect to proceedings referred to in para-graphs (1) and (2) of section 801(b) concerning the determination or adjustment of royalty rates as provided in sections 111, 112, 114, 115, 116, 118, 119, and 1004, during the calendar years specified in the schedule set forth in subsection (b), any owner or user of a copyrighted work whose royalty rates are specified by this title, or are established under this chapter before or after the enactment of the Copy-right Royalty and Distribution Reform Act of 2004, may file a petition with the Copyright Royalty Judges declaring that the petitioner requests a determination or adjustment of the rate. The Copyright Royalty Judges shall make a determina-tion as to whether the petitioner has such a significant interest in the royalty rate in which a determination or adjustment is requested. If the Copyright Royalty Judges determine that the petitioner has such a significant interest, the Copyright Royalty Judges shall cause notice of this determination, with the reasons for such determination, to be published in the Federal Register, together with the notice of commencement of proceedings under this chapter. With respect to proceedings under paragraph (1) of section 801(b) concerning the determination or adjust-ment of royalty rates as provided in sections 112 and 114, during the calendar years specified in the schedule set forth in subsection (b), the Copyright Royalty Judges shall cause notice of commencement of proceedings under this chapter to be published in the Federal Register as provided in section 803(b)(1)(A). (b) Timing of Proceedings.— (1) Section 111 proceedings.—(A) A petition described in subsection (a) to initiate proceedings under section 801(b)(2) concerning the adjustment of royalty rates under section 111 to which subparagraph (A) or (D) of section 801(b)(2) applies may be filed during the year 2005 and in each subsequent fifth calendar year. (B) In order to initiate proceedings under section 801(b)(2) concerning the adjustment of royalty rates under section 111 to which subparagraph (B) or (C)
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of section 801(b)(2) applies, within 12 months after an event described in either of those subsections, any owner or user of a copyrighted work whose royalty rates are specified by section 111, or by a rate established under this chapter be-fore or after the enactment of the Copyright Royalty and Distribution Reform Act of 2004, may file a petition with the Copyright Royalty Judges declaring that the petitioner requests an adjustment of the rate. The Copyright Royalty Judges shall then proceed as set forth in subsection (a) of this section. Any change in royalty rates made under this chapter pursuant to this subparagraph may be reconsidered in the year 2005, and each fifth calendar year thereafter, in accordance with the provisions in section 801(b)(2) (B) or (C), as the case may be. A petition for adjustment of rates established by section 111(d)(1)(B) as a result of a change in the rules and regulations of the Federal Communications Commission shall set forth the change on which the petition is based. (C) Any adjustment of royalty rates under section 111 shall take effect as of the first accounting period commencing after the publication of the deter-mination of the Copyright Royalty Judges in the Federal Register, or on such other date as is specified in that determination. (2) Certain section 112 proceedings.—Proceedings under this chapter shall be commenced in the year 2007 to determine reasonable terms and rates of royalty payments for the activities described in section 112(e)(1) relating to the limitation on exclusive rights specified by section 114(d)(1)(C)(iv), to be-come effective on January 1, 2009. Such proceedings shall be repeated in each subsequent fifth calendar year. (3) Section 114 and corresponding 112 proceedings.— (A) For eligible nonsubscription services and new subscription
services.—Proceedings under this chapter shall be commenced as soon as practicable after the date of enactment of the Copyright Royalty and Distribution Reform Act of 2004 to determine reasonable terms and rates of royalty payments under sections 114 and 112 for the activities of eli-gible nonsubscription transmission services and new subscription services, to be effective for the period beginning on January 1, 2006, and ending on December 31, 2010. Such proceedings shall next be commenced in Janu-ary 2009 to determine reasonable terms and rates of royalty payments, to become effective on January 1, 2011. Thereafter, such proceedings shall be repeated in each subsequent fifth calendar year. (B) For preexisting subscription and satellite digital audio radio services.—Proceedings under this chapter shall be commenced in January 2006 to determine reasonable terms and rates of royalty payments under sections 114 and 112 for the activities of preexisting subscription services, to be effective during the period beginning on January 1, 2008, and ending on December 31, 2012, and preexisting satellite digital audio radio services, to be effective during the period beginning on January 1, Copyright Law of the United States 01
§ 0 Proceedings by Copyright Royalty Judges
2007, and ending on December 31, 2012. Such proceedings shall next be commenced in 2011 to determine reasonable terms and rates of royalty pay-ments, to become effective on January 1, 2013. Thereafter, such proceedings shall be repeated in each subsequent fifth calendar year. (C)(i) Notwithstanding any other provision of this chapter, this subpara-graph shall govern proceedings commenced pursuant to section 114(f)(1)(C) and 114(f)(2)(C) concerning new types of services. (ii) Not later than 30 days after a petition to determine rates and terms for a new type of service is filed by any copyright owner of sound record-ings, or such new type of service, indicating that such new type of service is or is about to become operational, the Copyright Royalty Judges shall issue a notice for a proceeding to determine rates and terms for such service. (iii) The proceeding shall follow the schedule set forth in subsections (b), (c), and (d) of section 803, except that— (I) the determination shall be issued by not later than 24 months after the publication of the notice under clause (ii); and (II) the decision shall take effect as provided in subsections (c)(2) and (d)(2) of section 803 and section 114(f)(4)(B)(ii) and (C). (iv) The rates and terms shall remain in effect for the period set forth in section 114(f)(1)(C) or 114(f)(2)(C), as the case may be. (4) Section 115 proceedings.—A petition described in subsection (a) to initiate proceedings under section 801(b)(1) concerning the adjustment or determination of royalty rates as provided in section 115 may be filed in the year 2006 and in each subsequent fifth calendar year, or at such other times as the parties have agreed under section 115(c)(3) (B) and (C). (5) Section 116 proceedings.—(A) A petition described in subsection (a) to initiate proceedings under section 801(b) concerning the determination of royalty rates and terms as provided in section 116 may be filed at any time within 1 year after negotiated licenses authorized by section 116 are terminated or expire and are not replaced by subsequent agreements. (B) If a negotiated license authorized by section 116 is terminated or expires and is not replaced by another such license agreement which provides per-mission to use a quantity of musical works not substantially smaller than the quantity of such works performed on coin-operated phonorecord players dur-ing the 1-year period ending March 1, 1989, the Copyright Royalty Judges shall, upon petition filed under paragraph (1) within 1 year after such termination or expiration, commence a proceeding to promptly establish an interim royalty rate or rates for the public performance by means of a coin-operated phono-record player of nondramatic musical works embodied in phonorecords which had been subject to the terminated or expired negotiated license agreement. Such rate or rates shall be the same as the last such rate or rates and shall remain in force until the conclusion of proceedings by the Copyright Royalty
0 Copyright Law of the United States
Proceedings by Copyright Royalty Judges Endnotes
Judges, in accordance with section 803, to adjust the royalty rates applicable to such works, or until superseded by a new negotiated license agreement, as provided in section 116(b). (6) Section 118 proceedings.—A petition described in subsection (a) to initiate proceedings under section 801(b)(1) concerning the determination of reasonable terms and rates of royalty payments as provided in section 118 may be filed in the year 2006 and in each subsequent fifth calendar year. (7) Section 1004 proceedings.—A petition described in subsection (a) to initiate proceedings under section 801(b)(1) concerning the adjustment of reasonable royalty rates under section 1004 may be filed as provided in sec-tion 1004(a)(3). (8) Proceedings concerning distribution of royalty fees.—With respect to proceedings under section 801(b)(3) concerning the distribution of royalty fees in certain circumstances under section 111, 119, or 1007, the Copy-right Royalty Judges shall, upon a determination that a controversy exists concerning such distribution, cause to be published in the Federal Register notice of commencement of proceedings under this chapter. § 805 · General rule for voluntarily negotiated agreements Any rates or terms under this title that— (1) are agreed to by participants to a proceeding under section 803(b)(3), (2) are adopted by the Copyright Royalty Judges as part of a determination under this chapter, and (3) are in effect for a period shorter than would otherwise apply under a determination pursuant to this chapter, shall remain in effect for such period of time as would otherwise apply under such determination, except that the Copyright Royalty Judges shall adjust the rates pursuant to the voluntary negotiations to reflect national monetary infla-tion during the additional period the rates remain in effect. Chapter 8 · Endnotes 1. The Copyright Royalty and Distribution Reform Act of 2004 amended chapter 8 in its entirety. Pub. L. No. 108-419, 118 Stat. 2341. In 2006, the Copyright Royalty Judges Program Technical Corrections Act amended chapter 8 throughout. Pub. L. No. 109-303, 120 Stat. 1478. Section 6 of that Act states, “Ex-cept as provided under subsection (b), this Act and the amendments made by this Act shall be effective as if included in the Copyright Royalty and Distribution Reform Act of 2004.” Id. at 1483.
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Endnotes Proceedings by Copyright Royalty Judges
2. In 2006, the Copyright Royalty Judges Program Technical Corrections Act amended section 801 by inserting a comma after “119” in the first sentence of subsection (b)(1) and by adding a new subsection (f) at the end. Pub. L. No. 109-303, 120 Stat. 1478. It also amended the language in 803(b)(3)(C) that preceded (i) and substituted “the” for “such” in (i). Id. at 1483. 3. In 2006, the Copyright Royalty Judges Program Technical Corrections Act amended 802(f)(1)(A)(i) by substituting “subparagraph (B) and clause (ii) of this subparagraph” for “clause (ii) of this subparagraph and subparagraph (B),”; by amending (f)(1)(A)(ii) in its en-tirety; and by inserting a comma after “undertakes to consult with” in the seventh sentence of (f)(1)(D). Pub. L. No. 109-303, 120 Stat. 1478-79. 4. The Satellite Home Viewer Extension and Reauthorization Act of 2004 amended sec-tion 803(b)(1)(A)(i)(V) by inserting at the end, “except that in the case of proceedings under section 111 that are scheduled to commence in 2005, such notice may not be published.” Pub. L. No. 108-447, 118 Stat. 2809, 3393, 3409. In 2006, the Copyright Royalty Judges Program Technical Corrections Act amended paragraph 803(a)(1) by inserting a new sentence at the beginning and by amending the second sentence. Pub. L. No. 109-303, 120 Stat. 1478, 1479. It amended (b)(1)(A)(i)(V) by inserting “the publication of notice requirement shall not apply” prior to “in the case of ” and deleting from the end of the sentence “such notice may not be published.” Id. It amended (b)(2)(A) by deleting from the end “together with a filing fee of $150” and by adding a new clause (D). Id. at 1479-80. It amended (b)(3)(A) by changing the heading and adding the text for (ii). Id. at 1480. It amended (b)(4)(A) by deleting the last sentence. Id. It amended the first sentence of (b)(6)(C)(i) by inserting “and written rebuttal statements” after “direct statements” and inserting “in the case of written direct statements” after “Copyright Royalty Judge.” Id. It entirely amended (b)(6)(C)(ii)(I), iv, and x. Id. It amended (c)(2)(B) by deleting “concerning rates and terms” at the end of the sentence; (c)(4) by deleting “with the approval of the Register of Copyrights” in the first sentence after “Copyright Royalty Judges;” and (c)(7) by making a technical correction to add “the” before “Copyright Royalty Judges.” Id. It amended (d)(2)C)(i)(I) by inserting “applicable” before “statements of account” and deleting “any” before “reports of use.” Id. at 1481. It amended (d)(3) by inserting a new sentence at the beginning and by deleting “pursuant to section 706 of title 5” at the beginning of what was previously the first sentence, now the second sentence. Id. 5. In 2006, the Copyright Royalty Judges Program Technical Corrections Act amended paragraph 804(b)(1)(B) by substituting “801(b)(2)(B) or (C)” for “801(b)(3)(B) or (C)” in the third sentence. Pub. L. No. 109-303, 120 Stat. 1478, 1481. It amended (b)(3)(A) by substituting “date of enactment” for “effective date” and (b)(3)(C)(i) and (ii) by making technical correc-tions to correct grammatical errors. Id.
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Chapter 9 1
Protection of Semiconductor Chip Products
section page 901 Definitions .......................................................... 206
� 902 Subject matter of protection . ....................................... .. 207
� 903 Ownership, transfer, licensing, and recordation2 . . . . . . . . . . . . . . . . . . . . . 208
� 904 Duration of protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
� 905 Exclusive rights in mask works ...................................... 209
� 906 Limitation on exclusive rights: reverse engineering;
first sale ............................................................. 209
� 907 Limitation on exclusive rights: innocent infringement .............. 209
� 908 Registration of claims of protection .................................. 210
� 909 Mask work notice .................................................... 211
� 910 Enforcement of exclusive rights ...................................... 212
� 911 Civil actions ......................................................... 213
� 912 Relation to other laws ................................................ 214
� 913 Transitional provisions .............................................. 215
� 914 International transitional provisions ................................ 216
�
§ 01 Protection of Semiconductor Chip Products
§ 901 · Definitions (a) As used in this chapter— (1) a “semiconductor chip product” is the final or intermediate form of any product— (A) having two or more layers of metallic, insulating, or semiconductor material, deposited or otherwise placed on, or etched away or otherwise removed from, a piece of semiconductor material in accordance with a pre-determined pattern; and (B) intended to perform electronic circuitry functions; (2) a “mask work” is a series of related images, however fixed or encoded— (A) having or representing the predetermined, three-dimensional pat-tern of metallic, insulating, or semiconductor material present or removed from the layers of a semiconductor chip product; and (B) in which series the relation of the images to one another is that each image has the pattern of the surface of one form of the semiconductor chip product; (3) a mask work is “fixed” in a semiconductor chip product when its em-bodiment in the product is sufficiently permanent or stable to permit the mask work to be perceived or reproduced from the product for a period of more than transitory duration; (4) to “distribute” means to sell, or to lease, bail, or otherwise transfer, or to offer to sell, lease, bail, or otherwise transfer; (5) to “commercially e xploit” a m ask w ork is to distribute to the public for commercial purposes a semiconductor chip product embodying the mask work; except that such term includes an offer to sell or transfer a semiconduc-tor chip product only when the offer is in writing and occurs after the mask work is fixed in the semiconductor chip product; (6) the “owner” of a mask work is the person who created the mask work, the legal representative of that person if that person is deceased or under a legal incapacity, or a party to whom all the rights under this chapter of such person or representative are transferred in accordance with section 903(b); except that, in the case of a work made within the scope of a person’s em-ployment, the owner is the employer for whom the person created the mask work or a party to whom all the rights under this chapter of the employer are transferred in accordance with section 903(b); (7) an “ innocent purchaser” is a person who purchases a semiconductor chip product in good faith and without having notice of protection with re-spect to the semiconductor chip product; (8) having “notice of protection” means having actual knowledge that, or reasonable grounds to believe that, a mask work is protected under this chap-ter; and
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(9) an “infringing semiconductor chip product” is a semiconductor chip product which is made, imported, or distributed in violation of the exclusive rights of the owner of a mask work under this chapter. (b) For purposes of this chapter, the distribution or importation of a product incorporating a semiconductor chip product as a part thereof is a distribution or importation of that semiconductor chip product. § 902 · Subject matter of protection3 (a)(1) Subject to the provisions of subsection (b), a mask work fixed in a semi-conductor chip product, by or under the authority of the owner of the mask work, is eligible for protection under this chapter if— (A) on the date on which the mask work is registered under section 908, or is first commercially exploited anywhere in the world, whichever occurs first, the owner of the mask work is (i) a national or domiciliary of the United States, (ii) a national, domiciliary, or sovereign authority of a for-eign nation that is a party to a treaty affording protection to mask works to which the United States is also a party, or (iii) a stateless person, wherever that person may be domiciled; (B) the mask work is first commercially exploited in the United States; or (C) the mask work comes within the scope of a Presidential proclama-tion issued under paragraph (2). (2) Whenever the President finds that a foreign nation extends, to mask works of owners who are nationals or domiciliaries of the United States pro-tection (A) on substantially the same basis as that on which the foreign nation extends protection to mask works of its own nationals and domiciliaries and mask works first commercially exploited in that nation, or (B) on substantially the same basis as provided in this chapter, the President may by proclamation extend protection under this chapter to mask works (i) of owners who are, on the date on which the mask works are registered under section 908, or the date on which the mask works are first commercially exploited anywhere in the world, whichever occurs first, nationals, domiciliaries, or sovereign au-thorities of that nation, or (ii) which are first commercially exploited in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection extended under any such proclamation. (b) Protection under this chapter shall not be available for a mask work that— (1) is not original; or (2) consists of designs that are staple, commonplace, or familiar in the semi-conductor industry, or variations of such designs, combined in a way that, considered as a whole, is not original.
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§ 0 Protection of Semiconductor Chip Products
(c) In no case does protection under this chapter for a mask work extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. § 903 · Ownership, transfer, licensing, and recordation (a) The exclusive rights in a mask work subject to protection under this chapter belong to the owner of the mask work. (b) The owner of the exclusive rights in a mask work may transfer all of those rights, or license all or less than all of those rights, by any written instrument signed by such owner or a duly authorized agent of the owner. Such rights may be transferred or licensed by operation of law, may be bequeathed by will, and may pass as personal property by the applicable laws of intestate succession. (c)(1) Any document pertaining to a mask work may be recorded in the Copy-right Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. The Register of Copy-rights shall, upon receipt of the document and the fee specified pursuant to sec-tion 908(d), record the document and return it with a certificate of recordation. The recordation of any transfer or license under this paragraph gives all persons constructive notice of the facts stated in the recorded document concerning the transfer or license. (2) In any case in which conflicting transfers of the exclusive rights in a mask work are made, the transfer first executed shall be void as against a subsequent transfer which is made for a valuable consideration and without notice of the first transfer, unless the first transfer is recorded in accordance with paragraph (1) within three months after the date on which it is executed, but in no case later than the day before the date of such subsequent transfer. (d) Mask works prepared by an officer or employee of the United States Govern-ment as part of that person’s official duties are not protected under this chapter, but the United States Government is not precluded from receiving and holding exclu-sive rights in mask works transferred to the Government under subsection (b). § 904 · Duration of protection (a) The protection provided for a mask work under this chapter shall com-mence on the date on which the mask work is registered under section 908, or the date on which the mask work is first commercially exploited anywhere in the world, whichever occurs first.
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Protection of Semiconductor Chip Products § 0
(b) Subject to subsection (c) and the provisions of this chapter, the protection provided under this chapter to a mask work shall end ten years after the date on which such protection commences under subsection (a). (c) All terms of protection provided in this section shall run to the end of the calendar year in which they would otherwise expire. § 905 · Exclusive rights in mask works The owner of a mask work provided protection under this chapter has the exclusive rights to do and to authorize any of the following: (1) to reproduce the mask work by optical, electronic, or any other means; (2) to import or distribute a semiconductor chip product in which the mask work is embodied; and (3) to induce or knowingly to cause another person to do any of the acts described in paragraphs (1) and (2). § 906 · Limitation on exclusive rights: reverse engineering; first sale (a) Notwithstanding the provisions of section 905, it is not an infringement of the exclusive rights of the owner of a mask work for— (1) a person to reproduce the mask work solely for the purpose of teaching, analyzing, or evaluating the concepts or techniques embodied in the mask work or the circuitry, logic flow, or organization of components used in the mask work; or (2) a person who performs the analysis or evaluation described in para-graph (1) to incorporate the results of such conduct in an original mask work which is made to be distributed. (b) Notwithstanding the provisions of section 905(2), the owner of a particular semiconductor chip product made by the owner of the mask work, or by any person authorized by the owner of the mask work, may import, distribute, or otherwise dispose of or use, but not reproduce, that particular semiconductor chip product without the authority of the owner of the mask work. § 907 · Limitation on exclusive rights: innocent infringement (a) Notwithstanding any other provision of this chapter, an innocent purchaser of an infringing semiconductor chip product—
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§ 0 Protection of Semiconductor Chip Products
(1) shall incur no liability under this chapter with respect to the importa-tion or distribution of units of the infringing semiconductor chip product that occurs before the innocent purchaser has notice of protection with respect to the mask work embodied in the semiconductor chip product; and (2) shall be liable only for a reasonable royalty on each unit of the infringing semiconductor chip product that the innocent purchaser imports or distrib-utes after having notice of protection with respect to the mask work embodied in the semiconductor chip product. (b) The amount of the royalty referred to in subsection (a)(2) shall be deter-mined by the court in a civil action for infringement unless the parties resolve the issue by voluntary negotiation, mediation, or binding arbitration. (c) The immunity of an innocent purchaser from liability referred to in subsec-tion (a)(1) and the limitation of remedies with respect to an innocent purchaser referred to in subsection (a)(2) shall extend to any person who directly or indirectly purchases an infringing semiconductor chip product from an innocent purchaser. (d) The provisions of subsections (a), (b), and (c) apply only with respect to those units of an infringing semiconductor chip product that an innocent pur-chaser purchased before having notice of protection with respect to the mask work embodied in the semiconductor chip product. § 908 · Registration of claims of protection (a) The owner of a mask work may apply to the Register of Copyrights for registration of a claim of protection in a mask work. Protection of a mask work under this chapter shall terminate if application for registration of a claim of protection in the mask work is not made as provided in this chapter within two years after the date on which the mask work is first commercially exploited any-where in the world. (b) The Register of Copyrights shall be responsible for all administrative func-tions and duties under this chapter. Except for section 708, the provisions of chap-ter 7 of this title relating to the general responsibilities, organization, regulatory authority, a ctions, r ecords, and publications of the Copyright Office shall apply to this chapter, except that the Register of Copyrights may make such changes as may be necessary in applying those provisions to this chapter. (c) The application for registration of a mask work shall be made on a form prescribed by the Register of Copyrights. Such form may require any information regarded by the Register as bearing upon the preparation or identification of the mask work, the existence or duration of protection of the mask work under this chapter, or ownership of the mask work. The application shall be accompanied by the fee set pursuant to subsection (d) and the identifying material specified pursuant to such subsection.
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Protection of Semiconductor Chip Products § 0
(d) The Register of Copyrights shall by regulation set reasonable fees for the filing of applications to register claims of protection in mask works under this chapter, and for other services relating to the administration of this chapter or the rights under this chapter, taking into consideration the cost of providing those services, the benefits of a public record, and statutory fee schedules under this title. T he Register shall also specify the identifying material to be deposited in connection with the claim for registration. (e) If the Register of Copyrights, after examining an application for regis-tration, determines, in accordance with the provisions of this chapter, that the application relates to a mask work which is entitled to protection under this chapter, then the Register shall register the claim of protection and issue to the applicant a certificate of registration of the claim of protection under the seal of the Copyright Office. The effective date of registration of a claim of protection shall be the date on which an application, deposit of identifying material, and fee, which are determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration of the claim, have all been received in the Copyright Office. (f) In any action for infringement under this chapter, the certificate of registra-tion of a mask work shall constitute prima facie evidence (1) of the facts stated in the certificate, and (2) that the applicant issued the certificate has met the require-ments of this chapter, and the regulations issued under this chapter, with respect to the registration of claims. (g) Any applicant for registration under this section who is dissatisfied with the refusal of the Register of Copyrights to issue a certificate of registration un-der this section may seek judicial review of that refusal by bringing an action for such review in an appropriate United States district court not later than sixty days after the refusal. The provisions of chapter 7 of title 5 shall apply to such judicial review. The failure of the Register of Copyrights to issue a certificate of registration within four months after an application for registration is filed shall be deemed to be a refusal to issue a certificate of registration for purposes of this subsection and section 910(b)(2), except that, upon a showing of good cause, the district court may shorten such four-month period. § 909 · Mask work notice4 (a) The owner of a mask work provided protection under this chapter may affix notice to the mask work, and to masks and semiconductor chip products embodying the mask work, in such manner and location as to give reasonable no-tice of such protection. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of notice for purposes of this section, but these specifications shall not be considered exhaustive. The
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§ 0 Protection of Semiconductor Chip Products
affixation of such notice is not a condition of protection under this chapter, but shall constitute prima facie evidence of notice of protection. (b) The notice referred to in subsection (a) shall consist of— (1) the words “mask work”, the symbol *M*, or the symbol μ (the letter M in a circle); and (2) the name of the owner or owners of the mask work or an abbreviation by which the name is recognized or is generally known. § 910 · Enforcement of exclusive rights5 (a) Except as otherwise provided in this chapter, any person who violates any of the exclusive rights of the owner of a mask work under this chapter, by conduct in or affecting commerce, shall be liable as an infringer of such rights. As used in this subsection, the term “any person” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity. (b)(1) The owner of a mask work protected under this chapter, or the exclusive licensee of all rights under this chapter with respect to the mask work, shall, after a certificate of registration of a claim of protection in that mask work has been is-sued under section 908, be entitled to institute a civil action for any infringement with respect to the mask work which is committed after the commencement of protection of the mask work under section 904(a). (2) In any case in which an application for registration of a claim of pro-tection in a mask work and the required deposit of identifying material and fee have been received in the Copyright Office in proper form and registra-tion of the mask work has been refused, the applicant is entitled to institute a civil action for infringement under this chapter with respect to the mask work if notice of the action, together with a copy of the complaint, is served on the Register of Copyrights, in accordance with the Federal Rules of Civil Procedure. The Register may, at his or her option, become a party to the ac-tion with respect to the issue of whether the claim of protection is eligible for registration by entering an appearance within sixty days after such service, but the failure of the Register to become a party to the action shall not de-prive the court of jurisdiction to determine that issue. (c)(1) 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 905 with respect to importation. These 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:
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Protection of Semiconductor Chip Products § 11
(A) Obtain a court order enjoining, or an order of the International Trade Commission under section 337 of the Tariff Act of 1930 excluding, importation of the articles. (B) Furnish proof that the mask work involved is protected under this chapter and that the importation of the articles would infringe the rights in the mask work under this chapter. (C) Post a surety bond for any injury that may result if the detention or exclusion of the articles proves to be unjustified. (2) Articles imported in violation of the rights set forth in section 905 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. § 911 · Civil actions6 (a) Any court having jurisdiction of a civil action arising under this chapter may grant temporary restraining orders, preliminary injunctions, and perma-nent injunctions on such terms as the court may deem reasonable to prevent or restrain infringement of the exclusive rights in a mask work under this chapter. (b) Upon finding an infringer liable, to a person entitled under section 910(b)(1) to institute a civil action, for an infringement of any exclusive right under this chapter, the court shall award such person actual damages suffered by the person as a result of the infringement. The court shall also award such person the infringer’s profits that are attributable to the infringement and are not taken into account in computing the award of actual damages. In estab-lishing the infringer’s profits, such person is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the mask work. (c) At any time before final judgment is rendered, a person entitled to institute a civil action for infringement may elect, instead of actual damages and profits as provided by subsection (b), an award of statutory damages for all infringe-ments involved in the action, with respect to any one mask work for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in an amount not more than $250,000 as the court considers just.
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§ 11 Protection of Semiconductor Chip Products
(d) An action for infringement under this chapter shall be barred unless the action is commenced within three years after the claim accrues. (e)(1) At any time while an action for infringement of the exclusive rights in a mask work under this chapter is pending, the court may order the impounding, on such terms as it may deem reasonable, of all semiconductor chip products, and any drawings, tapes, masks, or other products by means of which such products may be reproduced, that are claimed to have been made, imported, or used in violation of those exclusive rights. Insofar as practicable, applications for orders under this paragraph shall be heard and determined in the same manner as an application for a temporary restraining order or preliminary injunction. (2) As part of a final judgment or decree, the court may order the destruc-tion or other disposition of any infringing semiconductor chip products, and any masks, tapes, or other articles by means of which such products may be reproduced. (f) In any civil action arising under this chapter, the court in its discretion may allow the recovery of full costs, including reasonable attorneys’ fees, to the prevailing party. (g)(1) Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of the owner of a mask work under this chapter, or for any other violation under this chapter. (2) In a suit described in paragraph (1) for a violation described in that paragraph, remedies (including remedies both at law and in equity) are avail-able for the violation to the same extent as such remedies are available for such a violation in a suit against any public or private entity other than a State, instrumentality of a State, or officer or employee of a State acting in his or her official capacity. Such remedies include actual damages and profits under subsection (b), statutory damages under subsection (c), impounding and dis-position of infringing articles under subsection (e), and costs and attorney’s fees under subsection (f). § 912 · Relation to other laws7 (a) Nothing in this chapter shall affect any right or remedy held by any person under chapters 1 through 8 or 10 of this title, or under title 35. (b) Except as provided in section 908(b) of this title, references to “this title” or “title 17” in chapters 1 through 8 or 10 of this title shall be deemed not to apply to this chapter.
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(c) The provisions of this chapter shall preempt the laws of any State to the extent those laws provide any rights or remedies with respect to a mask work which are equivalent to those rights or remedies provided by this chapter, except that such preemption shall be effective only with respect to actions filed on or after January 1, 1986. (d) Notwithstanding subsection (c), nothing in this chapter shall detract from any rights of a mask work owner, w hether under Federal law (exclusive of this chapter) or under the common law or the statutes of a State, heretofore or hereafter declared or enacted, with respect to any mask work first commercially exploited before July 1, 1983. § 913 · Transitional provisions (a) No application for registration under section 908 may be filed, and no civil action under section 910 or other enforcement proceeding under this chap-ter may be instituted, until sixty days after the date of the enactment of this chapter. (b) No monetary relief under section 911 may be granted with respect to any conduct that occurred before the date of the enactment of this chapter, except as provided in subsection (d). (c) Subject to subsection (a), the provisions of this chapter apply to all mask works that are first commercially exploited or are registered under this chapter, or both, on or after the date of the enactment of this chapter. (d)(1) Subject to subsection (a), protection is available under this chapter to any mask work that was first commercially exploited on or after July 1, 1983, and be-fore the date of the enactment of this chapter, if a claim of protection in the mask work is registered in the Copyright Office before July 1, 1985, under section 908. (2) In the case of any mask work described in paragraph (1) that is provided protection under this chapter, infringing semiconductor chip product units manufactured before the date of the enactment of this chapter may, without liability under sections 910 and 911, be imported into or distributed in the United States, or both, until two years after the date of registration of the mask work under section 908, but only if the importer or distributor, as the case may be, first pays or offers to pay the reasonable royalty referred to in section 907(a)(2) to the mask work owner, on all such units imported or distributed, or both, after the date of the enactment of this chapter. (3) In the event that a person imports or distributes infringing semiconduc-tor chip product units described in paragraph (2) of this subsection without first paying or offering to pay the reasonable royalty specified in such para-graph, or if the person refuses or fails to make such payment, the mask work owner shall be entitled to the relief provided in sections 910 and 911.
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§ 1 Protection of Semiconductor Chip Products
§ 914 · International transitional provisions8 (a) Notwithstanding the conditions set forth in subparagraphs (A) and (C) of section 902(a)(1) with respect to the availability of protection under this chapter to nationals, domiciliaries, and sovereign authorities of a foreign nation, the Secretary of Commerce may, upon the petition of any person, or upon the Sec-retary’s own motion, issue an order extending protection under this chapter to such foreign nationals, domiciliaries, and sovereign authorities if the Secretary finds— (1) that the foreign nation is making good faith efforts and reasonable progress toward— (A) entering into a treaty described in section 902(a)(1)(A); or (B) enacting or implementing legislation that would be in compliance with subparagraph (A) or (B) of section 902(a)(2); and (2) that the nationals, domiciliaries, and sovereign authorities of the foreign nation, and persons controlled by them, are not engaged in the misappropria-tion, or unauthorized distribution or commercial exploitation, of mask works; and (3) that issuing the order would promote the purposes of this chapter and international comity with respect to the protection of mask works. (b) While an order under subsection (a) is in effect with respect to a foreign nation, no application for registration of a claim for protection in a mask work under this chapter may be denied solely because the owner of the mask work is a national, domiciliary, or sovereign authority of that foreign nation, or solely because the mask work was first commercially exploited in that foreign nation. (c) Any order issued by the Secretary of Commerce under subsection (a) shall be effective for such a period as the Secretary designates in the order, except that no such order may be effective after that date on which the authority of the Sec-retary of Commerce terminates under subsection (e). The effective date of any such order shall also be designated in the order. In the case of an order issued upon the petition of a person, such effective date may be no earlier than the date on which the Secretary receives such petition. (d)(1) Any order issued under this section shall terminate if— (A) the Secretary of Commerce finds that any of the conditions set forth in paragraphs (1), (2), and (3) of subsection (a) no longer exist; or (B) mask works of nationals, domiciliaries, and sovereign authorities of that foreign nation or mask works first commercially exploited in that foreign nation become eligible for protection under subparagraph (A) or (C) of section 902(a)(1). (2) Upon the termination or expiration of an order issued under this sec-tion, registrations of claims of protection in mask works made pursuant to that order shall remain valid for the period specified in section 904.
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Protection of Semiconductor Chip Products Endnotes
(e) The authority of the Secretary of Commerce under this section shall com-mence on the date of the enactment of this chapter, and shall terminate on July 1, 1995. (f) (1) The Secretary of Commerce shall promptly notify the Register of Copy-rights and the Committees on the Judiciary of the Senate and the House of Repre-sentatives of the issuance or termination of any order under this section, together with a statement of the reasons for such action. The Secretary shall also publish such notification and statement of reasons in the Federal Register. (2) Two years after the date of the enactment of this chapter, the Secre-tary of Commerce, in consultation with the Register of Copyrights, shall transmit to the Committees on the Judiciary of the Senate and the House of Representatives a report on the actions taken under this section and on the current status of international recognition of mask work protection. The report shall include such recommendation for modifications of the protec-tion accorded under this chapter to mask works owned by nationals, do-miciliaries, or sovereign authorities of foreign nations as the Secretary, in consultation with the Register of Copyrights, considers would promote the purposes of this chapter and international comity with respect to mask work protection. Not later than July 1, 1994, the Secretary of Commerce, in con-sultation with the Register of Copyrights, shall transmit to the Committees on the Judiciary of the Senate and the House of Representatives a report up-dating the matters contained in the report transmitted under the preceding sentence. Chapter 9 · Endnotes 1. In 1984, the Semiconductor Chip Protection Act amended title 17 of the United States Code to add a new chapter 9 entitled “Protection of Semiconductor Chip Products.” Pub. L. No. 98-620, 98 Stat. 3335, 3347. 2. In 1997, the heading for section 903 in the table of sections was amended by adding “, transfer, licensure, and recordation” at the end thereof, in lieu of “and transfer.” Pub. L. No. 105-80, 111 Stat. 1529, 1535. The Intellectual Property and High Technology Technical Amend-ments Act of 2002 amended the heading for section 903 in the table of sections for chapter 9 by substituting “licensing” for “licensure.” Pub. L. No. 107-273, 116 Stat. 1758, 1910. 3. In 1987, section 902 was amended by adding the last sentence in subsection (a)(2). Pub. L. No. 100-159, 101 Stat. 899, 900. 4. In 1997, section 909 was amended by correcting misspellings in subsection (b)(1). Pub. L. No. 105-80, 111 Stat. 1529, 1535. 5. In 1990, the Copyright Remedy Clarification Act amended section 910 by adding the last two sentences to subsection (a). Pub. L. No. 101-553, 104 Stat. 2749, 2750. In 1997, a tech-nical correction amended section 910(a) by capitalizing the first word of the second sentence. Pub. L. No. 105-80, 111 Stat. 1529 1535.
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Endnotes Protection of Semiconductor Chip Products
6. In 1990, the Copyright Remedy Clarification Act amended section 911 by adding sub-section (g). Pub. L. No. 101-553, 104 Stat. 2749, 2750. 7. In 1988, the Judicial Improvements and Access to Justice Act amended section 912 by de-leting subsection (d) and redesignating subsection (e) as subsection (d). Pub. L. No. 100-702, 102 Stat. 4642, 4672. The Audio Home Recording Act of 1 992 amended section 912 by insert-ing “or 10” after “8” in subsections (a) and (b). Pub. L. No. 102-563, 106 Stat. 4237, 4248. 8. In 1987, section 914 was amended in subsection (e) by inserting “on July 1, 1991” in lieu of “three years after such date of enactment” and by adding the last sentence to subsec-tion (f)(2). Pub. L. No. 100-159, 101 Stat. 899. The Semiconductor International Protection Extension Act of 1991 amended section 914 by inserting “or implementing” after “enacting” in the first sentence of subsection (a)(1)(B), by changing the date in subsection (e) to “July 1, 1995” and by changing the date in the last sentence of subsection (f)(2) to “July 1, 1994.” Pub. L. No. 102-64, 105 Stat. 320. On July 1, 1995, section 914 expired as required by subsection (e). It was rendered largely unnecessary upon the entry into force on January 1, 1995, of the Agreement on Trade-Re-lated Aspects of Intellectual Property Rights (TRIPs) (Annex 1C to the World Trade Organi-zation (WTO) Agreement). Part II, section 6 of TRIPs protects semiconductor chip products and was the basis for Presidential Proclamation No. 6780, March 23, 1995, under section 902(a)(2) extending protection to all present and future WTO members (146 countries as of April 4, 2003), as of January 1, 1996. See Appendix K. For a discussion of Congressional findings regarding extending protection to semicon-ductor chip products of foreign entities, see Pub. L. No. 100-159, 101 Stat. 899, and the Semi-conductor International Protection Extension Act of 1991, Pub. L. No. 102-64, 105 Stat. 320.
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Chapter 10 1
Digital Audio Recording Devices and Media section page 1001 Definitions .......................................................... 220
� 1002 Incorporation of copying controls .................................... 222
� 1003 Obligation to make royalty payments ................................ 223
� 1004 Royalty payments .................................................... 224
� 1005 Deposit of royalty payments and deduction of expenses .............. 225
� 1006 Entitlement to royalty payments ..................................... 225
� 1007 Procedures for distributing royalty payments ........................ 227
� 1008 Prohibition on certain infringement actions ......................... 228
� 1009 Civil remedies ....................................................... 228
� 1010 Determination of certain disputes ................................... 230
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§ 1001 Digital Audio Recording Devices and Media
Subchapter A — Definitions § 1001 · Definitions As used in this chapter, the following terms have the following meanings: (1) A “digital audio copied recording” is a reproduction in a digital re-cording format of a digital musical recording, whether that reproduction is made directly from another digital musical recording or indirectly from a transmission. (2) A “digital audio interface device” is any machine or device that is de-signed specifically to communicate digital audio information and related interface data to a digital audio recording device through a nonprofessional interface. (3) A “digital audio recording device” is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital record-ing function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use, except for— (A) professional model products, and (B) dictation machines, answering machines, and other audio record-ing equipment that is designed and marketed primarily for the creation of sound recordings resulting from the fixation of nonmusical sounds. (4)(A) A “digital audio recording medium” is any material object in a form commonly distributed for use by individuals, that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device. (B) Such term does not include any material object— (i) that embodies a sound recording at the time it is first distributed by the importer or manufacturer; or (ii) that is primarily marketed and most commonly used by consum-ers either for the purpose of making copies of motion pictures or other audiovisual works or for the purpose of making copies of nonmusical literary works, including computer programs or data bases. (5)(A) A “digital musical recording” is a material object— (i) in which are fixed, in a digital recording format, only sounds, and material, statements, or instructions incidental to those fixed sounds, if any, and (ii) from which the sounds and material can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
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Digital Audio Recording Devices and Media § 1001
(B) A “digital musical recording” does not include a material object— (i) in which the fixed sounds consist entirely of spoken word record-ings, or (ii) in which one or more computer programs are fixed, except that a digital musical recording may contain statements or instructions con-stituting the fixed sounds and incidental material, and statements or instructions to be used directly or indirectly in order to bring about the perception, reproduction, or communication of the fixed sounds and incidental material. (C) For purposes of this paragraph— (i) a “spoken word recording” is a sound recording in which are fixed only a series of spoken words, except that the spoken words may be ac-companied by incidental musical or other sounds, and (ii) the term “incidental” means related to and relatively minor by comparison. (6) “Distribute” means to sell, lease, or assign a product to consumers in the United States, or to sell, lease, or assign a product in the United States for ultimate transfer to consumers in the United States. (7) An “interested copyright party” is— (A) the owner of the exclusive right under section 106(1) of this title to reproduce a sound recording of a musical work that has been embodied in a digital musical recording or analog musical recording lawfully made under this title that has been distributed; (B) the legal or beneficial owner of, or the person that controls, the right to reproduce in a digital musical recording or analog musical recording a musical work that has been embodied in a digital musical recording or analog musical recording lawfully made under this title that has been dis-tributed; (C) a featured recording artist who performs on a sound recording that has been distributed; or (D) any association or other organization— (i) representing persons specified in subparagraph (A), (B), or (C), or (ii) engaged in licensing rights in musical works to music users on behalf of writers and publishers. (8) To “manufacture” means to produce or assemble a product in the United States. A “manufacturer” is a person who manufactures. (9) A “music publisher” is a person that is authorized to license the repro-duction of a particular musical work in a sound recording. (10) A “professional model product” is an audio recording device that is designed, manufactured, marketed, and intended for use by recording profes-sionals in the ordinary course of a lawful business, in accordance with such requirements as the Secretary of Commerce shall establish by regulation.
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§ 1001 Digital Audio Recording Devices and Media
(11) The term “serial copying” means the duplication in a digital format of a copyrighted musical work or sound recording from a digital reproduction of a digital musical recording. The term “digital reproduction of a digital musi-cal recording” does not include a digital musical recording as distributed, by authority of the copyright owner, for ultimate sale to consumers. (12) The “transfer price” of a digital audio recording device or a digital audio recording medium— (A) is, subject to subparagraph (B)— (i) in the case of an imported product, the actual entered value at United States Customs (exclusive of any freight, insurance, and appli-cable duty), and (ii) in the case of a domestic product, the manufacturer’s transfer price (FOB the manufacturer, and exclusive of any direct sales taxes or excise taxes incurred in connection with the sale); and (B) shall, in a case in which the transferor and transferee are related enti-ties or within a single entity, not be less than a reasonable arms-length price under the principles of the regulations adopted pursuant to section 482 of the Internal Revenue Code of 1986, or any successor provision to such section. (13) A “writer” is the composer or lyricist of a particular musical work. Subchapter B — Copying Controls § 1002 · Incorporation of copying controls (a) Prohibition on Importation, Manufacture, and Distribution.— No person shall import, manufacture, or distribute any digital audio recording device or digital audio interface device that does not conform to— (1) the Serial Copy Management System; (2) a system that has the same functional characteristics as the Serial Copy Management System and requires that copyright and generation status infor-mation be accurately sent, received, and acted upon between devices using the system’s method of serial copying regulation and devices using the Serial Copy Management System; or (3) any other system certified by the Secretary of Commerce as prohibiting unauthorized serial copying. (b) Development of Verification Procedure.—The Secretary of Com-merce shall establish a procedure to verify, upon the petition of an interested party, that a system meets the standards set forth in subsection (a)(2). (c) Prohibition on Circumvention of the System.—No person shall import, manufacture, or distribute any device, or offer or perform any service, Copyright Law of the United States
Digital Audio Recording Devices and Media § 100
the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent any program or circuit which implements, in whole or in part, a system described in subsection (a). (d) Encoding of Information on Digital Musical Recordings.— (1) Prohibition on encoding inaccurate information.—No person shall encode a digital musical recording of a sound recording with inaccurate information relating to the category code, copyright status, or generation sta-tus of the source material for the recording. (2) Encoding of copyright status not required.—Nothing in this chapter requires any person engaged in the importation or manufacture of digital musical recordings to encode any such digital musical recording with respect to its copyright status. (e) Information Accompanying Transmission in Digital Format.— Any person who transmits or otherwise communicates to the public any sound recording in digital format is not required under this chapter to transmit or oth-erwise communicate the information relating to the copyright status of the sound recording. Any such person who does transmit or otherwise communicate such copyright status information shall transmit or communicate such information accurately. Subchapter C — Royalty Payments § 1003 · Obligation to make royalty payments (a) Prohibition on Importation and Manufacture.—No person shall import into and distribute, or manufacture and distribute, any digital audio re-cording device or digital audio recording medium unless such person records the notice specified by this section and subsequently deposits the statements of account and applicable royalty payments for such device or medium specified in section 1004. (b) Filing of Notice.—The importer or manufacturer of any digital audio recording device or digital audio recording medium, within a product category or utilizing a technology with respect to which such manufacturer or importer has not previously filed a notice under this subsection, shall file with the Register of Copyrights a notice with respect to such device or medium, in such form and content as the Register shall prescribe by regulation. (c) Filing of Quarterly and Annual Statements of Account.— (1) Generally.—Any importer or manufacturer that distributes any digi-tal audio recording device or digital audio recording medium that it manu-factured or imported shall file with the Register of Copyrights, in such form
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§ 100 Digital Audio Recording Devices and Media
and content as the Register shall prescribe by regulation, such quarterly and annual statements of account with respect to such distribution as the Register shall prescribe by regulation. (2) Certification, verification, and confidentiality.—Each such statement shall be certified as accurate by an authorized officer or prin-cipal of the importer or manufacturer. The Register shall issue regulations to provide for the verification and audit of such statements and to protect the confidentiality of the information contained in such statements. Such regu-lations shall provide for the disclosure, in confidence, of such statements to interested copyright parties. (3) Royalty payments.—Each such statement shall be accompanied by the royalty payments specified in section 1004. § 1004 · Royalty payments2 (a) Digital Audio Recording Devices.— (1) Amount of payment.—The royalty payment due under section 1003 for each digital audio recording device imported into and distributed in the United States, or manufactured and distributed in the United States, shall be 2 percent of the transfer price. Only the first person to manufacture and distrib-ute or import and distribute such device shall be required to pay the royalty with respect to such device. (2) Calculation for devices distributed with other devices.— With respect to a digital audio recording device first distributed in combina-tion with one or more devices, either as a physically integrated unit or as separate components, the royalty payment shall be calculated as follows: (A) If the digital audio recording device and such other devices are part of a physically integrated unit, the royalty payment shall be based on the transfer price of the unit, but shall be reduced by any royalty payment made on any digital audio recording device included within the unit that was not first distributed in combination with the unit. (B) If the digital audio recording device is not part of a physically inte-grated unit and substantially similar devices have been distributed sepa-rately at any time during the preceding 4 calendar quarters, the royalty payment shall be based on the average transfer price of such devices during those 4 quarters. (C) If the digital audio recording device is not part of a physically in-tegrated unit and substantially similar devices have not been distributed separately at any time during the preceding 4 calendar quarters, the royalty payment shall be based on a constructed price reflecting the proportional value of such device to the combination as a whole.
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Digital Audio Recording Devices and Media § 100
(3) Limits on royalties.—Notwithstanding paragraph (1) or (2), the amount of the royalty payment for each digital audio recording device shall not be less than $1 nor more than the royalty maximum. The royalty maximum shall be $8 per device, except that in the case of a physically integrated unit containing more than 1 digital audio recording device, the royalty maximum for such unit shall be $12. During the 6th year after the effective date of this chapter, and not more than once each year thereafter, any interested copyright party may petition the Copyright Royalty Judges to increase the royalty maximum and, if more than 20 percent of the royalty payments are at the relevant royalty maxi-mum, the Copyright Royalty Judges shall prospectively increase such royalty maximum with the goal of having no more than 10 percent of such payments at the new royalty maximum; however the amount of any such increase as a percentage of the royalty maximum shall in no event exceed the percentage increase in the Consumer Price Index during the period under review. (b) Digital Audio Recording Media.—The royalty payment due under section 1003 for each digital audio recording medium imported into and distrib-uted in the United States, or manufactured and distributed in the United States, shall be 3 percent of the transfer price. Only the first person to manufacture and distribute or import and distribute such medium shall be required to pay the royalty with respect to such medium. § 1005 · Deposit of royalty payments and deduction of expenses3 The Register of Copyrights shall receive all royalty payments deposited under this chapter and, after deducting the reasonable costs incurred by the Copyright Office under this chapter, shall deposit the balance in the Treasury of the United States as offsetting receipts, in such manner as the Secretary of the Treasury di-rects. All funds held by the Secretary of the Treasury shall be invested in interest-bearing United States securities for later distribution with interest under section 1007. The Register may, in the Register’s discretion, 4 years after the close of any calendar year, close out the royalty payments account for that calendar year, and may treat any funds remaining in such account and any subsequent deposits that would otherwise be attributable to that calendar year as attributable to the suc-ceeding calendar year. § 1006 · Entitlement to royalty payments 4 (a) Interested Copyright Parties.—The royalty payments deposited pursuant to section 1005 shall, in accordance with the procedures specified in section 1007, be distributed to any interested copyright party—
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§ 100 Digital Audio Recording Devices and Media
(1) whose musical work or sound recording has been— (A) embodied in a digital musical recording or an analog musical record-ing lawfully made under this title that has been distributed, and (B) distributed in the form of digital musical recordings or analog musi-cal recordings or disseminated to the public in transmissions, during the period to which such payments pertain; and (2) who has filed a claim under section 1007. (b) Allocation of Royalty Payments to Groups.—The royalty payments shall be divided into 2 funds as follows: (1) The sound recordings fund.—66 ⅔ percent of the royalty payments shall be allocated to the Sound Recordings Fund. 2 ⅝ percent of the royalty payments allocated to the Sound Recordings Fund shall be placed in an escrow account managed by an independent administrator jointly appointed by the interested copyright parties described in section 1001(7)(A) and the American Federation of Musicians (or any successor en-tity) to be distributed to nonfeatured musicians (whether or not members of the American Federation of Musicians or any successor entity) who have performed on sound recordings distributed in the United States. 1 ⅜ per-cent of the royalty payments allocated to the Sound Recordings Fund shall be placed in an escrow account managed by an independent administrator jointly appointed by the interested copyright parties described in section 1001(7)(A) and the American Federation of Television and Radio Artists (or any successor entity) to be distributed to nonfeatured vocalists (whether or not members of the American Federation of Television and Radio Artists or any successor entity) who have performed on sound recordings distrib-uted in the United States. 40 percent of the remaining royalty payments in the Sound Recordings Fund shall be distributed to the interested copyright parties described in section 1001(7)(C), and 60 percent of such remaining royalty payments shall be distributed to the interested copyright parties described in section 1001(7)(A). (2) The Musical Works Fund.— (A) 33 ¹⁄₃ percent of the royalty payments shall be allocated to the Musi-cal Works Fund for distribution to interested copyright parties described in section 1001(7)(B). (B)(i) Music publishers shall be entitled to 50 percent of the royalty pay-ments allocated to the Musical Works Fund. (ii) Writers shall be entitled to the other 50 percent of the royalty pay-ments allocated to the Musical Works Fund. (c) Allocation of Royalty Payments Within Groups.—If all interested copyright parties within a group specified in subsection (b) do not agree on a voluntary proposal for the distribution of the royalty payments within each group, the Copyright Royalty Judges shall, pursuant to the procedures specified under
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section 1007(c), allocate royalty payments under this section based on the extent to which, during the relevant period— (1) for the Sound Recordings Fund, each sound recording was distributed in the form of digital musical recordings or analog musical recordings; and (2) for the Musical Works Fund, each musical work was distributed in the form of digital musical recordings or analog musical recordings or dissemi-nated to the public in transmissions. § 1007 · Procedures for distributing royalty payments5 (a) Filing of Claims and Negotiations.— (1) Filing of claims.—During the first 2 months of each calendar year, every interested copyright party seeking to receive royalty payments to which such party is entitled under section 1006 shall file with the Copyright Royalty Judges a claim for payments collected during the preceding year in such form and manner as the Copyright Royalty Judges shall prescribe by regulation. (2) Negotiations.—Notwithstanding any provision of the antitrust laws, for purposes of this section interested copyright parties within each group specified in section 1006(b) may agree among themselves to the proportionate division of royalty payments, may lump their claims together and file them jointly or as a single claim, or may designate a common agent, including any organization described in section 1001(7)(D), to negotiate or receive payment on their behalf; except that no agreement under this subsection may modify the allocation of royalties specified in section 1006(b). (b) Distribution of Payments in the Absence of a Dispute.—After the period established for the filing of claims under subsection (a), in each year, the Copyright Royalty Judges shall determine whether there exists a controversy concerning the distribution of royalty payments under section 1006(c). If the Copyright Royalty Judges determine that no such controversy exists, the Copy-right Royalty Judges shall, within 30 days after such determination, authorize the distribution of the royalty payments as set forth in the agreements regarding the distribution of royalty payments entered into pursuant to subsection (a). The Librarian of Congress shall, before such royalty payments are distributed, deduct the reasonable administrative costs incurred under this section. (c) Resolution of Disputes.—If the Copyright Royalty Judges find the existence of a controversy, the Copyright Royalty Judges shall, pursuant to chapter 8 of this title, conduct a proceeding to determine the distribution of royalty pay-ments. During the pendency of such a proceeding, the Copyright Royalty Judges shall withhold from distribution an amount sufficient to satisfy all claims with respect to which a controversy exists, but shall, to the extent feasible, authorize the distribution of any amounts that are not in controversy. The Librarian of Copyright Law of the United States
§ 100 Digital Audio Recording Devices and Media
Congress shall, before such royalty payments are distributed, deduct the reason-able administrative costs incurred under this section. Subchapter D — Prohibition on Certain Infringement Actions, Remedies, and Arbitration § 1008 · Prohibition on certain infringement actions No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio record-ing device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musi-cal recordings. § 1009 · Civil remedies (a) Civil Actions.—Any interested copyright party injured by a violation of section 1002 or 1003 may bring a civil action in an appropriate United States district court against any person for such violation. (b) Other Civil Actions.—Any person injured by a violation of this chapter may bring a civil action in an appropriate United States district court for actual damages incurred as a result of such violation. (c) Powers of the Court.—In an action brought under subsection (a), the court— (1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain such violation; (2) in the case of a violation of section 1002, or in the case of an injury re-sulting from a failure to make royalty payments required by section 1003, shall award damages under subsection (d); (3) in its discretion may allow the recovery of costs by or against any party other than the United States or an officer thereof; and (4) in its discretion may award a reasonable attorney’s fee to the prevailing party. (d) Award of Damages.— (1) Damages for section 1002 or 1003 violations.— (A) Actual damages.— (i) In an action brought under subsection (a), if the court finds that a violation of section 1002 or 1003 has occurred, the court shall award to
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the complaining party its actual damages if the complaining party elects such damages at any time before final judgment is entered. (ii) In the case of section 1003, actual damages shall constitute the royalty payments that should have been paid under section 1004 and deposited under section 1005. In such a case, the court, in its discretion, may award an additional amount of not to exceed 50 percent of the actual damages. (B) Statutory damages for section 1002 violations.— (i) Device.—A complaining party may recover an award of statutory damages for each violation of section 1002(a) or (c) in the sum of not more than $2,500 per device involved in such violation or per device on which a service prohibited by section 1002(c) has been performed, as the court considers just. (ii) Digital musical recording.—A complaining party may re-cover an award of statutory damages for each violation of section 1002(d) in the sum of not more than $25 per digital musical recording involved in such violation, as the court considers just. (iii) Transmission.—A complaining party may recover an award of damages for each transmission or communication that violates section 1002(e) in the sum of not more than $10,000, as the court considers just. (2) Repeated violations.—In any case in which the court finds that a person has violated section 1002 or 1003 within 3 years after a final judg-ment against that person for another such violation was entered, the court may increase the award of damages to not more than double the amounts that would otherwise be awarded under paragraph (1), as the court considers just. (3) Innocent violations of section 1002.—The court in its discretion may reduce the total award of damages against a person violating section 1002 to a sum of not less than $250 in any case in which the court finds that the violator was not aware and had no reason to believe that its acts constituted a violation of section 1002. (e) Payment of Damages.—Any award of damages under subsection (d) shall be deposited with the Register pursuant to section 1005 for distribution to interested copyright parties as though such funds were royalty payments made pursuant to section 1003. (f) Impounding of Articles.—At any time while an action under subsec-tion (a) is pending, the court may order the impounding, on such terms as it deems reasonable, of any digital audio recording device, digital musical recording, or device specified in section 1002(c) that is in the custody or control of the al-leged violator and that the court has reasonable cause to believe does not comply with, or was involved in a violation of, section 1002.
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(g) Remedial Modification and Destruction of Articles.—In an ac-tion brought under subsection (a), the court may, as part of a final judgment or decree finding a violation of section 1002, order the remedial modification or the destruction of any digital audio recording device, digital musical recording, or device specified in section 1002(c) that— (1) does not comply with, or was involved in a violation of, section 1002, and (2) is in the custody or control of the violator or has been impounded under subsection (f). § 1010 · Determination of certain disputes6 (a) Scope of Determination.—Before the date of first distribution in the United States of a digital audio recording device or a digital audio interface de-vice, any party manufacturing, importing, or distributing such device, and any interested copyright party may mutually agree to petition the Copyright Royalty Judges to determine whether such device is subject to section 1002, or the basis on which royalty payments for such device are to be made under section 1003. (b) Initiation of Proceedings.—The parties under subsection (a) shall file the petition with the Copyright Royalty Judges requesting the commence-ment of a proceeding. Within 2 weeks after receiving such a petition, the Chief Copyright Royalty Judge shall cause notice to be published in the Federal Regis-ter of the initiation of the proceeding. (c) Stay of Judicial Proceedings.—Any civil action brought under sec-tion 1009 against a party to a proceeding under this section shall, on applica-tion of one of the parties to the proceeding, be stayed until completion of the proceeding. (d) Proceeding.—The Copyright Royalty Judges shall conduct a proceed-ing with respect to the matter concerned, in accordance with such procedures as the Copyright Royalty Judges may adopt. The Copyright Royalty Judges shall act on the basis of a fully documented written record. Any party to the proceed-ing may submit relevant information and proposals to the Copyright Royalty Judges. The parties to the proceeding shall each bear their respective costs of participation. (e) Judicial Review.—Any determination of the Copyright Royalty Judges under subsection (d) may be appealed, by a party to the proceeding, in accor-dance with section 803(d) of this title. The pendency of an appeal under this subsection shall not stay the determination of the Copyright Royalty Judges. If the court modifies the determination of the Copyright Royalty Judges, the court shall have jurisdiction to enter its own decision in accordance with its final judg-ment. The court may further vacate the determination of the Copyright Royalty Judges and remand the case for proceedings as provided in this section.
0 Copyright Law of the United States
Digital Audio Recording Devices and Media Endnotes
Chapter 10 · Endnotes 1. The Audio Home Recording Act of 1992 added chapter 10, entitled “Digital Audio Record-ing Devices and Media,” to title 17. Pub. L. No. 102-563, 106 Stat. 4237. 2. The Copyright Royalty Tribunal Reform Act of 1993 amended section 1004(a)(3) by substituting “Librarian of Congress” in lieu of “Copyright Royalty Tribunal,” where appro-priate. Pub. L. No. 103-198, 107 Stat. 2304, 2312. The Copyright Royalty and Distribution Reform Act of 2004 amended paragraph 1004(a)(3) by substituting “Copyright Royalty Judges” in lieu of “Librarian of Congress,” wherever it appeared. Pub. L. No. 108-419, 118 Stat. 2341, 2368. 3. The Copyright Royalty Tribunal Reform Act of 1993 amended section 1005 by striking the last sentence which began “The Register shall submit to the Copyright Royalty Tribunal.” Pub. L. No. 103-198, 107 Stat. 2304, 2312. 4. The Copyright Royalty Tribunal Reform Act of 1993 amended section 1006(c) by sub-stituting “Librarian of Congress” in lieu of “Copyright Royalty Tribunal,” where appropriate. Pub. L. No. 103-198, 107 Stat. 2304, 2312. In 1997, section 1006(b)(1) was amended to insert “Federation of Television” in lieu of “Federation Television” wherever it appeared. Pub. L. No. 105-80, 111 Stat. 1529, 1535. The Copyright Royalty and Distribution Reform Act of 2004 amended subsection 1006(c) by substituting “Copyright Royalty Judges” for “Librarian of Congress shall convene a copy-right arbitration royalty panel which” in matter preceding paragraph (1). Pub. L. No. 108-419, 118 Stat. 2341, 2368. . The Copyright Royalty Tribunal Reform Act of 1993 amended section 1007 by substi-tuting “Librarian of Congress” in lieu of “Copyright Royalty Tribunal” or “Tribunal,” where appropriate, by amending the first sentence in subsection (c) and by inserting “the reason-able administrative costs incurred by the Librarian” in the last sentence of subsection (c), in lieu of “its reasonable administrative costs.” Pub. L. No. 103-198, 107 Stat. 2304, 2312. In 1997, section 1007 was amended, in subsection (a)(1), by inserting “calendar year 1992” in lieu of “the calendar year in which this chapter takes effect” and, in subsection (b), by inserting “1992” in lieu of “the year in which this section takes effect,” and also in subsection (b), by inserting “After” in lieu of “Within 30 days after.” Pub. L. No. 105-80, 111 Stat. 1529, 1534 and 1535. The Copyright Royalty and Distribution Reform Act of 2004 Act amended para-graph 1007(a)(1) and subsections (b) and (c) in their entirety. Pub. L. No. 108-419, 118 Stat. 2341, 2368. In 2006, the Copyright Royalty Judges Program Technical Corrections Act amended subsections 1007(b) and (c) by making technical and conforming amendments to correct references to the Copyright Royalty Board and deleting “Librarian of Congress,” where ap-propriate. Pub. L. No. 109-303, 120 Stat. 1478, 1483. 6. The Copyright Royalty Tribunal Reform Act of 1993 amended section 1010 by substi-tuting “Librarian of Congress” in lieu of “Copyright Royalty Tribunal” or “Tribunal,” where appropriate, and by inserting “Librarian’s” in lieu of “its.” Pub. L. No. 103-198, 107 Stat. 2304, 2312. That Act, which established copyright arbitration royalty panels, states that “[a]ll roy-alty rates and all determinations with respect to the proportionate division of compulsory
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Endnotes Digital Audio Recording Devices and Media
license fees among copyright claimants, whether made by the Copyright Royalty Tribunal,
�or by voluntary agreement, before the effective date set forth in subsection (a) [December
17, 1993] shall remain in effect until modified by voluntary agreement or pursuant to the
amendments made by this Act.” Pub. L. No. 103-198, 107 Stat. 2304, 2313.
�The Copyright Royalty and Distribution Reform Act of 2004 Act amended section 1010
in its entirety. Pub. L. No. 108-419, 118 Stat. 2341, 2368.
�
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section page
1101 Unauthorized fixation and trafficking in
sound recordings and music videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Chapter 11 1
Sound Recordings and Music Videos § 1101 · Unauthorized fi xation a nd t rafficking i n s ound r ecordings and music videos (a) Unauthorized Acts.—Anyone who, without the consent of the per-former or performers involved— (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation, (2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or (3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright. (b) Definition.—As used in this section, the term “traffic in” means transport, transfer, or otherwise dispose of, to another, as consideration for anything of value, or make or obtain control of with intent to transport, transfer, or dispose of. (c) Applicability.—This section shall apply to any act or acts that occur on or after the date of the enactment of the Uruguay Round Agreements Act. (d) State Law Not Preempted.—Nothing in this section may be construed to annul or limit any rights or remedies under the common law or statutes of any State. Chapter 11 · Endnote 1. In 1994, the Uruguay Round Agreements Act added chapter 11, entitled “Sound Recordings and Music Videos,” to title 17. Pub. L. No. 103-465, 108 Stat. 4809, 4974.
Sound Recordings and Music Videos
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Chapter 12 1
Copyright Protection and Management Systems section page 1201 Circumvention of copyright protection systems ...................... 236
� 1202 Integrity of copyright management information ..................... 245
� 1203 Civil remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
� 1204 Criminal offenses and penalties ..................................... 249
� 1205 Savings clause ....................................................... 250
�
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§ 1201 · Circumvention of copyright protection systems2 (a) Violations Regarding Circumvention of Technological Measures.—(
1)(A) No person shall circumvent a technological measure that effec-tively controls access to a work protected under this title. The prohibition con-tained 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) During the 2-year period described in subparagraph (A), and during each succeeding 3-year period, the Librarian of Congress, upon the recom-mendation of the Register of Copyrights, who shall consult with the As-sistant Secretary for Communications and Information of the Department of C ommerce and report and comment on his or her views in making such recommendation, shall make the determination in a rulemaking proceed-ing 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, ad-versely 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, preserva-tion, and educational purposes; (iii) the impact that the prohibition on the circumvention of techno-logical measures applied to copyrighted works has on criticism, com-ment, 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) 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 pro-hibition 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
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a defense in any action to enforce any provision of this title other than this paragraph. (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that— (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a techno-logical 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, by-pass, 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 copy-right owner, to gain access to the work. (b) Additional Violations.—(1) No person shall manufacture, import, of-fer 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 effec-tively 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 impair-ing a technological measure; and
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(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, includ-ing fair use, under this title. (2) Nothing in this section shall enlarge or diminish vicarious or contribu-tory 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, telecommunica-tions, or computing product provide for a response to any particular techno-logical 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 pro-hibitions of subsection (a)(2) or (b)(1). (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 para-graph (1)— (A) shall, for the first offense, be subject to the civil remedies under sec-tion 1203; and (B) shall, for repeated or subsequent offenses, in addition to the civil reme-dies under section 1203, forfeit the exemption provided under paragraph (1). (4) This subsection may not be used as a defense to a claim under subsec-tion (a)(2) or (b), nor may this subsection permit a nonprofit library, archives, or educational institution to manufacture, import, offer to the public, provide, Copyright Law of the United States
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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 investiga-tive, 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 vulner-abilities of a government computer, computer system, or computer network. (f) Reverse Engineering.—(1) Notwithstanding the provisions of sub-section (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title. (2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order 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, pro-vides such information or means solely for the purpose of enabling interoper-ability 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.
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(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 develop-ment of encryption products; and (B) the term “encryption technology” means the scrambling and de-scrambling 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, pho-norecord, 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, per-formance, 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 vio-lation 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 con-sidered shall include— (A) whether the information derived from the encryption research was disseminated, and if so, whether it was disseminated in a manner reasonably calculated to advance the state of knowledge or development of encryption technology, versus whether it was disseminated in a manner that facilitates infringement under this title or a violation of applicable law other than this section, including a violation of privacy or breach of security; (B) whether the person is engaged in a legitimate course of study, is em-ployed, 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.—Not-withstanding the provisions of subsection (a)(2), it is not a violation of that subsection for a person to—
0 Copyright Law of the United States
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(A) develop and employ technological means to circumvent a techno-logical 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 pur-pose of having that other person verify his or her acts of good faith encryp-tion research described in paragraph (2). (5) Report to Congress.—Not later than 1 year after the date of the en-actment 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 R egarding M inors.—In applying subsection (a) to a com-ponent 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 ca-pability of collecting or disseminating personally identifying information reflecting the online activities of a natural person who seeks to gain access to the work protected; (B) in the normal course of its operation, the technological measure, or the work it protects, collects or disseminates personally identifying infor-mation 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 dis-abling the capability described in subparagraph (A), and has no other effect on the ability of any person to gain access to any work; and
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§ 1 01 Copyright Protection and Management Systems
(D) the act of circumvention is carried out solely for the purpose of pre-venting the collection or dissemination of personally identifying informa-tion 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 pro-tects, 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 test-ing” means accessing a computer, computer system, or computer network, solely for the purpose of good faith testing, investigating, or correcting, a se-curity 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 pro-visions 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 consti-tute 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 con-sidered 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 devel-oper 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.—Notwith-standing the provisions of subsection (a)(2), it is not a violation of that sub-section for a person to develop, produce, distribute or employ technological means for the sole purpose of performing the acts of security testing described in subsection (2), provided such technological means does not otherwise vio-late section (a)(2). (k) Certain Analog Devices and Certain Technological Measures.— (1) Certain analog devices.— (A) Effective 18 months after the date of the enactment of this chapter, no person shall manufacture, import, offer to the public, provide or oth-erwise traffic in any—
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Copyright Protection and Management Systems § 1 01
(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 cam-corder 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 cal-endar 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) 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 re-corder 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 for-mat 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 technol-ogy 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 an y such recorder manufactured after the date of the enactment of this chapter, and thereafter to continue conforming to the four-line colorstripe copy control technology. For pur-poses 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.
Copyright Law of the United States
§ 1 01 Copyright Protection and Management Systems
(2) Certain encoding restrictions.—No person shall apply the auto-matic gain control copy control technology or colorstripe copy control tech-nology 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 ex-ercised 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 au-diovisual 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 sub-paragraph (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 auto-matic 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 de-vice 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. (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—
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Copyright Law of the United States 245
(i) detects one or more of the elements of such technology and does not record the motion picture or transmission protected by such tech-nology; 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, dis-playing, distributing, or transmitting copies of motion pictures on a com-mercial scale.(E) The terms “VHS format,” “8mm format,” “Beta format,” “automatic gain control copy control technology,” “colorstripe copy control technol-ogy,” “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.§ 1202 · Integrity of copyright management information3(a) False Copyright Management Information.—No person shall know-ingly 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 informa-tion 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 informa-tion 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.
Copyright Protection and Management Systems § 1202
§ 1 0 Copyright Protection and Management Systems
(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, per-formance, or display of a work: (1) The title and other information identifying the work, including the in-formation 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 copy-right. (4) With the exception of public performances of works by radio and televi-sion 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 televi-sion 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 provi-sion 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 vulner-abilities 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
Copyright Law of the United States
Copyright Protection and Management Systems § 1 0
(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, con-sensus standard-setting process involving a representative cross-section of broadcast stations or cable systems and copyright owners of a category of works that are intended for public performance by such stations or systems, a person identified in paragraph (1) shall not be liable for a violation of subsection (b) with respect to the particular copyright management infor-mation 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 sub-paragraph (A) with respect to the placement of copyright management in-formation for a category of 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 con-flict with— (I) an applicable government regulation relating to transmission of information in a digital signal; (II) an applicable industry-wide standard relating to the transmis-sion 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 trans-mission of information in a digital signal that was adopted in a vol-untary, 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 sec-tion 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).
Copyright Law of the United States
§ 1 0 Copyright Protection and Management Systems
§ 1203 · Civil remedies4 (a) Civil Actions.—Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation. (b) Powers of the Court.—In an action brought under subsection (a), the court— (1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution; (2) at any time while an action is pending, may order the impounding, on such terms as it deems reasonable, of any device or product that is in the cus-tody 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 com-mitting a violation of section 1201 or 1202 is liable for either— (A) the actual damages and any additional profits of the violator, as pro-vided 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 en-tered, 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.
Copyright Law of the United States
Copyright Protection and Management Systems § 1 0
(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 sus-tains the burden of proving, and the court finds, that a person has violated sec-tion 1201 or 1202 within three years after a final judgment was entered against the person for another such violation, the court may increase the award of damages up to triple the amount that would otherwise be awarded, as the court considers just. (5) Innocent violations.— (A) In general.—The court in its discretion may reduce or remit the total award of damages in any case in which the violator sustains the bur-den of proving, and the court finds, that the violator was not aware and had no reason to believe that its acts constituted a violation. (B) Nonprofit library, archives, educational institutions, or public broadcasting entities.— (i) Definition.—In this subparagraph, the term “public broadcast-ing entity” has the meaning given such term under section 118(g). (ii) In general.—In the case of a nonprofit library, archives, edu-cational institution, or public broadcasting entity, the court shall remit damages in any case in which the library, archives, educational institu-tion, or public broadcasting entity sustains the burden of proving, and the court finds, that the library, archives, educational institution, or pub-lic broadcasting entity was not aware and had no reason to believe that its acts constituted a violation. § 1204 · Criminal offenses and penalties5 (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, Educational Institution,
or Public Broadcasting Entity.—Subsection (a) shall not apply to a nonprofit library, archives, educational institution, or public broadcasting entity (as defined under section 118(g)). (c) Statute of Limitations.—No criminal proceeding shall be brought un-der this section unless such proceeding is commenced within five years after the cause of action arose.
Copyright Law of the United States
§ 1 0 Copyright Protection and Management Systems
§ 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 pri-vacy of an individual in connection with the individual’s use of the Internet. Chapter 12 · Endnotes 1. The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 added chapter 12, entitled “Copyright Protection and Management Systems,” to title 17. Pub. L. No. 105-304, 112 Stat. 2860, 2863. The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 is title I of the Digital Millennium Copyright Act. Pub. L. No. 105-304, 112 Stat. 2860. 2. The Satellite Home Viewer Improvement Act of 1999 amended section 1201(a)(1)(C) by deleting “on the record.” Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-594. 3. In 1999, section 1202 was amended by inserting “category of works” for “category or works,” in subsection (e)(2)(B). Pub. L. No. 106-44, 113 Stat. 221, 222. 4. The Satellite Home Viewer Improvement Act of 1999 amended section 1203(c)(5)(B) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-593. 5. The Satellite Home Viewer Improvement Act of 1999 amended section 1204(b) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-593.
0 Copyright Law of the United States
Chapter 131
Protection of Original Designs
section page 1301 Designs protected .................................................... 252
� 1302 Designs not subject to protection ..................................... 252
� 1303 Revisions, adaptations, and rearrangements ......................... 253
� 1304 Commencement of protection ........................................ 253
� 1305 Term of protection ................................................... 253
� 1306 Design notice ........................................................ 254
� 1307 Effect of omission of notice ........................................... 254
� 1308 Exclusive rights ...................................................... 255
� 1309 Infringement ......................................................... 255
� 1310 Application for registration .......................................... 256
� 1311 Benefit of earlier filing date in foreign country ....................... 258
� 1312 Oaths and acknowledgments ........................................ 258
� 1313 Examination of application and issue or refusal of registration ...... 259
� 1314 Certification of registration ......................................... 260
� 1315 Publication of announcements and indexes ......................... 260
� 1316 Fees ................................................................. 260
� 1317 Regulations ......................................................... 260
� 1318 Copies of records ..................................................... 261
� 1319 Correction of errors in certificates .................................... 261
� 1320 Ownership and transfer ............................................. 261
� 1321 Remedy for infringement ............................................ 262
� 1322 Injunctions .......................................................... 262
� 1323 Recovery for infringement ........................................... 263
� 1324 Power of court over registration ...................................... 263
� 1325 Liability for action on registration fraudulently obtained ........... 264
� 1326 Penalty for false marking ........................................... 264
� 1327 Penalty for false representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
� 1328 Enforcement by Treasury and Postal Service . . . . . . . . . . . . . . . . . . . . . . . . . 264
� 1329 Relation to design patent law ........................................ 265
� 1330 Common law and other rights unaffected ............................ 265
� 1331 Administrator; Office of the Administrator .......................... 265
� 1332 No retroactive effect ................................................ 266
�
§ 1 01 Protection of Original Designs
§ 1301 · Designs protected2 (a) Designs Protected.— (1) In general.—The designer or other owner of an original design of a useful article which makes the article attractive or distinctive in appearance to the purchasing or using public may secure the protection provided by this chapter upon complying with and subject to this chapter. (2) Vessel hulls.—The design of a vessel hull, including a plug or mold, is subject to protection under this chapter, notwithstanding section 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 simi-lar 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 nor-mal 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— (A) that is designed and capable of independently steering a course on or through water through its own means of propulsion; and (B) that is designed and capable of carrying and transporting one or more passengers. (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. § 1302 · Designs not subject to protection3 Protection under this chapter shall not be available for a design that is— (1) not original;
Copyright Law of the United States
Protection of Original Designs § 1 0
(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 insignifi-cant 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 2 years before the date of the application for registration under this chapter. § 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 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. § 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). § 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 protec-tion 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.
Copyright Law of the United States
§ 1 0 Protection of Original Designs
§ 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” within 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 subpara-graph (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 embody-ing 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. § 1307 · Effect of omission of notice (a) Actions with Notice.—Except as provided in subsection (b), the omis-sion of the notice prescribed in section 1306 shall not cause loss of the protec-tion 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 reim-burses that person for any reasonable expenditure or contractual obligation in con-nection 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.
Copyright Law of the United States
Protection of Original Designs § 1 0
§ 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. § 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 in-fringing 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 im-porter 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, ha ve made, imp ort, se ll, o r distribute, an y article embodying a design which was created without knowledge that a design was protected under this chapter and was copied from such protected design. (d) Acts in Ordinary Course of Business.—A person who incorporates into that person’s product of manufacture an infringing article acquired from others in the ordinary course of business, or who, without knowledge of the pro-tected 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 ex-cept under a condition contained in paragraph (1) or (2) of subsection (b). Accept-ing an order or reorder from the source of the infringing article shall be deemed ordering or reordering within the meaning of subsection (b)(2).
Copyright Law of the United States
§ 1 0 Protection of Original Designs
(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 ad-vertisement, 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. § 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 ex-isting 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.
Copyright Law of the United States
Protection of Original Designs § 1 10
The application for registration may include a description setting forth the sa-lient 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 accompa-nied 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 ap-plicant 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 sec-tion 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 util-ity 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 de-signer 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 registra-tion shall be accompanied by two copies of a drawing or other pictorial repre-sentation 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.
Copyright Law of the United States
§ 1 11 Protection of Original Designs
§ 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 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. § 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 admin-ister 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 docu-ment 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.
Copyright Law of the United States
Protection of Original Designs § 1 1
§ 1313 · Examination o f a pplication a nd i ssue o r r efusal of registration4 (a) Determination of Registrability of Design; Registration.— Upon the filing of an application for registration in proper form under sec-tion 1310, and upon payment of the fee prescribed under section 1316, the Ad-ministrator shall determine whether or not the application relates to a design which on its face appears to be subject to protection under this chapter, and, if so, the Register shall register the design. Registration under this subsection shall be announced by publication. The date of registration shall be the date of publication. (b) Refusal to Register; Reconsideration.—If, in the judgment of the Administrator, the application for registration relates to a design which on its face is not subject to protection under this chapter, the Administrator shall send to the applicant a notice of refusal to register and the grounds for the refusal. Within 3 months after the date on which the notice of refusal is sent, the applicant may, by written request, seek reconsideration of the application. After consideration of such a request, the Administrator shall either register the design or send to the applicant a notice of final refusal to register. (c) Application to Cancel Registration.—Any person who believes he or she is or will be damaged by a registration under this chapter may, upon pay-ment of the prescribed fee, apply to the Administrator at any time to cancel the registration on the ground that the design is not subject to protection under this chapter, stating the reasons for the request. Upon receipt of an application for cancellation, the Administrator shall send to the owner of the design, as shown in the records of the Office of the Administrator, a notice of the application, and the owner shall have a period of 3 months after the date on which such notice is mailed in which to present arguments to the Administrator for support of the validity of the registration. The Administrator shall also have the authority to establish, by regulation, conditions under which the opposing parties may ap-pear and be heard in support of their arguments. If, after the periods provided for the presentation of arguments have expired, the Administrator determines that the applicant for cancellation has established that the design is not subject to protection under this chapter, the Administrator shall order the registration stricken from the record. Cancellation under this subsection shall be announced by publication, and notice of the Administrator’s final determination with re-spect to any application for cancellation shall be sent to the applicant and to the owner of record. Costs of the cancellation procedure under this subsection shall be borne by the nonprevailing party or parties, and the Administrator shall have the authority to assess and collect such costs.
Copyright Law of the United States
§ 1 1 Protection of Original Designs
§ 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. § 1315 · Publication of announcements and indexes (a) Publications of the Administrator.—The Administrator shall pub-lish 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 Administra-tor shall establish and maintain a file of the drawings or other pictorial repre-sentations of registered designs. The file shall be available for use by the public under such conditions as the Administrator may prescribe. § 1316 · Fees The Administrator shall by regulation set reasonable fees for the filing of ap-plications 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. § 1317 · Regulations The Administrator may establish regulations for the administration of this chapter.
0 Copyright Law of the United States
Protection of Original Designs § 1 0
§ 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. § 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. § 1320 · Ownership and transfer5 (a) Property Right in Design.—The property right in a design subject to protection under this chapter shall vest in the designer, the legal representa-tives 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 de-sign, 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 Acknowledgment of Transfer.—An oath or acknowledg-ment 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.
Copyright Law of the United States 1
§ 1 1 Protection of Original Designs
§ 1321 · Remedy for infringement (a) In General.—The owner of a design is entitled, after issuance of a cer-tificate of registration of the design under this chapter, to institute an action for any infringement of the design. (b) Review of Refusal to Register.—(1) Subject to paragraph (2), the owner of a design may seek judicial review of a final refusal of the Administrator to register the design under this chapter by bringing a civil action, and may in the same action, if the court adjudges the design subject to protection under this chapter, enforce the rights in that design under this chapter. (2) The owner of a design may seek judicial review under this section if— (A) the owner has previously duly filed and prosecuted to final refusal an application in proper form for registration of the design; (B) the owner causes a copy of the complaint in the action to be deliv-ered 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 in-fringement 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). § 1322 · Injunctions (a) In General.—A court having jurisdiction over actions under this chap-ter 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.
Copyright Law of the United States
Protection of Original Designs § 1
(b) Damages for Injunctive Relief Wrongfully Obtained.—A seller or distributor who suffers damage by reason of injunctive relief wrongfully ob-tained 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. § 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 com-pensate 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 compensa-tion 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 reason-ably related to the use of the claimant’s design. In such a case, the claimant shall be required to prove only the amount of the infringer’s sales and the infringer shall be required to prove its expenses against such sales. (c) Statute of Limitations.—No recovery under subsection (a) or (b) shall be had for any infringement committed more than 3 years before the date on which the complaint is filed. (d) Attorney’s Fees.—In an action for infringement under this chapter, the court may award reasonable attorney’s fees to the prevailing party. (e) Disposition of Infringing and Other Articles.—The court may order that all infringing articles, and any plates, molds, patterns, models, or other means specifically adapted for making the articles, be delivered up for destruc-tion or other disposition as the court may direct. § 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.
Copyright Law of the United States
§ 1 Protection of Original Designs
§ 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 defen-dant 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. § 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 estab-lished 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. § 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 de-sign 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. § 1328 · Enforcement by Treasury and Postal Service (a) Regulations.—The Secretary of the Treasury and the United States Post-al 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, importa-tion of the articles.
Copyright Law of the United States
Protection of Original Designs § 1 1
(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 exclu-sion 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. § 1329 · Relation to design patent law The issuance of a design patent under title 35, United States Code, for an origi-nal design for an article of manufacture shall terminate any protection of the original design under this chapter. § 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. § 1331 · Administrator; Office of the Administrator In this chapter, the “Administrator” is the Register of Copyrights, and the “Of-fice of the Administrator” and the “Office” refer to the Copyright Office of the Library of Congress.
Copyright Law of the United States
§ 1 Protection of Original Designs
§ 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.6 Chapter 13 · Endnotes 1. In 1998, the Vessel Hull Design Protection Act added chapter 13, entitled “Protection of Original Designs,” to title 17. Pub. L. No. 105-304, 112 Stat. 2860, 2905. The Vessel Hull Design Protection Act is title V of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2905. 2. The Satellite Home Viewer Improvement Act of 1999 amended section 1301(b)(3) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-593. 3. In 1999, section 1302(5) was amended to substitute “2 years” in lieu of “1 year.” Pub. L. No. 106-44, 113 Stat. 221, 222. 4. The Satellite Home Viewer Improvement Act of 1999 amended section 1313(c) by add-ing at the end thereof the last sentence, which begins “Costs of the cancellation procedure.” Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-594. 5. In 1999, section 1320 was amended to change the spelling in the heading of subsection (c) from “acknowledgement” to “acknowledgment.” Pub. L. No. 106-44, 113 Stat. 221, 222. 6. The effective date of chapter 13 is October 28, 1998. See section 505 of the Digital Mil-lennium Copyright Act, which appears in Appendix B.
Copyright Law of the United States
Appe
ndices
appendix page
transitional and related statutory provisions
a
The Copyright Act of 1976 ........................................... 269
b
The Digital Millennium Copyright Act of 1998 ...................... 273
c
The Copyright Royalty and Distribution Reform Act of 2004 ........ 279
d
The Satellite Home Viewer Extension and
Reauthorization Act of 2004 ......................................... 282
e
The Intellectual Property Protection and Courts
Amendments Act of 2004 ............................................ 284
related united states code provisions
f
Title 18—Crimes and Criminal Procedure ........................... 286
g
Title 28—Judiciary and Judicial Procedure ......................... 296
h
Title 44—Public Printing and Documents .......................... 300
related international provisions
i
The Berne Convention Implementation Act of 1988 .................. 301
j
The Uruguay Round Agreements Act of 1994 ........................ 303
k
GATT ⁄ Trade-Related Aspects of Intellectual Property
Rights (TRIPs) Agreement, Part II ................................... 310
l
Definition of “Berne Convention Work” .............................. 312
Appendix A
The Copyright Act of 1976 1 Title I – General Revision of Copyright Law * * * * * * * Transitional and Supplementary Provisions Sec. 102. This Act becomes effective on January 1, 1978, except as otherwise expressly provided by this Act, including provisions of the first section of this Act. The provisions of sections 118, 304(b), and chapter 8 of title 17, as amended by the first section of this Act, take effect upon enactment of this Act.2 Sec. 103. This Act does not provide copyright protection for any work that goes into the public domain before January 1, 1978. The exclusive rights, as provided by section 106 of title 17 as amended by the first section of this Act, to reproduce a work in phonorecords and to distribute phonorecords of the work, do not extend to any nondramatic musical work copyrighted before July 1, 1909. Sec. 104. All proclamations issued by the President under section 1(e) or 9(b) of title 17 as it existed on December 31, 1977, or under previous copyright stat-utes of the United States, shall continue in force until terminated, suspended, or revised by the President. Sec. 1 05. (a)(1) Section 505 of title 44 is amended to read as follows: “§ 505. Sale of duplicate plates “The Public Printer shall sell, under regulations of the Joint Committee on Printing to persons who may apply, additional or duplicate stereotype or electrotype plates from which a Government publication is printed, at a price not to exceed the cost of composition, the metal, and making to the Government, plus 10 per centum, and the full amount of the price shall be paid when the order is filed.”. (2) The item relating to section 505 in the sectional analysis at the beginning of chapter 5 of title 44, is amended to read as follows: “505. Sale of duplicate plates.”. (b) Section 2113 of title 44 is amended to read as follows: [To assist the reader, section 2113 of title 44, now designated section 2117, appears in Appendix H, infra, as currently amended.]
Appendix A The Copyright Act of 1976
(c) In section 1498(b) of title 28, the phrase “section 101(b) of title 17” is amend-ed to read “section 504(c) of title 17”. (d) Section 543(a)(4) of the Internal Revenue Code of 1954, as amended, is amended by striking out “(other than by reason of section 2 or 6 thereof)”. (e) Section 3202(a) of title 39 is amended by striking out clause (5). Section 3206 of title 39 is amended by deleting the words “subsections (b) and (c)” and inserting “subsection (b)” in subsection (a), and by deleting subsection (c). Section 3206(d) is renumbered (c). (f) Subsection (a) of section 6 of the Standard Reference Data Act (15 U.S.C. 290e) is amended by deleting the phrase “section 8” and inserting in lieu thereof the phrase “section 105”.3 (g) Section 131 of title 2 is amended by deleting the phrase “deposit to secure copyright,” and inserting in lieu thereof the phrase “acquisition of material under the copyright law,”. Sec. 106. In any case where, before January 1, 1978, a person has lawfully made parts of instruments serving to reproduce mechanically a copyrighted work un-der the compulsory license provisions of section 1(e) of title 17 as it existed on December 31, 1977, such person may continue to make and distribute such parts embodying the same mechanical reproduction without obtaining a new compul-sory license under the terms of section 115 of title 17 as amended by the first sec-tion of this Act. However, such parts made on or after January 1, 1978, constitute phonorecords and are otherwise subject to the provisions of said section 115. Sec. 107. In the case of any work in which an ad interim copyright is subsist-ing or is capable of being secured on December 31, 1977, under section 22 of title 17 as it existed on that date, copyright protection is hereby extended to endure for the term or terms provided by section 304 of title 17 as amended by the first section of this Act. Sec. 108. The notice provisions of sections 401 through 403 of title 17 as amend-ed by the first section of this Act apply to all copies or phonorecords publicly distributed on or after January 1, 1978. However, in the case of a work published before January 1, 1978, compliance with the notice provisions of title 17 either as it existed on December 31, 1977, or as amended by the first section of this Act, is adequate with respect to copies publicly distributed after December 31, 1977. Sec. 109. The registration of claims to copyright for which the required de-posit, application, and fee were received in the Copyright Office before January 1, 1978, and the recordation of assignments of copyright or other instruments received in the Copyright Office before January 1, 1978, shall be made in accor-dance with title 17 as it existed on December 31, 1977. Sec. 110. The demand and penalty provisions of section 14 of title 17 as it existed on December 31, 1977, apply to any work in which copyright has been secured by publication with notice of copyright on or before that date, but any deposit and registration made after that date in response to a demand under that
0 Copyright Law of the United States
The Copyright Act of 1976 Appendix A
section shall be made in accordance with the provisions of title 17 as amended by the first section of this Act. Sec. 111. Section 2318 of title 18 of the United States Code is amended to read as follows: [To assist the reader, section 2318 of title 18, as currently amended, along with related criminal provisions, appears in Appendix F, infra.] Sec. 112. All causes of action that arose under title 17 before January 1, 1978, shall be governed by title 17 as it existed when the cause of action arose. Sec. 113. (a) The Librarian of Congress (hereinafter referred to as the “Librar-ian”) shall establish and maintain in the Library of Congress a library to be known as the American Television and Radio Archives (hereinafter referred to as the “Archives”). The purpose of the Archives shall be to preserve a permanent record of the television and radio programs which are the heritage of the people of the United States and to provide access to such programs to historians and scholars without encouraging or causing copyright infringement. (1) The Librarian, after consultation with interested organizations and individuals, shall determine and place in the Archives such copies and pho-norecords of television and radio programs transmitted to the public in the United States and in other countries which are of present or potential public or cultural interest, historical significance, cognitive value, or otherwise worthy of preservation, including copies and phonorecords of published and unpub-lished transmission programs— (A) acquired in accordance with sections 407 and 408 of title 17 as amended by the first section of this Act; and (B) transferred from the existing collections of the Library of Congress; and (C) given to or exchanged with the Archives by other libraries, archives, organizations, and individuals; and (D) purchased from the owner thereof. (2) The Librarian shall maintain and publish appropriate catalogs and indexes of the collections of the Archives, and shall make such collections available for study and research under the conditions prescribed under this section. (b) Notwithstanding the provisions of section 106 of title 17 as amended by the first section of this Act, the Librarian is authorized with respect to a transmission program which consists of a regularly scheduled newscast or on-the-spot coverage of news events and, under standards and conditions that the Librarian shall prescribe by regulation— (1) to reproduce a fixation of such a program, in the same or another tan-gible form, for the purposes of preservation or security or for distribution under the conditions of clause (3) of this subsection; and
Copyright Law of the United States 1
Appendix A The Copyright Act of 1976
(2) to compile, without abridgment or any other editing, portions of such fixations according to subject matter, and to reproduce such compilations for the purpose of clause (1) of this subsection; and (3) to distribute a reproduction made under clause (1) or (2) of this sub-section— (A) by loan to a person engaged in research; and (B) for deposit in a library or archives which meets the requirements of section 108(a) of title 17 as amended by the first section of this Act, in either case for use only in research and not for further reproduction or performance. (c) The Librarian or any employee of the Library who is acting under the au-thority of this section shall not be liable in any action for copyright infringement committed by any other person unless the Librarian or such employee knowingly participated in the act of infringement committed by such person. Nothing in this section shall be construed to excuse or limit liability under title 17 as amended by the first section of this Act for any act not authorized by that title or this sec-tion, or for any act performed by a person not authorized to act under that title or this section. (d) This section may be cited as the “American Television and Radio Archives Act”. Sec. 114. There are hereby authorized to be appropriated such funds as may be necessary to carry out the purposes of this Act. Sec. 115. If any provision of title 17, as amended by the first section of this Act, is declared unconstitutional, the validity of the remainder of this title is not affected. Appendix A · Endnotes 1. This appendix contains the Transitional and Supplementary Provisions of the Copyright Act of 1976, Pub. L. No. 94-533, 90 Stat. 2541, that do not amend title 17 of the United States Code. 2. The Copyright Act of 1976 was enacted on October 19, 1976. 3. The Intellectual Property and High Technology Technical Amendments Act of 2002 amended section 105(f) by substituting “section 6 of the Standard Reference Data Act (15 U.S.C. 290e)” for “section 290(e) of title 15.” Pub. L. No. 107-273, 116 Stat. 1758, 1910.
Copyright Law of the United States
Appendix B
The Digital Millennium Copyright Act of 1998 1 Section 1 · Short Title. This Act may be cited as the “Digital Millennium Copyright Act”. Title I — WIPO Treaties Implementation Sec. 101 · Short Title. This title may be cited as the ‘‘WIPO Copyright and Performances and Pho-nograms Treaties Implementation Act of 1998’’. * * * * * * * Sec. 105 · 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 Copy-right Treaty with respect to the United States: (A) Paragraph (5) of the definition of ‘‘international agreement’’ con-tained 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’’ con-tained 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.
Appendix B The Digital Millennium Copyright Act of 1998
(E) Subparagraph (D) of section 104A(h)(3) of title 17, United States Code, as amended by section 102(c)(2) of this Act. (F) The amendments made by section 102(c)(3) of this Act. * * * * * * * Title II — Online Copyright Infringement Liability Limitation Sec. 201 · Short Title. This title may be cited as the ‘‘Online Copyright Infringement Liability Limita-tion Act’’. * * * * * * * Sec. 203 · Effective Date. This title and the amendments made by this title shall take effect on the date of the enactment of this Act. * * * * * * * Title 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’’. * * * * * * * (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.’’.
� * * * * * * * Sec. 405 · Scope of Exclusive Rights in Sound Recordings; Ephemeral Recordings. (a) Scope of Exclusive Rights in Sound Recordings.
Copyright Law of the United States
The Digital Millennium Copyright Act of 1998 Appendix B
* * * * * * * (5) 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) The amendments made by this subsection do not annul, limit, or oth-erwise 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. * * * * * * * (c) Scope 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. * * * * * * * 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 add-ing at the end the following new chapter: ‘‘Chapter 180—Assumption 0f Certain Contractual Obligations “Sec. 4001. Assumption of contractual obligations related to transfers of rights in motion pictures. ‘‘§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 copy-right ownership under United States law in a motion picture (as the terms ‘trans-fer 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
Copyright Law of the United States
Appendix B The Digital Millennium Copyright Act of 1998
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 trans-fer 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 online 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) 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 copy-right 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. ‘‘(C) Awareness of other facts and circumstances pertaining to a particu-lar transfer from which it is apparent that the collective bargaining agree-ment 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 pro-grammer 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
Copyright Law of the United States
The Digital Millennium Copyright Act of 1998 Appendix B
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, hy-pothecation, or other security interest; or ‘‘(2) a subsequent transfer of the copyright ownership secured by the secu-rity 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 trans-feree on which obligations are imposed under subsection (a) by virtue of para-graph (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.—Noth-ing 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 ap-plicable 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. ‘‘(h) Study.—The Comptroller General, in consultation with the Register of Copyrights, shall conduct a study of the conditions in the motion picture indus-try that gave rise to this section, and the impact of this section on the 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.’’.
Copyright Law of the United States
Appendix B The Digital Millennium Copyright Act of 1998
* * * * * * * Sec. 407 · 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 of Certain Original Designs Sec. 501 · Short Title. This Act may be referred to as the ‘‘Vessel Hull Design Protection Act’’. * * * * * * * Sec. 505 · Effective Date.2 The amendments made by sections 502 and 503 shall take effect on the date of the enactment of this Act.3 Appendix B · Endnotes 1. This appendix contains provisions from the Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat. 2860, that do not amend title 17 of the United States Code. 2. The Intellectual Property and Communications Omnibus Reform Act of 1999 amend-ed section 505 by deleting everything at the end of the sentence, after “Act.” Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-521, 593. 3. Section 502 of the DMCA added chapter 13 to title 17 of the United States Code. Section 503 made conforming amendments. The date of enactment of this Act is October 28, 1998.
Copyright Law of the United States
Appendix C
The Copyright Royalty and Distribution Reform Act of 2004 1 Section 1 · Short Title. This Act may be cited as the “Copyright Royalty and Distribution Reform Act of 2004”. Sec. 2 · Reference. Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of title 17, United States Code. * * * * * * * Sec. 6 · Effective Date and Transition Provisions.2 (a) Effective Date.—This Act and the amendments made by this Act shall take effect 6 months after the date of enactment of this Act, except that the Li-brarian of Congress shall appoint 1 or more interim Copyright Royalty Judges under section 802(d) of title 17, United States Code, as amended by this Act, within 90 days after such date of enactment to carry out the functions of the Copyright Royalty Judges under title 17, United States Code, to the extent that Copyright Royalty Judges provided for in section 801(a) of title 17, United States Code, as amended by this Act, have not been appointed before the end of that 90-day period. (b) Transition Provisions.— (1) In general.—Subject to paragraphs (2) and (3), the amendments made by this Act shall not affect any proceedings commenced, petitions filed, or voluntary agreements entered into before the effective date provided in subsection (a) under the provisions of title 17, United States Code, as amended by this Act, and pending on such effective date. Such proceedings shall con-tinue, determinations made in such proceedings, and appeals taken therefrom, as if this Act had not been enacted, and shall continue in effect until modified under title 17, United States Code, as amended by this Act. Such petitions filed and voluntary agreements entered into shall remain in effect as if this Act had not been enacted. For purposes of this paragraph, the Librarian of Congress may determine whether a proceeding has commenced. The Librar-ian of Congress may terminate any proceeding commenced before the effec-tive date provided in subsection (a) pursuant to chapter 8 of title 17, United
Appendix C The Copyright Royalty and Distribution Reform Act of 2004
States Code, and any proceeding so terminated shall become null and void. In such cases, the Copyright Royalty Judges may initiate a new proceeding in accordance with regulations adopted pursuant to section 803(b)(6) of title 17, United States Code. (2) Certain royalty rate proceedings.—Notwithstanding paragraph (1), the amendments made by this Act shall not affect proceedings to determine royalty rates pursuant to section 119(c) of title 17, United States Code, that are commenced before January 31, 2006. (3) Pending proceedings.—Notwithstanding paragraph (1), any pro-ceedings to establish or adjust rates and terms for the statutory licenses under section 114(f)(2) or 112(e) of title 17, United States Code, for a statutory period commencing on or after January 1, 2005, shall be terminated upon the date of enactment of this Act and shall be null and void. The rates and terms in effect under section 114(f)(2) or 112(e) of title 17, United States Code, on Decem-ber 31, 2004, for new subscription services, eligible nonsubscription services, and services exempt under section 114(d)(1)(C)(iv) of such title, and the rates and terms published in the Federal Register under the authority of the Small Webcaster Settlement Act of 2002 (17 U.S.C. 114 note; Public Law 107-321) (including the amendments made by that Act) for the years 2003 through 2004, as well as any notice and recordkeeping provisions adopted pursuant thereto, shall remain in effect until the later of the first applicable effective date for successor terms and rates specified in section 804(b) (2) or (3)(A) of title 17, United States Code, or such later date as the parties may agree or the Copyright Royalty Judges may establish. For the period commencing January 1, 2005, an eligible small webcaster or a noncommercial webcaster, as defined in the regulations published by the Register of Copyrights pursuant to the Small Webcaster Settlement Act of 2002 (17 U.S.C. 114 note; Public Law 107-321) (including the amendments made by that Act), may elect to be subject to the rates and terms published in those regulations by complying with the procedures governing the election process set forth in those regulations not later than the first date on which the webcaster would be obligated to make a royalty payment for such period. Until successor terms and rates have been established for the period commencing January 1, 2006, licensees shall con-tinue to make royalty payments at the rates and on the terms previously in effect, subject to retroactive adjustment when successor rates and terms for such services are established. (4) Interim proceedings.—Notwithstanding subsection (a), as soon as practicable after the date of enactment of this Act, the Copyright Royalty Judges or interim Copyright Royalty Judges shall publish the notice described in section 803(b)(1)(A) of title 17, United States Code, as amended by this Act, to initiate a proceeding to establish or adjust rates and terms for the statutory licenses under section 114(f)(2) or 112(e) of title 17, United States
0 Copyright Law of the United States
The Copyright Royalty and Distribution Reform Act of 2004 Appendix C
Code, for new subscription services and eligible nonsubscription services for the period commencing January 1, 2006. The Copyright Royalty Judges or Interim Copyright Royalty Judges are authorized to cause that proceeding to take place as provided in subsection (b) of section 803 of that title within the time periods set forth in that subsection. Notwithstanding section 803(c)(1) of that title, the Copyright Royalty Judges shall not be required to issue their determination in that proceeding before the expiration of the statutory rates and terms in effect on December 31, 2004. (c) Existing Appropriations.—Any funds made available in an appropria-tions Act to carry out chapter 8 of title 17, United States Code, shall be available to the extent necessary to carry out this section. Appendix C · Endnotes 1. This appendix contains provisions from the Copyright Royalty and Distribution Reform Act of 2004, Pub. L. No. 108-419, 118 Stat. 2341, that do not amend title 17 of the United States Code. 2. In 2006, the Copyright Royalty Judges Program Technical Corrections Act amended section 6(b)(1) by substituting “effective date provided in subsection (a)” for “date of enact-ment of this Act” in the third sentence. Pub. L. No. 109-303, 120 Stat. 1478, 1483.
Copyright Law of the United States 1
Appendix D
The Satellite Home Viewer Extension and Reauthorization Act of 2004 1 * * * * * * * Title IX — Satellite Home Viewer Extension and Reauthorization Act of 2004 Section 1 · Short Titles; Table of Contents. (a) Short Titles.—This title may be cited as the “Satellite Home Viewer Extension and Reauthorization Act of 2004” or the “W. J. (Billy) Tauzin Satellite Television Act of 2004”. * * * * * * * Title I — Statutory License for Satellite Carriers Sec. 101 · Extension of Authority. (a) In General.—Section 4(a) of the Satellite Home Viewer Act of 1994 (17 U.S.C. 119 note; Public Law 103-369; 108 Stat. 3481) is amended by striking “‘De-cember 31, 2004” and inserting “‘December 31, 2009”. (b) Extension for Certain Subscribers.—Section 119(e) of title 17, Unit-ed States Code, is amended by striking “‘December 31, 2004” and inserting “‘De-cember 31, 2009”. * * * * * * * Sec. 106 · Effect on Certain Proceedings. Nothing in this title shall modify any remedy imposed on a party that is required by the judgment of a court in any action that was brought before May 1, 2004, against that party for a violation of section 119 of title 17, United States Code. * * * * * * * Sec. 109 · Study. No later than June 30, 2008, the Register of Copyrights shall report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate the Register’s findings and recommendations on
The Satellite Home Viewer Extension and Reauthorization Act of 2004 Appendix D
the operation and revision of the statutory licenses under sections 111, 119, and 122 of title 17, United States Code. The report shall include, but not be limited to, the following: (1) A comparison of the royalties paid by licensees under such sections, in-cluding historical rates of increases in these royalties, a comparison between the royalties under each such section and the prices paid in the marketplace for comparable programming. (2) An analysis of the differences in the terms and conditions of the licenses under such sections, an analysis of whether these differences are required or jus-tified by historical, technological, or regulatory differences that affect the satel-lite and cable industries, and an analysis of whether the cable or satellite industry is placed in a competitive disadvantage due to these terms and conditions. (3) An analysis of whether the licenses under such sections are still justified by the bases upon which they were originally created. (4) An analysis of the correlation, if any, between the royalties, or lack there-of, under such sections and the fees charged to cable and satellite subscribers, addressing whether cable and satellite companies have passed to subscribers any savings realized as a result of the royalty structure and amounts under such sections. (5) An analysis of issues that may arise with respect to the application of the licenses under such sections to the secondary transmissions of the primary transmissions of network stations and superstations that originate as digital signals, including issues that relate to the application of the unserved house-hold limitations under section 119 of title 17, United States Code, and to the determination of royalties of cable systems and satellite carriers. Appendix D · Endnote 1. This appendix contains provisions from the Satellite Home Viewer Extension and Re-authorization Act of 2004, Title IX, Division J of the Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, 3393, that do not amend title 17 of the United States Code.
Copyright Law of the United States
Appendix E
The Intellectual Property Protection and Courts Amendments Act of 2004 1 Section 1 · Short Title. This Act may be cited as the “Intellectual Property Protection and Courts Amend-ments Act of 2004”. Title I — Anti-counterfeiting Provisions Sec. 101 · Short Title. This title may be cited as the “‘Anti-counterfeiting Amendments Act of 2004”. * * * * * * * Sec. 103 · Other Rights Not Affected. (a) Chapters 5 and 12 of Title 17; Electronic Transmissions.—The amendments made by this title— (1) shall not enlarge, diminish, or otherwise affect any liability or limita-tions on liability under sections 512, 1201 or 1202 of title 17, United States Code; and (2) shall not be construed to apply— (A) in any case, to the electronic transmission of a genuine certificate, li-censing document, registration card, similar labeling component, or docu-mentation or packaging described in paragraph (4) or (5) of section 2318(b) of title 18, United States Code, as amended by this title; and (B) in the case of a civil action under section 2318(f) of title 18, United States Code, to the electronic transmission of a counterfeit label or counter-feit documentation or packaging defined in paragraph (1) or (6) of section 2318(b) of title 18, United States Code. (b) Fair Use.—The amendments made by this title shall not affect the fair use, under section 107 of title 17, United States Code, of a genuine certificate, licensing document, registration card, similar labeling component, or documentation or packaging described in paragraph (4) or (5) of section 2318(b) of title 18, United States Code, as amended by this title.
The Intellectual Property and Courts Amendments Act of 2004 Appendix E
Title II — Fraudulent Online Identity Sanctions Sec. 201 · Short Title. This title may be cited as the “‘Fraudulent Online Identity Sanctions Act”. * * * * * * * Sec. 205 · Construction. (a) Free Speech and Press.—Nothing in this title shall enlarge or diminish any rights of free speech or of the press for activities related to the registration or use of domain names. (b) Discretion of Courts in Determining Relief.—Nothing in this title shall restrict the discretion of a court in determining damages or other relief to be assessed against a person found liable for the infringement of intellectual property rights. (c) Discretion of Courts in Determining Terms of Imprisonment.— Nothing in this title shall be construed to limit the discretion of a court to de-termine the appropriate term of imprisonment for an offense under applicable law. Appendix E · Endnote 1. This appendix contains provisions from the Intellectual Property Protection and Courts Amendments Act of 2004, Pub. L. No. 108-482, 118 Stat. 3912, that do not amend title 17 of the United States Code.
Copyright Law of the United States
Appendix F
Title 18 — Crimes and Criminal Procedure, U. S. Code Part I — Crimes Chapter 113 — Stolen Property * * * * * * * § 2318 · �Trafficking in counterfeit labels, illicit labels, or counterfeit documentation or packaging1 (a) Whoever, in any of the circumstances described in subsection (c), know-ingly traffics in— (1) a counterfeit label or illicit label affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany— (A) a phonorecord; (B) a copy of a computer program; (C) a copy of a motion picture or other audiovisual work; (D) a copy of a literary work; (E) a copy of a pictorial, graphic, or sculptural work; (F) a work of visual art; or (G) documentation or packaging; or (2) counterfeit documentation or packaging, shall be fined under this title or imprisoned for not more than 5 years, or both. (b) As used in this section— (1) the term “counterfeit label” means an identifying label or container that appears to be genuine, but is not; (2) the term “traffic” means to transport, transfer or otherwise dispose of, to another, as consideration for anything of value or to make or obtain control of with intent to so transport, transfer or dispose of; (3) the terms “copy”, “phonorecord”, “motion picture”, “computer program”, “audiovisual work”, “literary work”, “pictorial, graphic, or sculptural work”, “sound recording”, “work of visual art”, and “copyright owner” have, respectively, the meanings given those terms in section 101 (relating to definitions) of title 17; (4) the term “illicit label” means a genuine certificate, licensing document, registration card, or similar labeling component— (A) that is used by the copyright owner to verify that a phonorecord, a copy of a computer program, a copy of a motion picture or other audio-visual work, a copy of a literary work, a copy of a pictorial, graphic, or sculptural work, a work of visual art, or documentation or packaging is not counterfeit or infringing of any copyright; and
Title 18 — Crimes and Criminal Procedure Appendix F
(B) that is, without the authorization of the copyright owner— (i) distributed or intended for distribution not in connection with the copy, phonorecord, or work of visual art to which such labeling compo-nent was intended to be affixed by the respective copyright owner; or (ii) in connection with a genuine certificate or licensing document, knowingly falsified in order to designate a higher number of licensed users or copies than authorized by the copyright owner, unless that certificate or document is used by the copyright owner solely for the purpose of monitoring or tracking the copyright owner’s distribution channel and not for the purpose of verifying that a copy or phonorecord is noninfringing; (5) the term “documentation or packaging” means documentation or packaging, in physical form, for a phonorecord, copy of a computer pro-gram, copy of a motion picture or other audiovisual work, copy of a literary work, copy of a pictorial, graphic, or sculptural work, or work of visual art; and (6) the term “counterfeit documentation or packaging” means docu-mentation or packaging that appears to be genuine, but is not. (c) The circumstances referred to in subsection (a) of this section are— (1) the offense is committed within the special maritime and territorial jurisdiction of the United States; or within the special aircraft jurisdiction of the United States (as defined in section 46501 of title 49); (2) the mail or a facility of interstate or foreign commerce is used or in-tended to be used in the commission of the offense; (3) the counterfeit label or illicit label is affixed to, encloses, or accompanies, or is designed to be affixed to, enclose, or accompany— (A) a phonorecord of a copyrighted sound recording or copyrighted musical work; (B) a copy of a copyrighted computer program; (C) a copy of a copyrighted motion picture or other audiovisual work; (D) a copy of a literary work; (E) a copy of a pictorial, graphic, or sculptural work; (F) a work of visual art; or (G) copyrighted documentation or packaging; or (4) the counterfeited documentation or packaging is copyrighted. (d) When any person is convicted of any violation of subsection (a), the court in its judgment of conviction shall in addition to the penalty therein prescribed, order the forfeiture and destruction or other disposition of all counterfeit labels or illicit labels and all articles to which counterfeit labels or illicit labels have been affixed or which were intended to have had such labels affixed and of any equipment, device, or material used to manufacture, reproduce, or assemble the counterfeit labels or illicit labels.
Copyright Law of the United States
Appendix F Title 18 — Crimes and Criminal Procedure
(e) Except to the extent they are inconsistent with the provisions of this title, all provisions of section 509, title 17, United States Code, are applicable to viola-tions of subsection (a). (f) Civil Remedies.— (1) In general.—Any copyright owner who is injured, or is threatened with injury, by a violation of subsection (a) may bring a civil action in an ap-propriate United States district court. (2) Discretion of court.—In any action brought under paragraph (1), the court— (A) may grant 1 or more temporary or permanent injunctions on such terms as the court determines to be reasonable to prevent or restrain a violation of subsection (a); (B) at any time while the action is pending, may order the impounding, on such terms as the court determines to be reasonable, of any article 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 of subsection (a); and (C) may award to the injured party— (i) reasonable attorney fees and costs; and (ii)(I) actual damages and any additional profits of the violator, as provided in paragraph (3); or (II) statutory damages, as provided in paragraph (4). (3) Actual damages and profits.— (A) In general.—The injured party is entitled to recover— (i) the actual damages suffered by the injured party as a result of a violation of subsection (a), as provided in subparagraph (B) of this paragraph; and (ii) any profits of the violator that are attributable to a violation of subsection (a) and are not taken into account in computing the actual damages. (B) Calculation of damages.—The court shall calculate actual dam-ages by multiplying— (i) the value of the phonorecords, copies, or works of visual art which are, or are intended to be, affixed with, enclosed in, or accompanied by any counterfeit labels, illicit labels, or counterfeit documentation or packaging, by (ii) the number of phonorecords, copies, or works of visual art which are, or are intended to be, affixed with, enclosed in, or accompanied by any counterfeit labels, illicit labels, or counterfeit documentation or packaging. (C) Definition.—For purposes of this paragraph, the “value” of a pho-norecord, copy, or work of visual art is—
Copyright Law of the United States
Title 18 — Crimes and Criminal Procedure Appendix F
(i) in the case of a copyrighted sound recording or copyrighted musi-cal work, the retail value of an authorized phonorecord of that sound recording or musical work; (ii) in the case of a copyrighted computer program, the retail value of an authorized copy of that computer program; (iii) in the case of a copyrighted motion picture or other audiovisual work, the retail value of an authorized copy of that motion picture or audiovisual work; (iv) in the case of a copyrighted literary work, the retail value of an authorized copy of that literary work; (v) in the case of a pictorial, graphic, or sculptural work, the retail value of an authorized copy of that work; and (vi) in the case of a work of visual art, the retail value of that work. (4) Statutory damages.—The injured party may elect, at any time be-fore final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for each violation of subsection (a) in a sum of not less than $2,500 or more than $25,000, as the court considers appropriate. (5) Subsequent violation.—The court may increase an award of dam-ages under this subsection by 3 times the amount that would otherwise be awarded, as the court considers appropriate, if the court finds that a person has subsequently violated subsection (a) within 3 years after a final judgment was entered against that person for a violation of that subsection. (6) Limitation on actions.—A civil action may not be commenced un-der section unless it is commenced within 3 years after the date on which the claimant discovers the violation of subsection (a). § 2319 · Criminal infringement of a copyright2 (a) Any person who violates section 506(a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b), ( c), and (d) and such penalties shall be in addition to any other provisions of title 17 or any other law. (b) Any person who commits an offense under section 506 (a)(1)(A) of title 17— (1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distri-bution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500; (2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
Copyright Law of the United States
Appendix F Title 18 — Crimes and Criminal Procedure
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case. (c) Any person who commits an offense under section 506(a)(1)(B) of title 17— (1) shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distri-bution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more; (2) shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and (3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distri-bution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000. (d) Any person who commits an offense under section 506(a)(1)(C) of title 17— (1) shall be imprisoned not more than 3 years, fined under this title, or both; (2) shall be imprisoned not more than 5 years, fined under this title, or both, if the offense was committed for purposes of commercial advantage or private financial gain; (3) shall be imprisoned not more than 6 years, fined under this title, or both, if the offense is a second or subsequent offense; and (4) shall be imprisoned not more than 10 years, fined under this title, or both, if the offense is a second or subsequent offense under paragraph (2). (e) (1) During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permit-ted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim. (2) Persons permitted to submit victim impact statements shall include— (A) producers and sellers of legitimate works affected by conduct in-volved in the offense; (B) holders of intellectual property rights in such works; and (C) the legal representatives of such producers, sellers, and holders. (f) As used in this section— (1) the terms “phonorecord” and “copies” have, r espectively, the meanings set forth in section 101 (relating to definitions) of title 17; (2) the terms “reproduction” and “distribution” refer to the exclusive rights of a copyright owner under clauses (1) and (3) respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17;
0 Copyright Law of the United States
Title 18 — Crimes and Criminal Procedure Appendix F
(3) the term “financial gain” has the meaning given the term in section 101 of title 17; and (4) the term “work being prepared for commercial distribution” has the mean-ing given the term in section 506(a) of title 17. § 2319A · �Unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances3 (a) Offense.—Whoever, without the consent of the performer or perform-ers involved, knowingly and for purposes of commercial advantage or private financial gain— (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation; (2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance; or (3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States; shall be imprisoned for not more than 5 years or fined in the amount set forth in this title, o r both, or if the offense is a second or subsequent offense, shall be imprisoned for not more than 10 years or fined in the amount set forth in this title, or both. (b) Forfeiture and Destruction.—When a person is convicted of a viola-tion of subsection (a), the court shall order the forfeiture and destruction of any copies or phonorecords created in violation thereof, as well as any plates, molds, matrices, masters, tapes, and film negatives by means of which such copies or phonorecords may be made. The court may also, in its discretion, order the for-feiture and destruction of any other equipment by means of which such copies or phonorecords may be reproduced, taking into account the nature, scope, and proportionality of the use of the equipment in the offense. (c) Seizure and Forfeiture.—If copies or phonorecords of sounds or sounds and images of a live musical performance are fixed outside of the United States without the consent of the performer or performers involved, such cop-ies or phonorecords are subject to seizure and forfeiture in the United States in the same manner as property imported in violation of the customs laws. The Secretary of the Treasury shall, not later than 60 days after the date of the en-actment of the Uruguay Round Agreements Act, issue regulations to carry out this subsection, including regulations by which any performer may, upon pay-ment of a specified fee, be entitled to notification by the United States Customs Service of the importation of copies or phonorecords that appear to consist of unauthorized fixations of the sounds or sounds and images of a live musical performance.
Copyright Law of the United States 1
Appendix F Title 18 — Crimes and Criminal Procedure
(d) Victim Impact Statement.— (1) During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, inc luding the estimated economic impact of the offense on that victim. (2) Persons permitted to submit victim impact statements shall include— (A) producers and sellers of legitimate works affected by conduct in-volved in the offense; (B) holders of intellectual property rights in such works; and (C) the legal representatives of such producers, sellers, and holders. (e) Definitions.—As used in this section— (1) the terms “copy”, “fixed”, “musical work”, “phonorecord”, “reproduce”, “sound recordings”, and “transmit” mean those terms within the meaning of title 17; and (2) the term “traffic in” means transport, transfer, or otherwise dispose of, to another, as consideration for anything of value, or make or obtain control of with intent to transport, transfer, or dispose of. (f) Applicability.—This section shall apply to any Act or Acts that occur on or after the date of the enactment of the Uruguay Round Agreements Act.4 § 2319B · �Unauthorized recording of Motion pictures in a Motion picture exhibition facility5 (a) Offense.—Any person who, without the authorization of the copyright owner, knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of a motion picture or other audiovisual work protected under title 17, or any part thereof, from a performance of such work in a motion picture exhibition facility, shall— (1) be imprisoned for not more than 3 years, fined under this title, or both; or (2) if the offense is a second or subsequent offense, be imprisoned for no more than 6 years, fined under this title, or both. The possession by a person of an audiovisual recording device in a motion picture exhibition facility may be considered as evidence in any proceeding to de-termine whether that person committed an offense under this subsection, but shall not, by itself, be sufficient to support a conviction of that person for such offense. (b) Forfeiture and Destruction.—When a person is convicted of a viola-tion of subsection (a), the court in its judgment of conviction shall, in addition to any penalty provided, order the forfeiture and destruction or other disposition of all unauthorized copies of motion pictures or other audiovisual works protected under title 17, or parts thereof, and any audiovisual recording devices or other equipment used in connection with the offense.
Copyright Law of the United States
Title 18 — Crimes and Criminal Procedure Appendix F
(c) Authorized Activities.—This section does not prevent any lawfully authorized investigative, protective, or intelligence activity by an officer, agent, or employee of the United States, a State, or a political subdivision of a State, or by a person acting under a contract with the United States, a State, or a political subdivision of a State. (d) Immunity for Theaters.—With reasonable cause, the owner or lessee of a motion picture exhibition facility where a motion picture or other audio-visual work is being exhibited, the authorized agent or employee of such owner or lessee, the licensor of the motion picture or other audiovisual work being exhibited, or the agent or employee of such licensor— (1) may detain, in a reasonable manner and for a reasonable time, any per-son suspected of a violation of this section with respect to that motion picture or audiovisual work for the purpose of questioning or summoning a law en-forcement officer; and (2) shall not be held liable in any civil or criminal action arising out of a detention under paragraph (1). (e) Victim Impact Statement.— (1) In general.—During the preparation of the presentence report under rule 32(c) of the Federal Rules of Criminal Procedure, victims of an offense under this section shall be permitted to submit to the probation officer a vic-tim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim. (2) Contents.—A victim impact statement submitted under this subsec-tion shall include— (A) producers and sellers of legitimate works affected by conduct in-volved in the offense; (B) holders of intellectual property rights in the works described in sub-paragraph (A); and (C) the legal representatives of such producers, sellers, and holders. (f) State Law Not Preempted.—Nothing in this section may be construed to annul or limit any rights or remedies under the laws of any State. (g) Definitions.—In this section, the following definitions shall apply: (1) Title 17 definitions.—The terms “audiovisual work”, “copy”, “copy-right owner”, “motion picture”, “motion picture exhibition facility”, and “trans-mit” have, respectively, the meanings given those terms in section 101 of title 17. (2) Audiovisual recording device.—The term “audiovisual recording device” means a digital or analog photographic or video camera, or any other technology or device capable of enabling the recording or transmission of a copyrighted motion picture or other audiovisual work, or any part thereof, regardless of whether audiovisual recording is the sole or primary purpose of the device.
Copyright Law of the United States
Appendix F Title 18 — Crimes and Criminal Procedure
Appendix F · Endnotes 1. In 1962, section 2318, entitled “Transportation, sale, or receipt of phonograph records bearing forged or counterfeit labels,” was added to title 18 of the United States Code. Pub. L. No. 87-773, 76 Stat. 775. In 1974, section 2318 was amended to change the penalties. Pub. L. No. 93-573, 88 Stat. 1873. The Copyright Act of 1976 revised section 2318 with an amend-ment in the nature of a substitute. Pub. L. No. 94-553, 90 Stat. 2541, 2600. The Piracy and Counterfeiting Amendments Act of 1982 again revised section 2318 with an amendment in the nature of a substitute that included a new title, “Trafficking in counterfeit labels for phonorecords, and copies of motion pictures or other audiovisual works.” Pub. L. No. 97-180, 96 Stat. 91. The Crime Control Act of 1990 made a technical amendment to section 2318 to delete the comma after “phonorecords” in the title. Pub. L. No. 101-647, 104 Stat. 4789, 4928. In 1994, section 2318(c)(1) was amended by inserting “section 46501 of title 49” in lieu of “section 101 of the Federal Aviation Act of 1958. Pub. L. No. 103-272, 108 Stat. 745, 1374. The Violent Crime Control and Law Enforcement Act of 1994 amended section 2318(a) by inserting “under this title” in lieu of “not more than $250,000.” Pub. L. No. 103-322, 108 Stat. 1796, 2148. (As provided in 18 USC §3571, the maximum fine for an individual is $250,000, and the maximum fine for an organization is $500,000.) The Anticounterfeiting Consumer Protection Act of 1996 amended section 2318 by changing the title, by amending subsection (a) to insert “a computer program or documen-tation” through to “knowingly traffics in counterfeit documentation or packaging for a com-puter program” in lieu of “a motion picture or other audiovisual work” and by amending subsection (b)(3) to insert “computer program” after “motion picture.” Pub. L. No. 104-153, 110 Stat. 1386. The Act also amended section 2318(c) by inserting “a copy of a copyrighted computer program or copyrighted documentation or packaging for a computer program” into paragraph (3) and by adding paragraph (4). Id. at 1387. The Anti-counterfeiting Amendments Act of 2004 amended section 2318 by changing its title, by amending subsection 2318(a) in its entirety; and by amending paragraph 2318(c)(3) in its entirety. Pub. L. No. 108-482, 118 Stat. 3912-3913. It amended paragraph 2318(c)(4) by deleting “for a computer program” after “packaging.” Id. at 3914. It amended subsection 2318(d) by inserting “or illicit labels” after “counterfeit labels,” wherever it appears and by inserting the text at the end of the sentence, after “such labels affixed.” Id. The Act also added a new subsection (f). Id. 2. The Piracy and Counterfeiting Amendments Act of 1982 added section 2319 to title 18 of the United States Code. This section was entitled “Criminal infringement of a copyright.” Pub. L. No. 97-180, 96 Stat. 91, 92. In 1992, section 2319 was amended by substituting a new subsection (b), by deleting “sound recording,” “motion picture” and “audiovisual work” from subsection (c)(1) and by substituting “120” for “118” in subsection (c)(2). Pub. L. No. 102-561, 106 Stat. 4233. In 1997, a technical amendment corrected the spelling of “last” in subsection (b)(1) to “least.” Pub. L. No. 105-80, 111 Stat. 1529, 1536. In 1997, the No Electronic Theft Act amended section 2319 of title 18 as follows: 1) in subsection (a) by inserting “and (c)” after “subsection (b),”; 2) in subsection (b), in the matter preceding paragraph (1), by inserting “section 506(a)(1) of title 17” in lieu of “subsection (a) of this section,”; 3) in subsection (b)(1) by inserting “including by electronic means” and by
Copyright Law of the United States
Title 18 — Crimes and Criminal Procedure Appendix F
inserting “which have a total retail value” in lieu of “with a retail value,” 4) by redesignating subsection (c) as subsection (e); and 5) by adding new subsections (c) and (d). Pub. L. No. 105-147, 111 Stat. 2678. The Act also directed the United States Sentencing Commission to “ensure that the applicable guideline range for a defendant convicted of a crime against intellectual property … is sufficiently stringent to deter such a crime” and to “ensure that the guidelines provide for consideration of the retail value and quantity of the items with respect to which the crime against intellectual property was committed.” Id. See also endnote 4, chapter 5, supra. The Intellectual Property and High Technology Technical Amendments Act of 2002 amended paragraph (2) of section 2319(e) by substituting sections “107 through 122” for “107 through 120.” Pub. L. No. 107-273, 116 Stat. 1758, 1910. The Artists’ Rights and Theft Prevention Act of 2005 amended the beginning of the first sentence of 5 U.S.C. 2319(a) by substituting “Any person who” in lieu of “Whoever.” Pub. L. No. 109-9, 119 Stat. 218, 220-221. It amended subsection 2319(a) by substituting “subsections (b), (c) and (d)” in lieu of “subsections (b) and (c). Id. at 221. It amended the first line of sub-section 2319(b) by inserting “section 506(a)(1)(A)” in lieu of “section 506(a)(1). Id. The Act amended the first line of subsection 2319(c) by inserting “section 506(a)(1)(B) of title 17” in lieu of “section 506(a)(2) of title 17, United States Code.” Id. It also amended subsection (e) by adding a new paragraph (3). Id. Finally, the Act amended section 2319 by adding a new subsection (d) and redesignating the following subsections accordingly, as (e) and (f). Id. 3. In 1994, the Uruguay Round Agreements Act added section 2319A to title 18 of the United States Code. This section was entitled “Unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances.” Pub. L. No. 103-465, 108 Stat. 4809, 4974. In 1997, the No Electronic Theft Act amended section 2319A by redesig-nating subsections (d) and (e) as subsections (e) and (f), respectively, and by adding subsec-tion (d). Pub. L. No. 105-147, 111 Stat. 2678. See also endnote 2, supra, regarding the United States Sentencing Commission. 4. The Uruguay Round Agreements Act was enacted on December 8, 1994. 5. The Artists’ Rights and Theft Prevention Act of 2005 added a new section 2319B to title 5 of the United States Code. Pub. L. No. 109-9, 119 Stat. 218.6.
Copyright Law of the United States
Appendix G
Title 28 — Judiciary and Judicial Procedure, U. S. Code Part IV — Jurisdiction and Venue Chapter 85 — District Courts; Jurisdiction * * * * * * * § 1338 · �Patents, plant variety protection, copyrights, mask works, designs, trademarks, and unfair competition1 (a) The district courts shall have original jurisdiction of any civil action aris-ing under any Act of Congress relating to patents, plant variety protection, copy-rights and trademarks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases. (b) The district courts shall have original jurisdiction of any civil action as-serting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, plant variety protection or trademark laws. (c) Subsections (a) and (b) apply to exclusive rights in mask works under chapter 9 of title 17, a nd to exclusive rights in designs under chapter 13 of title 17, to the same extent as such subsections apply to copyrights. Chapter 87 — District Courts; Venue * * * * * * * § 1400 · �Patents and copyrights, mask works, and designs2 * * * * * * * (a) Civil actions, suits, or proceedings arising under any Act of C ongress relat-ing to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found. (b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. * * * * * * *
Title 28 — Judiciary and Judicial Procedure Appendix G
Chapter 91 — United States Court of Federal Claims * * * * * * * § 1498 · Patent and copyright cases3 * * * * * * * (b) Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive ac-tion which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17, United States Code: Provided, That a Government employee shall have a right of action against the Government under this subsection ex-cept where he was in a position to order, influence, or induce use of the copy-righted work by the Government: Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the prepara-tion of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted the appropriate corporation owned or controlled by the United States or the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations. Except as otherwise provided by law, no recovery shall be had for any in-fringement of a copyright covered by this subsection committed more than three years prior to the filing of the complaint or counterclaim for infringement in the action, except that the period between the date of receipt of a written claim for compensation by the Department or agency of the Government or corporation owned or controlled by the United States, as the case may be, hav-ing authority to settle such claim and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the three years, unless suit is brought before the last-mentioned date.
Copyright Law of the United States
Appendix G Title 28 — Judiciary and Judicial Procedure
(c) The provisions of this section shall not apply to any claim arising in a foreign country. * * * * * * * (e) Subsections (b) and (c) of this section apply to exclusive rights in mask works under chapter 9 of title 17, and to exclusive rights in designs under chapter 13 of title 17, to the same extent as such subsections apply to copyrights. Appendix G · Endnotes 1. In 1948, section 1338, entitled “Patents, copyrights, trademarks, and unfair competition,” was added to title 28 of the United States Code. Pub. L. No. 773, 62 Stat. 869, 931. In 1970, the title of section 1338 and the text of subsection (b) were amended to insert “plant variety pro-tection ” after “patent.” Pub. L. No. 91-577, 84 Stat. 1542, 1559. In 1988, the Judicial Improve-ments and Access to Justice Act amended section 1338 by adding “mask works” to the title and by adding subsection (c). Pub. L. No. 100-702, 102 Stat. 4642, 4671. In 1998, the Digital Millennium Copyright Act (DMCA) amended the title by inserting “designs,” after “mask works.” Pub. L. No. 105-304, 112 Stat. 2860, 2917. The DMCA also amended subsection (c) by inserting “, and to exclusive rights in designs under chapter 13 of title 17,” after “chapter 9 of title 17.” Id. In 1999, the Anticybersquatting Consumer Protection Act amended section 1338 throughout to change “trade-mark” and “trade-marks” to “trademark” and “trademarks,” respectively. Pub. L. No. 106-113, 113 Stat. 1501, 1501A-551, app. I. 2. In 1948, section 1400, entitled “Patents and copyrights,” was added to title 28 of the United States Code. Pub. L. No. 773, 62 Stat. 869, 936. In 1988, the Judicial Improvements and Access to Justice Act amended subsection (a) by inserting “or exclusive rights in mask works” after “copyrights.” Pub. L. No. 100-702, 102 Stat. 4642, 4671. In 1998, the Digital Mil-lennium Copyright Act (DMCA) amended subsection (a) to insert “or designs” after “mask works.” Pub. L. No. 105-304, 112 Stat. 2860, 2917. The DMCA also amended the section heading to “Patents and copyrights, mask works, and designs.” This amendment included a period at the end, after “designs.” In 1999, a technical amendment deleted the period. Pub. L. No. 106-44, 113 Stat. 221, 223. 3. In 1960, section 1498 of the United States Code was amended to add subsections (b) and (c). Pub. L. No. 86-726, 74 Stat. 855. The Copyright Act of 1976 amended section 1498(b) to insert “section 504(c) of title 17” in lieu of “section 101(b) of title 17.” Pub. L. No. 94-553, 90 Stat. 2541, 2599. The Federal Courts Improvement Act of 1982 amended section 1498(a) to insert “United States Claims Court” in lieu of “Court of Claims” and, in subsections (b) and (d), to insert “Claims Court” in lieu of “Court of Claims,” wherever it appeared. Pub. L. No. 97-164, 96 Stat. 25, 40. In 1988, the Judicial Improvements and Access to Justice Act amended section 1498 by adding subsection (e). Pub. L. No. 100-702, 102 Stat. 4642, 4671. The Federal Courts Administration Act of 1992 amended section 1498 by inserting “United States Court of Federal Claims” in lieu of “United States Claims Court,” wherever it appeared, and by Copyright Law of the United States
Title 28 — Judiciary and Judicial Procedure Appendix G
inserting “Court of Federal Claims” in lieu of “Claims Court,” wherever it appeared. Pub. L. No. 102-572, 106 Stat. 4506, 4516. In 1997, the No Electronic Theft (NET) Act amended section 1498(b) to insert “action which may be brought for such infringement shall be an action by the copyright owner” in lieu of “remedy of the owner of such copyright shall be by action.” Pub. L. No. 105-147, 111 Stat. 2678, 2680. In 1998, the Digital Millennium Copyright Act amended subsection (e) by inserting, “, and to exclusive rights in designs under chapter 13 of title 17,” after “chapter 9 of title 17.” Pub. L. No. 105-304, 112 Stat. 2860, 2917.
Copyright Law of the United States
Appendix H
Title 44 — Public Printing and Documents, U. S. Code Chapter 21 — National Archives and Records Administration * * * * * * * § 2117 · Limitation on liability1 When letters and other intellectual productions (exclusive of patented material, published works under copyright protection, and unpublished works for which copyright registration has been made) come into the custody or possession of the Archivist, the United States or its agents are not liable for infringement of copy-right or analogous rights arising out of use of the materials for display, inspection, research, reproduction, or other purposes. Appendix H · Endnote 1. In 1968, this section, originally designated as section 2113, which is entitled “Limitation on liability,” was added to title 44 of the United States Code. Pub. L. No. 90-620, 82 Stat. 1238, 1291. The 1976 Copyright Act amended section 2113 in its entirety. Pub. L. No. 94-553, 90 Stat. 2541, 2599. The National Archives and Records Administration Act of 1984 amended section 2113 by redesignating it as section 2117 and by inserting “Archivist” in lieu of “Administrator of General Services.” Pub. L. No. 98-497, 98 Stat. 2280 and 2286.
Appendix I
The Berne Convention Implementation Act of 1988 1 Sec.1 · Short Title and References to Title 17, United States Code. (a) Short Title.—This Act, may be cited as the “Berne Convention Imple-mentation Act of 1988”. (b) References to Title 17, United States Code.—Whenever in this Act an amendment or repeal is expressed in terms of an amendment to or a repeal of a section or other provision, the reference shall be considered to be made to a section or other provision of title 17, United States Code. Sec. 2 · Declarations. The Congress makes the following declarations: (1) The Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revi-sions thereto (hereafter in this Act referred to as the “Berne Convention”) are not self-executing under the Constitution and laws of the United States. (2) The obligations of the United States under the Berne Convention may be performed only pursuant to appropriate domestic law. (3) The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention and no further rights or interests shall be recognized or created for that purpose. Sec. 3 · Construction of the Berne Convention. (a) Relationship with Domestic Law.—The provisions of the Berne Convention— (1) shall be given effect under title 17, as amended by this Act, and any other relevant provision of Federal or State law, including the common law; and (2) shall not be enforceable in any action brought pursuant to the provi-sions of the Berne Convention itself. (b) Certain Rights Not Affected.—The provisions of the Berne Conven-tion, the adherence of the United States thereto, and satisfaction of United States obligations thereunder, do not expand or reduce any right of an author of a work, whether claimed under Federal, State, or the common law—
Appendix I The Berne Convention Implementation Act of 1988
(1) to claim authorship of the work; or (2) to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the work, that would prejudice the author’s honor or reputation. * * * * * * * Sec. 12 · Works in the public domain. Title 17, United States Code, as amended by this Act, does not provide copy-right protection for any work that is in the public domain in the United States. Sec. 13 · Effective date: effect on pending cases. (a) Effective Date.—This Act and the amendments made by this Act take effect on the date on which the Berne Convention (as defined in section 101 of title 17, United States Code) enters into force with respect to the United States.² (b) Effect on Pending Cases.—Any cause of action arising under title 17, United States Code, before the effective date of this Act shall be governed by the provisions of such title as in effect when the cause of action arose. Appendix I · Endnotes 1. This appendix consists of provisions of the Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, that do not amend title 17 of the United States Code. 2. The Berne Convention entered into force in the United States on March 1, 1989.
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Appendix J
The Uruguay Round Agreements Act of 1994 1 Sec. 1. Short Title and Table of Contents (a) Short Title.—This act may be cited as the “Uruguay Round Agree-ments A ct”. * * * * * * * Sec. 2. Definitions. For purposes of this Act: (1) GATT 1947; GATT 1994— (A) GATT 1947—The term “GATT 1947” means the General Agreement on Tariffs and Trade, dated October 30, 1947, annexed to the Final Act Adopted at the Conclusion of the Second Session of the Preparatory Com-mittee of the United Nations Conference on Trade and Employment, as subsequently rectified, amended, or modified by the terms of legal instru-ments which have entered into force before the date of entry into force of the WTO Agreement. (B) GATT 1994—The term “GATT 1994” means the General Agreement on Tariffs and Trade annexed to the WTO Agreement. (2) HTS—The term “HTS” means the Harmonized Tariff Schedule of the United States. (3) International trade commission.—The term “International Trade Commission” means the United States International Trade Commission. (4) Multilateral trade agreement.—The term “multilateral trade agreement” means an agreement described in section 101(d) of this Act (other than an agreement described in paragraph (17) or (18) of such section). (5) Schedule XX.—The term “Schedule XX” means Schedule XX—United States of America annexed to the Marrakesh Protocol to the GATT 1994. (6) Trade representative.—The term “Trade Representative” means the United States Trade Representative. (7) Uruguay round agreements.—The term “Uruguay Round Agree-ments” means the agreements approved by the Congress under section 101(a)(1). (8) World trade organization and WTO.—The terms “World Trade Organization” and “WTO” mean the organization established pursuant to the WTO Agreement.
Appendix J The Uruguay Round Agreements Act of 1994
(9) WTO agreement.—The term “WTO Agreement” means the Agree-ment Establishing the World Trade Organization entered into on April 15, 1994. (10) WTO member and WTO member country.—The terms “WTO member” and “WTO member country” mean a state, or separate customs ter-ritory (within the meaning of Article XII of the WTO Agreement), with respect to which the United States applies the WTO Agreement. Title I — Approval of, and General Provisions Relating to, the Uruguay Round Agreements Subtitle A — Approval of Agreements and Related Provisions Sec. 101 · Approval and entry into force of the Uruguay Round Agreements. (a) Approval of Agreements and Statement of Administrative Action.—Pursuant to section 1103 of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 2903) and section 151 of the Trade Act of 1974 (19 U.S.C. 2191), the Congress approves— (1) the trade agreements described in subsection (d) resulting from the Uruguay Round of multilateral trade negotiations under the auspices of the General Agreement on Tariffs and Trade, entered into on April 15, 1994, and submitted to the Congress on September 27, 1994; and (2) the statement of administrative action proposed to implement the agree-ments that was submitted to the Congress on September 27, 1994. (b) Entry into Force.—At such time as the President determines that a suf-ficient number of foreign countries are accepting the obligations of the Uruguay Round Agreements, in accordance with article XIV of the WTO Agreement, to ensure the effective operation of, and adequate benefits for the United States un-der, those Agreements, the President may accept the Uruguay Round Agreements and implement article VIII of the WTO Agreement. (c) Authorization of Appropriations.—There are authorized to be appropriated annually such sums as may be necessary for the payment by the United States of its share of the expenses of the WTO. (d) Trade Agreements to Which This Act Applies.—Subsection (a) applies to the WTO Agreement and to the following agreements annexed to that Agreement: (1) The General Agreement on Tariffs and Trade 1994. (2) The Agreement on Agriculture. (3) The Agreement on the Application of Sanitary and Phytosanitary Measures. (4) The Agreement on Textiles and Clothing. (5) The Agreement on Technical Barriers to Trade. (6) The Agreement on Trade-Related Investment Measures.
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(7) The Agreement on Implementation of Article VI of the General Agree-ment on Tariffs and Trade 1994. (8) The Agreement on Implementation of Article VII of the General Agree-ment on Tariffs and Trade 1994. (9) The Agreement on Preshipment Inspection. (10) The Agreement on Rules of Origin. (11) The Agreement on Import Licensing Procedures. (12) The Agreement on Subsidies and Countervailing Measures. (13) The Agreement on Safeguards. (14) The General Agreement on Trade in Services. (15) The Agreement on Trade-Related Aspects of Intellectual Property Rights. (16) The Understanding on Rules and Procedures Governing the Settlement of Disputes. (17) The Agreement on Government Procurement. (18) The International Bovine Meat Agreement. Sec. 102 · Relationship of the agreements to United States law and state law. (a) Relationship of Agreements to United States Law.— (1) United States law to prevail in conflict.—No provision of any of the Uruguay Round Agreements, nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States shall have effect. (2) Construction.—Nothing in this Act shall be construed (A) to amend or modify any law of the United States, including any law relating to— (i) the protection of human, animal, or plant life or health, (ii) the protection of the environment, or (iii) worker safety, or (B) to limit any authority conferred under any law of the United States, including section 301 of the Trade Act of 1974,
�unless specifically provided for in this Act.
�(b) Relationship of Agreements to State Law.— (1) Federal–State Consultation.— (A) In General.—Upon the enactment of this Act, the President shall, through the intergovernmental policy advisory committees on trade estab-lished under section 306(c)(2)(A) of the Trade and Tariff Act of 1984 (19 U.S.C. 2114c(2)(A)), consult with the States for the purpose of achieving con-formity of State laws and practices with the Uruguay Round Agreements. (B) Federal–State Consultation Process.—The Trade Representa-tive shall establish within the Office of the United States Trade Representa-tive a Federal–State consultation process for addressing issues relating to the
The Uruguay Round Agreements Act of 1994 Appendix J
Copyright Law of the United States 0
Appendix J The Uruguay Round Agreements Act of 1994
Uruguay Round Agreements that directly relate to, or will potentially have a direct effect on, the States. The Federal–State consultation process shall include procedures under which— (i) the States will be informed on a continuing basis of matters under the Uruguay Round Agreements that directly relate to, or will potentially have a direct impact on, the States; (ii) the States will be provided an opportunity to submit, on a con-tinuing basis, to the Trade Representative information and advice with respect to matters referred to in clause (i); and (iii) the Trade Representative will take into account the information and advice received from the States under clause (ii) when formulating United States positions regarding matters referred to in clause (i). The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Federal–State consultation process established by this paragraph. (C) Federal–State Cooperation in WTO Dispute Settlement.— (i) When a WTO member requests consultations with the United States under Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes referred to in section 101(d)(16) (hereafter in this subsection referred to as the “Dispute Settlement Understanding”) concerning whether the law of a State is inconsistent with the obligations undertaken by the United States in any of the Uruguay Round Agree-ments, the Trade Representative shall notify the Governor of the State or t he G overnor’s d esignee, and t he c hief legal o fficer o f the j urisdiction whose law is the subject of the consultations, as soon as possible after the request is received, but in no event later than 7 days thereafter. (ii) Not later than 30 days after receiving such a request for consulta-tions, the Trade Representative shall consult with representatives of the State concerned regarding the matter. If the consultations involve the laws of a large number of States, the Trade Representative may consult with an appropriate group of representatives of the States concerned, as determined by those States. (iii) The Trade Representative shall make every effort to ensure that the State concerned is involved in the development of the position of the United States at each stage of the consultations and each subsequent stage of dispute settlement proceedings regarding the matter. In particu-lar, the Trade Representative shall— (I) notify the State concerned not later than 7 days after a WTO member requests the establishment of a dispute settlement panel or gives notice of the WTO member’s decision to appeal a report by a dispute settlement panel regarding the matter; and (II) provide the State concerned with the opportunity to advise and assist the Trade Representative in the preparation of factual 0 Copyright Law of the United States
The Uruguay Round Agreements Act of 1994 Appendix J
information and argumentation for any written or oral presentations by the United States in consultations or in proceedings of a panel or the Appellate Body regarding the matter. (iv) If a dispute settlement panel or the Appellate Body finds that the law of a State is inconsistent with any of the Uruguay Round Agreements, the Trade Representative shall consult with the State concerned in an ef-fort to develop a mutually agreeable response to the report of the panel or the Appellate Body and shall make every effort to ensure that the State concerned is involved in the development of the United States position regarding the response. (D) Notice to States Regarding Consultations on Foreign Subcentral Government Laws.— (i) Subject to clause (ii), the Trade Representative shall, at least 30 days before making a request for consultations under Article 4 of the Dispute Settlement Understanding regarding a subcentral government measure of another WTO member, notify, and solicit the views of, ap-propriate representatives of each State regarding the matter. (ii) In exigent circumstances clause (i) shall not apply, in which case the Trade Representative shall notify the appropriate representatives of each State not later than 3 days after making the request for consulta-tions referred to in clause (i). (2) Legal Challenge.— (A) In General.—No State law, or the application of such a State law, may be declared invalid as to any person or circumstance on the ground that the provision or application is inconsistent with any of the Uruguay Round Agreements, except in an action brought by the United States for the purpose of declaring such law or application invalid. (B) Procedures Governing Action.—In any action described in subparagraph (A) that is brought by the United States against a State or any subdivision thereof (i) a report of a dispute settlement panel or the Appellate Body con-vened under the Dispute Settlement Understanding regarding the State law, or the law of any political subdivision thereof, shall not be consid-ered as binding or otherwise accorded deference; (ii) the United States shall have the burden of proving that the law that is the subject of the action, or the application of that law, is incon-sistent with the agreement in question; (iii) any State whose interests may be impaired or impeded in the action shall have the unconditional right to intervene in the action as a party, and the United States shall be entitled to amend its complaint to include a claim or cross-claim concerning the law of a State that so intervenes; and
Copyright Law of the United States 0
Appendix J The Uruguay Round Agreements Act of 1994
(iv) any State law that is declared invalid shall not be deemed to have been invalid in its application during any period before the court’s judg-ment becomes final and all timely appeals, including discretionary re-view, of such judgment are exhausted. (C) Reports to Congressional Committees.—At least 30 days be-fore the United States brings an action described in subparagraph (A), the Trade Representative shall provide a report to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate— (i) describing the proposed action; (ii) describing efforts by the Trade Representative to resolve the mat-ter with the State concerned by other means; and (iii) if the State law was the subject of consultations under the Dis-pute Settlement Understanding, certifying that the Trade Representative has substantially complied with the requirements of paragraph (1)(C) in connection with the matter. Following the submission of the report, and before the action is brought, the Trade Representative shall consult with the committees referred to in the preceding sentence concerning the matter. (3) Definition of State Law.—For purposes of this subsection— (A) the term “State law” includes— (i) any law of a political subdivision of a State; and (ii) any State law regulating or taxing the business of insurance; and (B) the terms “dispute settlement panel” and “Appellate Body” have the meanings given those terms in section 121. (c) Effect of Agreement with Respect to Private Remedies.— (1) Limitations.—No person other than the United States— (A) shall have any cause of action or defense under any of the Uruguay Round Agreements or by virtue of congressional approval of such an agreement, or (B) may challenge, in any action brought under any provision of law, any action or inaction by any department, agency, or other instrumen-tality of the United States, any State, or any political subdivision of a State on the ground that such action or inaction is inconsistent with such agreement. (2) Intent of Congress.—It is the intention of the Congress through paragraph (1) to occupy the field with respect to any cause of action or defense under or in connection with any of the Uruguay Round Agreements, includ-ing by precluding any person other than the United States from bringing any action against any State or political subdivision thereof or raising any defense to the application of State law under or in connection with any of the Uruguay Round Agreements—
0 Copyright Law of the United States
The Uruguay Round Agreements Act of 1994 Appendix J
(A) on the basis of a judgment obtained by the United States in an action brought under any such agreement; or (B) on any other basis. (d) Statement of Administrative Action.—The statement of adminis-trative action approved by the Congress under section 101(a) shall be regarded as an authoritative expression by the United States concerning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in which a question arises concerning such interpretation or ap-plication. Sec. 103 · Implementing actions in anticipation of entry into force; regulations. (a) Implementing Actions.—After the date of the enactment of this Act— (1) the President may proclaim such actions, and (2) other appropriate officers of the United States Government may issue such regulations, as may be necessary to ensure that any provision of this Act, or amendment made by this Act, that takes effect on the date any of the Uruguay Round Agreements enters into force with respect to the United States is appropriately implemented on such date. Such proclamation or regulation may not have an effective date earlier than the date of entry into force with respect to the United States of the agreement to which the proclamation or regulation relates. (b) Regulations.—Any interim regulation necessary or appropriate to carry out any action proposed in the statement of administrative action approved under section 101(a) to implement an agreement described in section 101(d) (7), (12), or (13) shall be issued not later than 1 year after the date on which the agreement enters into force with respect to the United States. Appendix J · Endnote 1. This appendix consists of provisions of the Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, that do not amend title 17 of the United States Code.
Copyright Law of the United States 0
Appendix K
GATT ⁄ Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement, Part II 1 * * * * * * * Section 6: Layout-Designs (Topographies) of Integrated Circuits * * * * * * * Article 35 · Relation to IPIC Treaty Members agree to provide protection to the layout-designs (topographies) of integrated circuits (hereinafter referred to as “layout-designs”) in accordance with Articles 2–7 (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions. Article 36 · Scope of the Protection Subject to the provisions of paragraph 1 of Article 37 below, Members shall consider unlawful the following acts if performed without the authorization of the right holder:2 importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected lay-out-design is incorporated, or an article incorporating such an integrated circuit only insofar as it continues to contain an unlawfully reproduced layout-design. Article 37 · Acts Not Requiring the Authorization of the Right Holder3 1. Notwithstanding Article 36 above, no Member shall consider unlawful the performance of any of the acts referred to in that Article in respect of an in-tegrated circuit incorporating an unlawfully reproduced layout-design or any article incorporating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the integrated circuit or article incorporating such an integrated cir-cuit, that it incorporated an unlawfully reproduced layout-design. Members shall provide that, after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, he may perform any of the acts with respect to the stock on hand or ordered before such time, but shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated license in respect of such a layout-design. 2. The conditions set out in sub-paragraphs (a)–(k) of Article 31 above shall apply mutatis mutandis in the event of any nonvoluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder.
GATT⁄TRIPs Agreement, Part II Appendix K
Article 38 · Term of Protection 1. In Members requiring registration as a condition of protection, the term of protection of layout-designs shall not end before the expiration of a period of ten years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs. 2. In Members not requiring registration as a condition for protection, layout-designs shall be protected for a term of no less than ten years from the date of the first commercial exploitation wherever in the world it occurs. 3. Notwithstanding paragraphs 1 and 2 above, a Member may provide that protection shall lapse fifteen years after the creation of the layout-design. Appendix K · Endnotes 1. For an explanation of the relationship of this section of TRIPs to title 17 of the United States Code, see the second paragraph of endnote 8, chapter 9, supra. 2. Article 36 includes footnote 9 that states, “The term ‘right holder’ in this Section shall be understood as having the same meaning as the term ‘holder of the right’ in the IPIC Treaty.” The IPIC Treaty, which was signed in Washington, D.C., on May 26, 1989, is also known as the Treaty on Intellectual Property in Respect of Integrated Circuits. 3. See endnote 2, supra.
Copyright Law of the United States 11
Appendix L
Definition of “Berne Convention Work” The WIPO Copyright and Performances and Phonograms Treaties Implemen-tation Act of 1998 deleted the definition of “Berne Convention work” from sec-tion 101.1 Pub. L. No. 105-304, 112 Stat. 2861. The definition of Berne Convention work, as deleted, is as follows: A work is a “Berne Convention work” if— (1) in the case of an unpublished work, one or more of the authors is a national of a nation adhering to the Berne Convention, or in the case of a published work, one or more of the authors is a national of a nation adhering to the Berne Convention on the date of first publication; (2) the work was first published in a nation adhering to the Berne Con-vention, or was simultaneously first published in a nation adhering to the Berne convention and in a foreign nation that does not adhere to the Berne Convention; (3) in the case of an audiovisual work— (A) if one or more of the authors is a legal entity, that author has its headquarters in a nation adhering to the Berne Convention; or (B) if one or more of the authors is an individual, that author is domi-ciled, or has his or her habitual residence in, a nation adhering to the Berne Convention; or (4) in the case of a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, the building or structure is located in a nation adhering to the Berne Convention; or (5) in the case of an architectural work embodied in a building, such build-ing is erected in a country adhering to the Berne Convention. For purposes of paragraph (1), an author who is domiciled in or has his or her habitual residence in, a nation adhering to the Berne Convention is considered to be a national of that nation. For purposes of paragraph (2), a work is consid-ered to have been simultaneously published in two or more nations if its dates of publication are within 30 days of one another. Appendix L · Endnote 1. For the legislative history of the definition of “Berne Convention work,” see endnote 2, chapter 1, supra.
Copyright Law of the United States and Related Laws Part 2
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