Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, Circular 92

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Title: Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, Circular 92
Author: Library of Congress. Copyright Office, United States
Language: English
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*** Start of this LibraryBlog Digital Book "Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, Circular 92" ***

and

Related Laws Contained in Title 17 of the *United States Code*

Circular 92

------------------------------------------------------------------------
Contents

+ The Constitutional Provision Respecting Copyright
+ Preface
+ Chapter 1 - Subject Matter and Scope of Copyright
+ Chapter 2 - Copyright Ownership and Transfer
+ Chapter 3 - Duration of Copyright
+ Chapter 4 - Copyright Notice, Deposit, and Registration
+ Chapter 5 - Copyright Infringement and Remedies
+ Chapter 6 - Manufacturing Requirements and Importation
+ Chapter 7 - Copyright Office
+ Chapter 8 - Copyright Arbitration Royalty Panels
+ Chapter 9 - Protection of Semiconductor Chip Products
+ Chapter 10 - Digital Audio Recording Devices and Media
+ Chapter 11 - Sound Recordings and Music Videos
+ Chapter 12 - Copyright Protection and Management Systems
+ Chapter 13 - Protection of Original Designs
+ Appendix I. Transitional and Supplementary Provisions of the
Copyright Act of 1976
+ Appendix II. Berne Convention Implementation Act of 1988
+ Appendix III. Uruguay Round Agreements Act
+ Appendix IV. GATT/Trade-Related Aspects of Intellectual Property
Rights (TRIPs) Agreement, Part II, Section 6:
Layout-Designs (Topographies) of Integrated Circuits
+ Appendix V. Additional Provisions of the Digital Millennium
Copyright Act
+ Appendix VI. Definition of "Berne Convention Work"
+ Appendix VII. Selected Provisions of the U.S. Code Relating to
Copyright

------------------------------------------------------------------------

The Constitutional Provision Respecting Copyright

The Congress shall have Power ... To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries

(United States Constitution, Article I, Section 8)

------------------------------------------------------------------------

Preface

This volume contains the text of title 17 of the *United States Code*,
including all amendments enacted through the end of the second session
of the 106th Congress in 2000. It includes the Copyright Act of 1976 and
all subsequent amendments to copyright law; the Semiconductor Chip
Protection Act of 1984, as amended; and the Vessel Hull Design
Protection Act, as amended. The Copyright Office is responsible for
registering claims under all three.

The United States copyright law is contained in chapters 1 through 8 and
10 through 12 of title 17 of the *United States Code.* The Copyright Act
of 1976, which provides the basic framework for the current copyright
law, was enacted on October 19, 1976 as Pub. L. No. 94-553, 90 Stat.
2541. Listed below in chronological order of their enactment are
subsequent amendments to copyright law.

Chapters 9 and 13 of title 17 contain statutory design protection that
is independent of copyright protection. Chapter 9 of title 17 is the
Semiconductor Chip Protection Act of 1984 (SCPA), as amended. On
November 8, 1984, the SCPA was enacted as title III of Pub. L. No.
98-620, 98 Stat. 3335, 3347. Chapter 13 of title 17 is the Vessel Hull
Design Protection Act (VHDPA). It was enacted on October 28, 1998 as
title V of the Digital Millennium Copyright Act (DMCA), Pub. L. No.
105-304, 112 Stat. 2860, 2905. Subsequent amendments to the SCPA and the
VHDPA are also included in the list below, in chronological order of
their enactment.

For transitional and supplementary copyright provisions that were
enacted as part of the Copyright Act of 1976 and the DMCA, but which do
not amend title 17, see the Appendix.

Statutory Enactments Contained in Title 17 of the *United States Code*

+ [Copyright Act of 1976], Pub. L. No. 94-553, 90 Stat. 2541 (for the
general revision of copyright law, title 17 of the *United States Code*,
and for other purposes), October 19, 1976.

+ Legislative Branch Appropriation Act, 1978, Pub. L. No. 95-94, 91
Stat. 653, 682 (amending Sec. 203 and 708, title 17, *United States Code*,
regarding the deposit of moneys by the Register of Copyrights in the
Treasury of the United States), enacted August 5, 1977.

+ [Copyright Amendments], Pub. L. No. 95-598, 92 Stat. 2549, 2676
(amending Sec. 201(e), title 17, *United States Code*, to permit
involuntary transfer under the Bankruptcy Law), enacted November 6, 1978.

+ [Copyright Amendments], Pub. L. No. 96-517, 94 Stat. 3015, 3028
(amending Sec. 101 and 117, title 17, *United States Code*, regarding
computer programs), enacted December 12, 1980.

+ Piracy and Counterfeiting Amendments Act of 1982, Pub. L. No.
97-180, 96 Stat. 91, 93 (amending Sec. 506(a), title 17, *United States
Code* and title 18 of the *United States Code*), enacted May 24, 1982.

+ [Copyright Amendments], Pub. L. No. 97-215, 96 Stat. 178 (amending
the manufacturing clause in chapter 6, title 17, *United States Code*),
enacted July 13, 1982.

+ [Copyright Amendments], Pub. L. No. 97-366, 96 Stat. 1759 (amending
Sec. 110 and Sec. 708, title 17, *United States Code*, regarding the
redesignation of registration fees as filing fees, and the exemption
from copyright liability of certain performances of nondramatic literary
or musical works), enacted October 25, 1982.

+ Record Rental Amendment of 1984, Pub. L. No. 98-450, 98 Stat. 1727
(amending Sec. 109 and Sec. 115, title 17, *United States Code*, with
respect to rental, lease or lending of sound recordings), enacted
October 4, 1984.

+ Semiconductor Chip Protection Act of 1984, title III of Pub. L. No.
98-620, 98 Stat. 3335, 3347 (adding chapter 9, title 17, *United States
Code*, to provide design protection for semiconductor chips), November
8, 1984.

+ [Copyright Amendments], Pub. L. No. 99-397, 100 Stat. 848 (amending
Sec. 111 and Sec. 801, title 17, *United States Code*, to clarify the
definition of the local service area of a primary transmitter in the
case of a low power television station), enacted on August 27, 1986.

+ [Amendments to the Semiconductor Chip Protection Act of 1984], Pub.
L. No. 100-159, 101 Stat. 899 (amending chapter 9, title 17, *United
States Code*, regarding protection extended to semiconductor chip
products of foreign entities), enacted November 9, 1987.

+ Berne Convention Implementation Act of 1988, Pub. L. No. 100-568,
102 Stat. 2853, enacted October 31, 1988. (See the Appendix for certain
provisions of this Act that do not amend title 17 of the *United States
Code.*)

+ [Copyright Amendments], Pub. L. No. 100-617, 102 Stat. 3194
(extending for an additional eight-year period certain provisions of
title 17, *United States Code*, relating to the rental of sound
recordings and for other purposes), enacted November 5, 1988.

+ Satellite Home Viewer Act of 1988, title II of Pub. L. No. 100-667,
102 Stat. 3935, 3949, enacted November 16, 1988.

+ Judicial Improvements and Access to Justice Act, Pub. L. No.
100-702, 102 Stat. 4642, 4672 (amending Sec. 912, title 17, *United States
Code*), enacted November 19, 1988.

+ Copyright Fees and Technical Amendments Act of 1989, Pub. L. No.
101-318, 104 Stat. 287, enacted on July 3, 1990.

+ Copyright Royalty Tribunal Reform and Miscellaneous Pay Act of 1989,
Pub. L. No. 101-319, 104 Stat. 290, enacted July 3, 1990.

+ Copyright Remedy Clarification Act, Pub. L. No. 101-553, 104 Stat.
2749, enacted November 15, 1990.

+ Visual Artists Rights Act of 1990, title VI of the Judicial
Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5128,
enacted December 1, 1990.

+ Architectural Works Copyright Protection Act, title VII of the
Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089,
5133, enacted December 1, 1990.

+ Computer Software Rental Amendments Act of 1990, title VIII of the
Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat 5089,
5134, enacted December 1, 1990.

+ Semiconductor International Protection Extension Act of 1991, Pub.
L. No. 102-64, 105 Stat. 320 (amending chapter 9, title 17, *United
States Code*, regarding protection extended to semiconductor chip
products of foreign entities), enacted June 28, 1991.

+ Copyright Amendments Act of 1992, Pub. L. No. 102-307, 106 Stat.
264, 272 (amending title 17 of the *United States Code*, by deleting
subsection 108(i) in its entirety), enacted June 26, 1992.

+ Copyright Renewal Act of 1992, title I of the Copyright Amendments
Act of 1992, Pub. L. No. 102-307, 106 Stat. 264, enacted June 26, 1992.

+ [Copyright Amendments], Pub. L. No. 102-492, 106 Stat. 3145
(amending Sec. 107, title 17, *United States Code*, regarding unpublished
works), enacted October 24, 1992.

+ [Copyright Amendments], Pub. L. No. 102-561, 106 Stat. 4233
(amending Sec. 2319, title 18, *United States Code*, regarding criminal
penalties for copyright infringement), enacted October 28, 1992.

+ Audio Home Recording Act of 1992, Pub. L. No. 102-563, 106 Stat.
4237 (amending title 17 of the *United States Code* by adding a new
chapter 10), enacted October 28, 1992.

+ North American Free Trade Agreement Implementation Act, Pub. L. No.
103-182, 107 Stat. 2057, 2114 and 2115 (amending Sec. 109, title 17,
*United States Code*, and adding a new Sec. 104A), enacted December 8,
1993.

+ Copyright Royalty Tribunal Reform Act of 1993, Pub. L. No. 103-198,
107 Stat. 2304 (amending, *inter alia*, chapter 8, title 17, *United
States Code*), enacted December 17, 1993.

+ Satellite Home Viewer Act of 1994, Pub. L. No. 103-369, 108 Stat.
3477 (amending, *inter alia*, Sec. 111 and Sec. 119, title 17, *United
States Code*, relating to the definition of a local service area of a
primary transmitter), enacted October 18, 1994.

+ Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809,
4973 (amending, *inter alia*, Sec. 104A, title 17, *United States Code*,
and adding a new chapter 11), enacted December 8, 1994. (See the
Appendix for the text of certain provisions of this Act that do not
amend title 17 of the *United States Code.*)

+ Digital Performance Right in Sound Recordings Act of 1995, Pub. L.
No. 104-39, 109 Stat. 336 (amending, *inter alia*, Sec. 114 and Sec. 115,
title 17, *United States Code*), enacted November 1, 1995.

+ Anticounterfeiting Consumer Protection Act of 1996, Pub. L. No.
104-153, 110 Stat. 1386, 1388 (amending Sec. 603(c), title 17, *United
States Code* and Sec. 2318, title 18, *United States Code*), enacted
July 2, 1996.

+ Legislative Branch Appropriations Act, 1997, Pub. L. No. 104-197,
110 Stat. 2394, 2416 (amending*, inter alia*, title 17 of the *United
States Code*, by adding a new Sec. 121 concerning the limitation on
exclusive copyrights for literary works in specialized format for the
blind and disabled), enacted September 16, 1996.

+ [Copyright Amendments and Amendments to the Semiconductor Chip
Protection Act of 1984], Pub. L. No. 105-80, 111 Stat. 1529 (making
technical amendments to certain provisions of title 17, *United States
Code*), enacted November 13, 1997.

+ No Electronic Theft (NET) Act, Pub. L. No. 105-147, 111 Stat. 2678,
enacted December 16, 1997.

+ Sonny Bono Copyright Term Extension Act, title I of Pub. L. No.
105-298, 112 Stat. 2827 (amending chapter 3, title 17, *United States
Code*, to extend the term of copyright protection for most works to life
plus 70 years), enacted October 27, 1998.

+ Fairness in Music Licensing Act of 1998, title II of Pub. L. No.
105-298, 112 Stat. 2827, 2830 (amending, *inter alia*, Sec. 110, title 17,
*United States Code*, and adding Sec. 513 to provide a music licensing
exemption for food service and drinking establishments), enacted October
27, 1998.

+ Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat.
2860, 2887 (title IV amending Sec. 108, 112, 114, chapter 7 and chapter
8, title 17, *United States Code*), enacted October 28, 1998. (This Act
also contains four separate acts within titles I, II, III and V that
amended title 17 of the *United States Code.* These four acts are each
separately listed below. See the Appendix for additional provisions of
this Act that do not amend title 17 of the *United States Code.*)

+ WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998, title I of the Digital Millennium Copyright
Act, Pub. L. No. 105-304, 112 Stat. 2860, 2861 (amending title 17 of the
*United States Code*, *inter alia*, to add a new chapter 12 which
prohibits circumvention of copyright protection systems and provides
protection for copyright management information), enacted October 28,
1998.

+ Online Copyright Infringement Liability Limitation Act, title II of
the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat.
2860, 2877 (amending title 17 of the *United States Code*, to add a new
Sec. 512), enacted October 28, 1998.

+ Computer Maintenance Competition Assurance Act, title III of the
Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860,
2886 (amending Sec. 117, title 17, *United States Code*), enacted October
28, 1998.

+ Vessel Hull Design Protection Act, title V of the Digital Millennium
Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2905 (adding chapter
13, title 17, *United States Code*, to provide design protection for
vessel hulls), enacted October 28, 1998.

+ [Copyright Amendments and Amendments to the Vessel Hull Design
Protection Act], Pub. L. No. 106-44, 113 Stat. 221 (making technical
corrections to title 17 of the *United States Code*), enacted August 5,
1999.

+ Satellite Home Viewer Improvement Act of 1999, title I of the
Intellectual Property and Communications Omnibus Reform Act of 1999,
Pub. L. No. 106-113, 113 Stat. 1501, app. I (amending chapters 1 and 5
of title 17 of the *United States Code* to replace the Satellite Home
Viewer Act of 1994 and amending chapters 12 and 13 of title 17), enacted
November 29, 1999.

+ Digital Theft Deterrence and Copyright Damages Improvement Act of
1999, Pub. L. No. 106-160, 113 Stat 1774, (amending chapter 5 of title
17 of the *United States Code* to increase statutory damages for
copyright infringement), enacted December 9, 1999.

+ Work Made for Hire and Copyright Corrections Act of 2000, Pub. L.
No. 106-379, 114 Stat. 1444 (amending the definition of work made for
hire in title 17 of the *United States Code*, amending chapter 7 of
title 17, including changing the language regarding Copyright Office
fees, and making other technical and conforming amendments to title 17),
enacted October 27, 2000.

------------------------------------------------------------------------

Chapter 1

Subject Matter and Scope of Copyright

+ 101. Definitions
+ 102. Subject matter of copyright: In general
+ 103. Subject matter of copyright: Compilations and derivative works
+ 104. Subject matter of copyright: National origin
+ 104A. Copyright in restored works
+ 105. Subject matter of copyright: United States Government works
+ 106. Exclusive rights in copyrighted works
+ 106A. Rights of certain authors to attribution and integrity
+ 107. Limitations on exclusive rights: Fair use
+ 108. Limitations on exclusive rights: Reproduction by libraries and
archives
+ 109. Limitations on exclusive rights: Effect of transfer of
particular copy or phonorecord
+ 110. Limitations on exclusive rights: Exemption of certain
performances and displays
+ 111. Limitations on exclusive rights: Secondary transmissions
+ 112. Limitations on exclusive rights: Ephemeral recordings
+ 113. Scope of exclusive rights in pictorial, graphic, and sculptural
works
+ 114. Scope of exclusive rights in sound recordings
+ 115. Scope of exclusive rights in nondramatic musical works:
Compulsory license for making and distributing phonorecords
+ 116. Negotiated licenses for public performances by means of coin-
operated phonorecord players
+ 117. Limitations on exclusive rights: Computer programs [1]
+ 118. Scope of exclusive rights: Use of certain works in connection
with noncommercial broadcasting
+ 119. Limitations on exclusive rights: Secondary transmissions of
superstations and network stations for private home viewing
+ 120. Scope of exclusive rights in architectural works
+ 121. Limitations on exclusive rights: reproduction for blind or
other people with disabilities
+ 122. Limitations on exclusive rights; secondary transmissions by
satellite carriers within local market

Section 101. Definitions [2]

Except as otherwise provided in this title, as used in this title, the
following terms and their variant forms mean the following:

An "anonymous work" is a work on the copies or phonorecords of which no
natural person is identified as author.

An "architectural work" is the design of a building as embodied in any
tangible medium of expression, including a building, architectural
plans, or drawings. The work includes the overall form as well as the
arrangement and composition of spaces and elements in the design, but
does not include individual standard features. [3]

"Audiovisual works" are works that consist of a series of related images
which are intrinsically intended to be shown by the use of machines or
devices such as projectors, viewers, or electronic equipment, together
with accompanying sounds, if any, regardless of the nature of the
material objects, such as films or tapes, in which the works are
embodied.

The "Berne Convention" is the Convention for the Protection of Literary
and Artistic Works, signed at Berne, Switzerland, on September 9, 1886,
and all acts, protocols, and revisions thereto. [4]

The "best edition" of a work is the edition, published in the United
States at any time before the date of deposit, that the Library of
Congress determines to be most suitable for its purposes.

A person's "children" are that person's immediate offspring, whether
legitimate or not, and any children legally adopted by that person.

A "collective work" is a work, such as a periodical issue, anthology, or
encyclopedia, in which a number of contributions, constituting separate
and independent works in themselves, are assembled into a collective
whole.

A "compilation" is a work formed by the collection and assembling of
preexisting materials or of data that are selected, coordinated, or
arranged in such a way that the resulting work as a whole constitutes an
original work of authorship. The term "compilation" includes collective
works.

"Copies" are material objects, other than phonorecords, in which a work
is fixed by any method now known or later developed, and from which the
work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term "copies"
includes the material object, other than a phonorecord, in which the
work is first fixed.

"Copyright owner", with respect to any one of the exclusive rights
comprised in a copyright, refers to the owner of that particular right.

A work is "created" when it is fixed in a copy or phonorecord for the
first time; where a work is prepared over a period of time, the portion
of it that has been fixed at any particular time constitutes the work as
of that time, and where the work has been prepared in different
versions, each version constitutes a separate work.

A "derivative work" is a work based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which a
work may be recast, transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations, or other modifications,
which, as a whole, represent an original work of authorship, is a
"derivative work".

A "device", "machine", or "process" is one now known or later developed.

A "digital transmission" is a transmission in whole or in part in a
digital or other non-analog format. [5]

To "display" a work means to show a copy of it, either directly or by
means of a film, slide, television image, or any other device or process
or, in the case of a motion picture or other audiovisual work, to show
individual images nonsequentially.

An "establishment" is a store, shop, or any similar place of business
open to the general public for the primary purpose of selling goods or
services in which the majority of the gross square feet of space that is
nonresidential is used for that purpose, and in which nondramatic
musical works are performed publicly. [6]

A "food service or drinking establishment" is a restaurant, inn, bar,
tavern, or any other similar place of business in which the public or
patrons assemble for the primary purpose of being served food or drink,
in which the majority of the gross square feet of space that is
nonresidential is used for that purpose, and in which nondramatic
musical works are performed publicly. [7]

The term "financial gain" includes receipt, or expectation of receipt,
of anything of value, including the receipt of other copyrighted works.
[8]

A work is "fixed" in a tangible medium of expression when its embodiment
in a copy or phonorecord, by or under the authority of the author, is
sufficiently permanent or stable to permit it to be perceived,
reproduced, or otherwise communicated for a period of more than
transitory duration. A work consisting of sounds, images, or both, that
are being transmitted, is "fixed" for purposes of this title if a
fixation of the work is being made simultaneously with its transmission.

The "Geneva Phonograms Convention" is the Convention for the Protection
of Producers of Phonograms Against Unauthorized Duplication of Their
Phonograms, concluded at Geneva, Switzerland, on October 29, 1971. [9]

The "gross square feet of space" of an establishment means the entire
interior space of that establishment, and any adjoining outdoor space
used to serve patrons, whether on a seasonal basis or otherwise. [10]

The terms "including" and "such as" are illustrative and not limitative.

An "international agreement" is-

(1) the Universal Copyright Convention;
(2) the Geneva Phonograms Convention;
(3) the Berne Convention;
(4) the WTO Agreement;
(5) the WIPO Copyright Treaty; [11]
(6) the WIPO Performances and Phonograms Treaty; [12] and
(7) any other copyright treaty to which the United States is a party. [13]

A "joint work" is a work prepared by two or more authors with the
intention that their contributions be merged into inseparable or
interdependent parts of a unitary whole.

"Literary works" are works, other than audiovisual works, expressed in
words, numbers, or other verbal or numerical symbols or indicia,
regardless of the nature of the material objects, such as books,
periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in
which they are embodied.

"Motion pictures" are audiovisual works consisting of a series of
related images which, when shown in succession, impart an impression of
motion, together with accompanying sounds, if any.

To "perform" a work means to recite, render, play, dance, or act it,
either directly or by means of any device or process or, in the case of
a motion picture or other audiovisual work, to show its images in any
sequence or to make the sounds accompanying it audible.

A "performing rights society" is an association, corporation, or other
entity that licenses the public performance of nondramatic musical works
on behalf of copyright owners of such works, such as the American
Society of Composers, Authors and Publishers (ASCAP), Broadcast Music,
Inc. (BMI), and SESAC, Inc. [14]

"Phonorecords" are material objects in which sounds, other than those
accompanying a motion picture or other audiovisual work, are fixed by
any method now known or later developed, and from which the sounds can
be perceived, reproduced, or otherwise communicated, either directly or
with the aid of a machine or device. The term "phonorecords" includes
the material object in which the sounds are first fixed.

"Pictorial, graphic, and sculptural works" include two-dimensional and
three-dimensional works of fine, graphic, and applied art, photographs,
prints and art reproductions, maps, globes, charts, diagrams, models,
and technical drawings, including architectural plans. Such works shall
include works of artistic craftsmanship insofar as their form but not
their mechanical or utilitarian aspects are concerned; the design of a
useful article, as defined in this section, shall be considered a
pictorial, graphic, or sculptural work only if, and only to the extent
that, such design incorporates pictorial, graphic, or sculptural
features that can be identified separately from, and are capable of
existing independently of, the utilitarian aspects of the article. [15]

For purposes of section 513, a "proprietor" is an individual,
corporation, partnership, or other entity, as the case may be, that owns
an establishment or a food service or drinking establishment, except
that no owner or operator of a radio or television station licensed by
the Federal Communications Commission, cable system or satellite
carrier, cable or satellite carrier service or programmer, provider of
online services or network access or the operator of facilities
therefor, telecommunications company, or any other such audio or
audiovisual service or programmer now known or as may be developed in
the future, commercial subscription music service, or owner or operator
of any other transmission service, shall under any circumstances be
deemed to be a proprietor. [16]

A "pseudonymous work" is a work on the copies or phonorecords of which
the author is identified under a fictitious name.

"Publication" is the distribution of copies or phonorecords of a work to
the public by sale or other transfer of ownership, or by rental, lease,
or lending. The offering to distribute copies or phonorecords to a group
of persons for purposes of further distribution, public performance, or
public display, constitutes publication. A public performance or display
of a work does not of itself constitute publication.

To perform or display a work "publicly" means-

(1) to perform or display it at a place open to the public or at any
place where a substantial number of persons outside of a normal circle
of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the
work to a place specified by clause (1) or to the public, by means of
any device or process, whether the members of the public capable of
receiving the performance or display receive it in the same place or in
separate places and at the same time or at different times.

"Registration", for purposes of sections 205(c)(2), 405, 406, 410(d),
411, 412, and 506(e), means a registration of a claim in the original or
the renewed and extended term of copyright. [17]

"Sound recordings" are works that result from the fixation of a series
of musical, spoken, or other sounds, but not including the sounds
accompanying a motion picture or other audiovisual work, regardless of
the nature of the material objects, such as disks, tapes, or other
phonorecords, in which they are embodied.

"State" includes the District of Columbia and the Commonwealth of Puerto
Rico, and any territories to which this title is made applicable by an
Act of Congress.

A "transfer of copyright ownership" is an assignment, mortgage,
exclusive license, or any other conveyance, alienation, or hypothecation
of a copyright or of any of the exclusive rights comprised in a
copyright, whether or not it is limited in time or place of effect, but
not including a nonexclusive license.

A "transmission program" is a body of material that, as an aggregate,
has been produced for the sole purpose of transmission to the public in
sequence and as a unit.

To "transmit" a performance or display is to communicate it by any
device or process whereby images or sounds are received beyond the place
from which they are sent.

A "treaty party" is a country or intergovernmental organization other
than the United States that is a party to an international agreement. [18]

The "United States", when used in a geographical sense, comprises the
several States, the District of Columbia and the Commonwealth of Puerto
Rico, and the organized territories under the jurisdiction of the United
States Government.

For purposes of section 411, a work is a "United States work" only if:

(1) in the case of a published work, the work is first published-

(A) in the United States;

(B) simultaneously in the United States and another treaty party or
parties, whose law grants a term of copyright protection that is the
same as or longer than the term provided in the United States;

(D) in a foreign nation that is not a treaty party, and all of the
authors of the work are nationals, domiciliaries, or habitual residents
of, or in the case of an audiovisual work legal entities with
headquarters in, the United States;

(2) in the case of an unpublished work, all the authors of the work are
nationals, domiciliaries, or habitual residents of the United States,
or, in the case of an unpublished audiovisual work, all the authors are
legal entities with headquarters in the United States; or

(3) in the case of a pictorial, graphic, or sculptural work incorporated
in a building or structure, the building or structure is located in the
United States. [19]

A "useful article" is an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the article or
to convey information. An article that is normally a part of a useful
article is considered a "useful article".

The author's "widow" or "widower" is the author's surviving spouse under
the law of the author's domicile at the time of his or her death,
whether or not the spouse has later remarried.

The "WIPO Copyright Treaty" is the WIPO Copyright Treaty concluded at
Geneva, Switzerland, on December 20, 1996. [20]

The "WIPO Performances and Phonograms Treaty" is the WIPO Performances
and Phonograms Treaty concluded at Geneva, Switzerland, on December 20,
1996. [21]

A "work of visual art" is-

(1) a painting, drawing, print or sculpture, existing in a single copy,
in a limited edition of 200 copies or fewer that are signed and
consecutively numbered by the author, or, in the case of a sculpture, in
multiple cast, carved, or fabricated sculptures of 200 or fewer that are
consecutively numbered by the author and bear the signature or other
identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only,
existing in a single copy that is signed by the author, or in a limited
edition of 200 copies or fewer that are signed and consecutively
numbered by the author.

A work of visual art does not include-

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model,
applied art, motion picture or other audiovisual work, book, magazine,
newspaper, periodical, data base, electronic information service,
electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive,
covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);

(B) any work made for hire; or

A "work of the United States Government" is a work prepared by an
officer or employee of the United States Government as part of that
person's official duties.

A "work made for hire" is-

(1) a work prepared by an employee within the scope of his or her
employment; or

(2) a work specially ordered or commissioned for use as a contribution
to a collective work, as a part of a motion picture or other audiovisual
work, as a translation, as a supplementary work, as a compilation, as an
instructional text, as a test, as answer material for a test, or as an
atlas, if the parties expressly agree in a written instrument signed by
them that the work shall be considered a work made for hire. For the
purpose of the foregoing sentence, a "supplementary work" is a work
prepared for publication as a secondary adjunct to a work by another
author for the purpose of introducing, concluding, illustrating,
explaining, revising, commenting upon, or assisting in the use of the
other work, such as forewords, afterwords, pictorial illustrations,
maps, charts, tables, editorial notes, musical arrangements, answer
material for tests, bibliographies, appendixes, and indexes, and an
"instructional text" is a literary, pictorial, or graphic work prepared
for publication and with the purpose of use in systematic instructional
activities.

In determining whether any work is eligible to be considered a work made
for hire under paragraph (2), neither the amendment contained in section
1011(d) of the Intellectual Property and Communications Omnibus Reform
Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor
the deletion of the words added by that amendment--

(A) shall be considered or otherwise given any legal significance, or

(B) shall be interpreted to indicate congressional approval or
disapproval of, or acquiescence in, any judicial determination,

by the courts or the Copyright Office. Paragraph (2) shall be
interpreted as if both section 2(a)(1) of the Work Made For Hire and
Copyright Corrections Act of 2000 and section 1011(d) of the
Intellectual Property and Communications Omnibus Reform Act of 1999, as
enacted by section 1000(a)(9) of Public Law 106-113, were never enacted,
and without regard to any inaction or awareness by the Congress at any
time of any judicial determinations. [23]

The terms "WTO Agreement" and "WTO member country" have the meanings
given those terms in paragraphs (9) and (10), respectively, of section 2
of the Uruguay Round Agreements Act. {24}

A "computer program" is a set of statements or instructions to be used
directly or indirectly in a computer in order to bring about a certain
result. [25]

Section 102. Subject matter of copyright: In general [26]

(a) Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of expression,
now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid
of a machine or device. Works of authorship include the following
categories:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of
authorship 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.

Section 103. Subject matter of copyright: Compilations and derivative
works

(a) The subject matter of copyright as specified by section 102 includes
compilations and derivative works, but protection for a work employing
preexisting material in which copyright subsists does not extend to any
part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to
the material contributed by the author of such work, as distinguished
from the preexisting material employed in the work, and does not imply
any exclusive right in the preexisting material. The copyright in such
work is independent of, and does not affect or enlarge the scope,
duration, ownership, or subsistence of, any copyright protection in the
preexisting material.

Section 104. Subject matter of copyright: National origin [27]

(a) Unpublished Works. The works specified by sections 102 and 103,
while unpublished, are subject to protection under this title without
regard to the nationality or domicile of the author.

(b) Published Works. The works specified by sections 102 and 103, when
published, are subject to protection under this title if-

(1) on the date of first publication, one or more of the authors is a
national or domiciliary of the United States, or is a national,
domiciliary, or sovereign authority of a treaty party, or is a stateless
person, wherever that person may be domiciled; or

(2) the work is first published in the United States or in a foreign
nation that, on the date of first publication, is a treaty party; or

(3) the work is a sound recording that was first fixed in a treaty
party; or

(4) the work is a pictorial, graphic, or sculptural work that is
incorporated in a building or other structure, or an architectural work
that is embodied in a building and the building or structure is located
in the United States or a treaty party; or

(5) the work is first published by the United Nations or any of its
specialized agencies, or by the Organization of American States; or

(6) the work comes within the scope of a Presidential proclamation.
Whenever the President finds that a particular foreign nation extends,
to works by authors who are nationals or domiciliaries of the United
States or to works that are first published in the United States,
copyright protection on substantially the same basis as that on which
the foreign nation extends protection to works of its own nationals and
domiciliaries and works first published in that nation, the President
may by proclamation extend protection under this title to works of which
one or more of the authors is, on the date of first publication, a
national, domiciliary, or sovereign authority of that nation, or which
was first published in that nation. The President may revise, suspend,
or revoke any such proclamation or impose any conditions or limitations
on protection under a proclamation.

For purposes of paragraph (2), a work that is published in the United
States or a treaty party within 30 days after publication in a foreign
nation that is not a treaty party shall be considered to be first
published in the United States or such treaty party, as the case may be.

(c) Effect of Berne Convention. No right or interest in a work eligible
for protection under this title may be claimed by virtue of, or in
reliance upon, the provisions of the Berne Convention, or the adherence
of the United States thereto. Any rights in a work eligible for
protection under this title that derive from this title, other Federal
or State statutes, or the common law, shall not be expanded or reduced
by virtue of, or in reliance upon, the provisions of the Berne
Convention, or the adherence of the United States thereto.

(d) Effect of Phonograms Treaties. Notwithstanding the provisions of
subsection (b), no works other than sound recordings shall be eligible
for protection under this title solely by virtue of the adherence of the
United States to the Geneva Phonograms Convention or the WIPO
Performances and Phonograms Treaty. [28]

Section 104A. Copyright in restored works [29]

(a) Automatic Protection and Term.-

(1) Term.-

(A) Copyright subsists, in accordance with this section, in restored
works, and vests automatically on the date of restoration.

(B) Any work in which copyright is restored under this section shall
subsist for the remainder of the term of copyright that the work would
have otherwise been granted in the United States if the work never
entered the public domain in the United States.

(2) Exception. Any work in which the copyright was ever owned or
administered by the Alien Property Custodian and in which the restored
copyright would be owned by a government or instrumentality thereof, is
not a restored work.

(b) Ownership of Restored Copyright. A restored work vests initially in
the author or initial rightholder of the work as determined by the law
of the source country of the work.

(c) Filing of Notice of Intent to Enforce Restored Copyright Against
Reliance Parties. On or after the date of restoration, any person who
owns a copyright in a restored work or an exclusive right therein may
file with the Copyright Office a notice of intent to enforce that
person's copyright or exclusive right or may serve such a notice
directly on a reliance party. Acceptance of a notice by the Copyright
Office is effective as to any reliance parties but shall not create a
presumption of the validity of any of the facts stated therein. Service
on a reliance party is effective as to that reliance party and any other
reliance parties with actual knowledge of such service and of the
contents of that notice.

(d) Remedies for Infringement of Restored Copyrights.-

(1) Enforcement of Copyright in Restored Works in the Absence of a
Reliance Party. As against any party who is not a reliance party, the
remedies provided in chapter 5 of this title shall be available on or
after the date of restoration of a restored copyright with respect to an
act of infringement of the restored copyright that is commenced on or
after the date of restoration.

(2) Enforcement of Copyright in Restored Works as Against Reliance
Parties. As against a reliance party, except to the extent provided in
paragraphs (3) and (4), the remedies provided in chapter 5 of this title
shall be available, with respect to an act of infringement of a restored
copyright, on or after the date of restoration of the restored copyright
if the requirements of either of the following subparagraphs are met:

(A)(i) The owner of the restored copyright (or such owner's agent) or
the owner of an exclusive right therein (or such owner's agent) files
with the Copyright Office, during the 24-month period beginning on the
date of restoration, a notice of intent to enforce the restored
copyright; and

(ii)(I) the act of infringement commenced after the end of the 12-month
period beginning on the date of publication of the notice in the Federal
Register;

(II) the act of infringement commenced before the end of the 12-month
period described in subclause (I) and continued after the end of that
12-month period, in which case remedies shall be available only for
infringement occurring after the end of that 12-month period; or

(III) copies or phonorecords of a work in which copyright has been
restored under this section are made after publication of the notice of
intent in the Federal Register.

(B)(i) The owner of the restored copyright (or such owner's agent) or
the owner of an exclusive right therein (or such owner's agent) serves
upon a reliance party a notice of intent to enforce a restored
copyright; and

(ii)(I) the act of infringement commenced after the end of the 12-month
period beginning on the date the notice of intent is received;

(II) the act of infringement commenced before the end of the 12-month
period described in subclause (I) and continued after the end of that
12-month period, in which case remedies shall be available only for the
infringement occurring after the end of that 12-month period; or

(III) copies or phonorecords of a work in which copyright has been
restored under this section are made after receipt of the notice of
intent.

In the event that notice is provided under both subparagraphs (A) and
(B), the 12-month period referred to in such subparagraphs shall run
from the earlier of publication or service of notice.

(3) Existing Derivative Works.-

(A) In the case of a derivative work that is based upon a restored work
and is created-

(i) before the date of the enactment of the Uruguay Round Agreements
Act, if the source country of the restored work is an eligible country
on such date, or

(ii) before the date on which the source country of the restored work
becomes an eligible country, if that country is not an eligible country
on such date of enactment, a reliance party may continue to exploit that
derivative work for the duration of the restored copyright if the
reliance party pays to the owner of the restored copyright reasonable
compensation for conduct which would be subject to a remedy for
infringement but for the provisions of this paragraph.

(B) In the absence of an agreement between the parties, the amount of
such compensation shall be determined by an action in United States
district court, and shall reflect any harm to the actual or potential
market for or value of the restored work from the reliance party's
continued exploitation of the work, as well as compensation for the
relative contributions of expression of the author of the restored work
and the reliance party to the derivative work.

(4) Commencement of Infringement for Reliance Parties. For purposes of
section 412, in the case of reliance parties, infringement shall be
deemed to have commenced before registration when acts which would have
constituted infringement had the restored work been subject to copyright
were commenced before the date of restoration.

(e) Notices of Intent to Enforce a Restored Copyright.-

(1) Notices of Intent Filed With the Copyright Office.-

(A)(i) A notice of intent filed with the Copyright Office to enforce a
restored copyright shall be signed by the owner of the restored
copyright or the owner of an exclusive right therein, who files the
notice under subsection (d)(2)(A)(i) (hereafter in this paragraph
referred to as the "owner"), or by the owner's agent, shall identify the
title of the restored work, and shall include an English translation of
the title and any other alternative titles known to the owner by which
the restored work may be identified, and an address and telephone number
at which the owner may be contacted. If the notice is signed by an
agent, the agency relationship must have been constituted in a writing
signed by the owner before the filing of the notice. The Copyright
Office may specifically require in regulations other information to be
included in the notice, but failure to provide such other information
shall not invalidate the notice or be a basis for refusal to list the
restored work in the Federal Register.

(ii) If a work in which copyright is restored has no formal title, it
shall be described in the notice of intent in detail sufficient to
identify it.

(iii) Minor errors or omissions may be corrected by further notice at
any time after the notice of intent is filed. Notices of corrections for
such minor errors or omissions shall be accepted after the period
established in subsection (d)(2)(A)(i). Notices shall be published in
the Federal Register pursuant to subparagraph (B).

(B)(i) The Register of Copyrights shall publish in the Federal Register,
commencing not later than 4 months after the date of restoration for a
particular nation and every 4 months thereafter for a period of 2 years,
lists identifying restored works and the ownership thereof if a notice
of intent to enforce a restored copyright has been filed.

(ii) Not less than 1 list containing all notices of intent to enforce
shall be maintained in the Public Information Office of the Copyright
Office and shall be available for public inspection and copying during
regular business hours pursuant to sections 705 and 708.

(C) The Register of Copyrights is authorized to fix reasonable fees
based on the costs of receipt, processing, recording, and publication of
notices of intent to enforce a restored copyright and corrections
thereto.

(D)(i) Not later than 90 days before the date the Agreement on
Trade-Related Aspects of Intellectual Property referred to in section
101(d) (15) of the Uruguay Round Agreements Act enters into force with
respect to the United States, the Copyright Office shall issue and
publish in the Federal Register regulations governing the filing under
this subsection of notices of intent to enforce a restored copyright.

(ii) Such regulations shall permit owners of restored copyrights to file
simultaneously for registration of the restored copyright.

(2) Notices of Intent Served on a Reliance Party.-

(A) Notices of intent to enforce a restored copyright may be served on a
reliance party at any time after the date of restoration of the restored
copyright.

(B) Notices of intent to enforce a restored copyright served on a
reliance party shall be signed by the owner or the owner's agent, shall
identify the restored work and the work in which the restored work is
used, if any, in detail sufficient to identify them, and shall include
an English translation of the title, any other alternative titles known
to the owner by which the work may be identified, the use or uses to
which the owner objects, and an address and telephone number at which
the reliance party may contact the owner. If the notice is signed by an
agent, the agency relationship must have been constituted in writing and
signed by the owner before service of the notice.

(3) Effect of Material False Statements. Any material false statement
knowingly made with respect to any restored copyright identified in any
notice of intent shall make void all claims and assertions made with
respect to such restored copyright.

(f) Immunity From Warranty and Related Liability.-

(1) In General. Any person who warrants, promises, or guarantees that
a work does not violate an exclusive right granted in section 106 shall
not be liable for legal, equitable, arbitral, or administrative relief
if the warranty, promise, or guarantee is breached by virtue of the
restoration of copyright under this section, if such warranty, promise,
or guarantee is made before January 1, 1995.

(2) Performances. No person shall be required to perform any act if
such performance is made infringing by virtue of the restoration of
copyright under the provisions of this section, if the obligation to
perform was undertaken before January 1, 1995.

(g) Proclamation of Copyright Restoration. Whenever the President finds
that a particular foreign nation extends, to works by authors who are
nationals or domiciliaries of the United States, restored copyright
protection on substantially the same basis as provided under this
section, the President may by proclamation extend restored protection
provided under this section to any work

(1) of which one or more of the authors is, on the date of first
publication, a national, domiciliary, or sovereign authority of that
nation; or

(2) which was first published in that nation.

The President may revise, suspend, or revoke any such proclamation or
impose any conditions or limitations on protection under such a
proclamation.

(h) Definitions. For purposes of this section and section 109(a):

(1) The term "date of adherence or proclamation" means the earlier of
the date on which a foreign nation which, as of the date the WTO
Agreement enters into force with respect to the United States, is not a
nation adhering to the Berne Convention or a WTO member country,
becomes-

(A) a nation adhering to the Berne Convention;

(B) a WTO member country;

(D) a nation adhering to the WIPO Performances and Phonograms Treaty; [31]
or

(E) subject to a Presidential proclamation under subsection (g).

(2) The "date of restoration" of a restored copyright is-

(A) January 1, 1996, if the source country of the restored work is a
nation adhering to the Berne Convention or a WTO member country on such
date, or

(B) the date of adherence or proclamation, in the case of any other
source country of the restored work.

(3) The term "eligible country" means a nation, other than the United
States, that

(A) becomes a WTO member country after the date of the enactment of the
Uruguay Round Agreements Act;

(B) on such date of enactment is, or after such date of enactment
becomes, a nation adhering to the Berne Convention;

(D) adheres to the WIPO Performances and Phonograms Treaty; [33] or

(E) after such date of enactment becomes subject to a proclamation under
subsection (g).

(4) The term "reliance party" means any person who-

(A) with respect to a particular work, engages in acts, before the
source country of that work becomes an eligible country, which would
have violated section 106 if the restored work had been subject to
copyright protection, and who, after the source country becomes an
eligible country, continues to engage in such acts;

(B) before the source country of a particular work becomes an eligible
country, makes or acquires 1 or more copies or phonorecords of that
work; or

(C) as the result of the sale or other disposition of a derivative work
covered under subsection (d)(3), or significant assets of a person
described in subparagraph (A) or (B), is a successor, assignee, or
licensee of that person.

(5) The term "restored copyright" means copyright in a restored work
under this section.

(6) The term "restored work" means an original work of authorship that-

(A) is protected under subsection (a);

(B) is not in the public domain in its source country through expiration
of term of protection;

(i) noncompliance with formalities imposed at any time by United States
copyright law, including failure of renewal, lack of proper notice, or
failure to comply with any manufacturing requirements;

(ii) lack of subject matter protection in the case of sound recordings
fixed before February 15, 1972; or

(iii) lack of national eligibility;

(D) has at least one author or rightholder who was, at the time the work
was created, a national or domiciliary of an eligible country, and if
published, was first published in an eligible country and not published
in the United States during the 30-day period following publication in
such eligible country; and

(E) if the source country for the work is an eligible country solely by
virtue of its adherence to the WIPO Performances and Phonograms Treaty,
is a sound recording. [34]

(7) The term "rightholder" means the person-

(A) who, with respect to a sound recording, first fixes a sound
recording with authorization, or

(B) who has acquired rights from the person described in subparagraph
(A) by means of any conveyance or by operation of law.

(8) The "source country" of a restored work is-

(A) a nation other than the United States;

(B) in the case of an unpublished work-

(i) the eligible country in which the author or rightholder is a
national or domiciliary, or, if a restored work has more than 1 author
or rightholder, of which the majority of foreign authors or rightholders
are nationals or domiciliaries; or

(ii) if the majority of authors or rightholders are not foreign, the
nation other than the United States which has the most significant
contacts with the work; and

(i) the eligible country in which the work is first published, or

(ii) if the restored work is published on the same day in 2 or more
eligible countries, the eligible country which has the most significant
contacts with the work.

Section 105. Subject matter of copyright: United States Government
works [35]

Copyright protection under this title is not available for any work of
the United States Government, but the United States Government is not
precluded from receiving and holding copyrights transferred to it by
assignment, bequest, or otherwise.

Section 106. Exclusive rights in copyrighted works [36]

Subject to sections 107 through 121, the owner of copyright under this
title has the exclusive rights to do and to authorize any of the
following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending;

(4) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works, to perform
the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the
individual images of a motion picture or other audiovisual work, to
display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission.

Section 106A. Rights of certain authors to attribution and integrity [37]

(a) Rights of Attribution and Integrity. Subject to section 107 and
independent of the exclusive rights provided in section 106, the author
of a work of visual art

(1) shall have the right-

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of
visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the
author of the work of visual art in the event of a distortion,
mutilation, or other modification of the work which would be prejudicial
to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113(d), shall have
the right-

(A) to prevent any intentional distortion, mutilation, or other
modification of that work which would be prejudicial to his or her honor
or reputation, and any intentional distortion, mutilation, or
modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any
intentional or grossly negligent destruction of that work is a violation
of that right.

(b) Scope and Exercise of Rights. Only the author of a work of visual
art has the rights conferred by subsection (a) in that work, whether or
not the author is the copyright owner. The authors of a joint work of
visual art are coowners of the rights conferred by subsection (a) in
that work.

(c) Exceptions.- (1) The modification of a work of visual art which is
the result of the passage of time or the inherent nature of the
materials is not a distortion, mutilation, or other modification
described in subsection (a)(3)(A).

(2) The modification of a work of visual art which is the result of
conservation, or of the public presentation, including lighting and
placement, of the work is not a destruction, distortion, mutilation, or
other modification described in subsection (a)(3) unless the
modification is caused by gross negligence.

(3) The rights described in paragraphs (1) and (2) of subsection (a)
shall not apply to any reproduction, depiction, portrayal, or other use
of a work in, upon, or in any connection with any item described in
subparagraph (A) or (B) of the definition of "work of visual art" in
section 101, and any such reproduction, depiction, portrayal, or other
use of a work is not a destruction, distortion, mutilation, or other
modification described in paragraph (3) of subsection (a).

(d) Duration of Rights.- (1) With respect to works of visual art created
on or after the effective date set forth in section 610(a) of the Visual
Artists Rights Act of 1990, the rights conferred by subsection (a) shall
endure for a term consisting of the life of the author.

(2) With respect to works of visual art created before the effective
date set forth in section 610(a) of the Visual Artists Rights Act of
1990, but title to which has not, as of such effective date, been
transferred from the author, the rights conferred by subsection (a)
shall be coextensive with, and shall expire at the same time as, the
rights conferred by section 106.

(3) In the case of a joint work prepared by two or more authors, the
rights conferred by subsection (a) shall endure for a term consisting of
the life of the last surviving author.

(4) All terms of the rights conferred by subsection (a) run to the end
of the calendar year in which they would otherwise expire.

(e) Transfer and Waiver.- (1) The rights conferred by subsection (a) may
not be transferred, but those rights may be waived if the author
expressly agrees to such waiver in a written instrument signed by the
author. Such instrument shall specifically identify the work, and uses
of that work, to which the waiver applies, and the waiver shall apply
only to the work and uses so identified. In the case of a joint work
prepared by two or more authors, a waiver of rights under this paragraph
made by one such author waives such rights for all such authors.

(2) Ownership of the rights conferred by subsection (a) with respect to
a work of visual art is distinct from ownership of any copy of that
work, or of a copyright or any exclusive right under a copyright in that
work. Transfer of ownership of any copy of a work of visual art, or of a
copyright or any exclusive right under a copyright, shall not constitute
a waiver of the rights conferred by subsection (a). Except as may
otherwise be agreed by the author in a written instrument signed by the
author, a waiver of the rights conferred by subsection (a) with respect
to a work of visual art shall not constitute a transfer of ownership of
any copy of that work, or of ownership of a copyright or of any
exclusive right under a copyright in that work.

Section 107. Limitations on exclusive rights: Fair use [38]

Notwithstanding the provisions of sections 106 and 106A, the fair use of
a copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a work
in any particular case is a fair use the factors to be considered shall
include-

(1) the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the
copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above
factors.

Section 108. Limitations on exclusive rights: Reproduction by libraries
and archives [39]

(a) Except as otherwise provided in this title and notwithstanding the
provisions of section 106, it is not an infringement of copyright for a
library or archives, or any of its employees acting within the scope of
their employment, to reproduce no more than one copy or phonorecord of a
work, except as provided in subsections (b) and (c), or to distribute
such copy or phonorecord, under the conditions specified by this
section, if-

(1) the reproduction or distribution is made without any purpose of
direct or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the
public, or (ii) 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; and

(3) the reproduction or distribution of the work includes a notice of
copyright that appears on the copy or phonorecord that is reproduced
under the provisions of this section, or includes a legend stating that
the work may be protected by copy-right if no such notice can be found
on the copy or phonorecord that is reproduced under the provisions of
this section.

(b) The rights of reproduction and distribution under this section apply
to three copies or phonorecords of an unpublished work duplicated solely
for purposes of preservation and security or for deposit for research
use in another library or archives of the type described by clause (2)
of subsection (a), if-

(1) the copy or phonorecord reproduced is currently in the collections
of the library or archives; and

(2) any such copy or phonorecord that is reproduced in digital format is
not otherwise distributed in that format and is not made available to
the public in that format outside the premises of the library or
archives.

(c) The right of reproduction under this section applies to three copies
or phonorecords of a published work duplicated solely for the purpose of
replacement of a copy or phonorecord that is damaged, deteriorating,
lost, or stolen, or if the existing format in which the work is stored
has become obsolete, if-

(1) the library or archives has, after a reasonable effort, determined
that an unused replacement cannot be obtained at a fair price; and

(2) any such copy or phonorecord that is reproduced in digital format is
not made available to the public in that format outside the premises of
the library or archives in lawful possession of such copy.

For purposes of this subsection, a format shall be considered obsolete
if the machine or device necessary to render perceptible a work stored
in that format is no longer manufactured or is no longer reasonably
available in the commercial marketplace.

(d) The rights of reproduction and distribution under this section apply
to a copy, made from the collection of a library or archives where the
user makes his or her request or from that of another library or
archives, of no more than one article or other contribution to a
copyrighted collection or periodical issue, or to a copy or phonorecord
of a small part of any other copyrighted work, if-

(1) the copy or phonorecord becomes the property of the user, and the
library or archives has had no notice that the copy or phonorecord would
be used for any purpose other than private study, scholarship, or
research; and

(2) the library or archives displays prominently, at the place where
orders are accepted, and includes on its order form, a warning of
copyright in accordance with requirements that the Register of
Copyrights shall prescribe by regulation.

(e) The rights of reproduction and distribution under this section apply
to the entire work, or to a substantial part of it, made from the
collection of a library or archives where the user makes his or her
request or from that of another library or archives, if the library or
archives has first determined, on the basis of a reasonable
investigation, that a copy or phonorecord of the copyrighted work cannot
be obtained at a fair price, if-

(f) Nothing in this section-

(1) shall be construed to impose liability for copyright infringement
upon a library or archives or its employees for the unsupervised use of
reproducing equipment located on its premises: *Provided*, That such
equipment displays a notice that the making of a copy may be subject to
the copyright law;

(2) excuses a person who uses such reproducing equipment or who requests
a copy or phonorecord under subsection (d) from liability for copyright
infringement for any such act, or for any later use of such copy or
phonorecord, if it exceeds fair use as provided by section 107;

(3) shall be construed to limit the reproduction and distribution by
lending of a limited number of copies and excerpts by a library or
archives of an audiovisual news program, subject to clauses (1), (2),
and (3) of subsection (a); or

(4) in any way affects the right of fair use as provided by section 107,
or any contractual obligations assumed at any time by the library or
archives when it obtained a copy or phonorecord of a work in its
collections.

(g) The rights of reproduction and distribution under this section
extend to the isolated and unrelated reproduction or distribution of a
single copy or phonorecord of the same material on separate occasions,
but do not extend to cases where the library or archives, or its
employee-

(1) is aware or has substantial reason to believe that it is engaging in
the related or concerted reproduction or distribution of multiple copies
or phonorecords of the same material, whether made on one occasion or
over a period of time, and whether intended for aggregate use by one or
more individuals or for separate use by the individual members of a
group; or

(2) engages in the systematic reproduction or distribution of single or
multiple copies or phonorecords of material described in subsection (d):
*Provided*, That nothing in this clause prevents a library or archives
from participating in interlibrary arrangements that do not have, as
their purpose or effect, that the library or archives receiving such
copies or phonorecords for distribution does so in such aggregate
quantities as to substitute for a subscription to or purchase of such
work.

(h)(1) For purposes of this section, during the last 20 years of any
term of copyright of a published work, a library or archives, including
a nonprofit educational institution that functions as such, may
reproduce, distribute, display, or perform in facsimile or digital form
a copy or phonorecord of such work, or portions thereof, for purposes of
preservation, scholarship, or research, if such library or archives has
first determined, on the basis of a reasonable investigation, that none
of the conditions set forth in subparagraphs (A), (B), and (C) of
paragraph (2) apply.

(2) No reproduction, distribution, display, or performance is authorized
under this subsection if=

(A) the work is subject to normal commercial exploitation;

(B) a copy or phonorecord of the work can be obtained at a reasonable
price; or

(C) the copyright owner or its agent provides notice pursuant to
regulations promulgated by the Register of Copyrights that either of the
conditions set forth in subparagraphs (A) and (B) applies.

(3) The exemption provided in this subsection does not apply to any
subsequent uses by users other than such library or archives.

(i) The rights of reproduction and distribution under this section do
not apply to a musical work, a pictorial, graphic or sculptural work, or
a motion picture or other audiovisual work other than an audiovisual
work dealing with news, except that no such limitation shall apply with
respect to rights granted by subsections (b) and (c), or with respect to
pictorial or graphic works published as illustrations, diagrams, or
similar adjuncts to works of which copies are reproduced or distributed
in accordance with subsections (d) and (e).

Section 109. Limitations on exclusive rights: Effect of transfer of
particular copy or phonorecord [40]

(a) Notwithstanding the provisions of section 106(3), the owner of a
particular copy or phonorecord lawfully made under this title, or any
person authorized by such owner, is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the possession of
that copy or phonorecord. Notwithstanding the preceding sentence, copies
or phonorecords of works subject to restored copyright under section
104A that are manufactured before the date of restoration of copyright
or, with respect to reliance parties, before publication or service of
notice under section 104A(e), may be sold or otherwise disposed of
without the authorization of the owner of the restored copyright for
purposes of direct or indirect commercial advantage only during the
12-month period beginning on-

(1) the date of the publication in the Federal Register of the notice of
intent filed with the Copyright Office under section 104A(d)(2)(A), or

(2) the date of the receipt of actual notice served under section
104A(d)(2)(B), whichever occurs first.

(b)(1)(A) Notwithstanding the provisions of subsection (a), unless
authorized by the owners of copyright in the sound recording or the
owner of copyright in a computer program (including any tape, disk, or
other medium embodying such program), and in the case of a sound
recording in the musical works embodied therein, neither the owner of a
particular phonorecord nor any person in possession of a particular copy
of a computer program (including any tape, disk, or other medium
embodying such program), may, for the purposes of direct or indirect
commercial advantage, dispose of, or authorize the disposal of, the
possession of that phonorecord or computer program (including any tape,
disk, or other medium embodying such program) by rental, lease, or
lending, or by any other act or practice in the nature of rental, lease,
or lending. Nothing in the preceding sentence shall apply to the rental,
lease, or lending of a phonorecord for nonprofit purposes by a nonprofit
library or nonprofit educational institution. The transfer of possession
of a lawfully made copy of a computer program by a nonprofit educational
institution to another nonprofit educational institution or to faculty,
staff, and students does not constitute rental, lease, or lending for
direct or indirect commercial purposes under this subsection.

(B) This subsection does not apply to-

(i) a computer program which is embodied in a machine or product and
which cannot be copied during the ordinary operation or use of the
machine or product; or

(ii) a computer program embodied in or used in conjunction with a
limited purpose computer that is designed for playing video games and
may be designed for other purposes.

(2)(A) Nothing in this subsection shall apply to the lending of a
computer program for nonprofit purposes by a nonprofit library, if each
copy of a computer program which is lent by such library has affixed to
the packaging containing the program a warning of copyright in
accordance with requirements that the Register of Copyrights shall
prescribe by regulation.

(B) Not later than three years after the date of the enactment of the
Computer Software Rental Amendments Act of 1990, and at such times
thereafter as the Register of Copyrights considers appropriate, the
Register of Copyrights, after consultation with representatives of
copyright owners and librarians, shall submit to the Congress a report
stating whether this paragraph has achieved its intended purpose of
maintaining the integrity of the copyright system while providing
nonprofit libraries the capability to fulfill their function. Such
report shall advise the Congress as to any information or
recommendations that the Register of Copyrights considers necessary to
carry out the purposes of this subsection.

(3) Nothing in this subsection shall affect any provision of the
antitrust laws. For purposes of the preceding sentence, "antitrust laws"
has the meaning given that term in the first section of the Clayton Act
and includes section 5 of the Federal Trade Commission Act to the extent
that section relates to unfair methods of competition.

(4) Any person who distributes a phonorecord or a copy of a computer
program (including any tape, disk, or other medium embodying such
program) in violation of paragraph (1) is an infringer of copyright
under section 501 of this title and is subject to the remedies set forth
in sections 502, 503, 504, 505, and 509. Such violation shall not be a
criminal offense under section 506 or cause such person to be subject to
the criminal penalties set forth in section 2319 of title 18.

(c) Notwithstanding the provisions of section 106(5), the owner of a
particular copy lawfully made under this title, or any person authorized
by such owner, is entitled, without the authority of the copyright
owner, to display that copy publicly, either directly or by the
projection of no more than one image at a time, to viewers present at
the place where the copy is located.

(d) The privileges prescribed by subsections (a) and (c) do not, unless
authorized by the copyright owner, extend to any person who has acquired
possession of the copy or phonorecord from the copyright owner, by
rental, lease, loan, or otherwise, without acquiring ownership of it.

(e) Notwithstanding the provisions of sections 106(4) and 106(5), in the
case of an electronic audiovisual game intended for use in coin-operated
equipment, the owner of a particular copy of such a game lawfully made
under this title, is entitled, without the authority of the copyright
owner of the game, to publicly perform or display that game in coin-
operated equipment, except that this subsection shall not apply to any
work of authorship embodied in the audiovisual game if the copyright
owner of the electronic audiovisual game is not also the copyright owner
of the work of authorship.

Section 110. Limitations on exclusive rights: Exemption of certain
performances and displays [41]

Notwithstanding the provisions of section 106, the following are not
infringements of copyright:

(1) performance or display of a work by instructors or pupils in the
course of face-to-face teaching activities of a nonprofit educational
institution, in a classroom or similar place devoted to instruction,
unless, in the case of a motion picture or other audiovisual work, the
performance, or the display of individual images, is given by means of a
copy that was not lawfully made under this title, and that the person
responsible for the performance knew or had reason to believe was not
lawfully made;

(2) performance of a nondramatic literary or musical work or display of
a work, by or in the course of a transmission, if-

(A) the performance or display is a regular part of the systematic
instructional activities of a governmental body or a nonprofit
educational institution; and

(B) the performance or display is directly related and of material
assistance to the teaching content of the transmission; and

(i) reception in classrooms or similar places normally devoted to
instruction, or

(ii) reception by persons to whom the transmission is directed because
their disabilities or other special circumstances prevent their
attendance in classrooms or similar places normally devoted to
instruction, or

(iii) reception by officers or employees of governmental bodies as a
part of their official duties or employment;

(3) performance of a nondramatic literary or musical work or of a
dramatico-musical work of a religious nature, or display of a work, in
the course of services at a place of worship or other religious
assembly;

(4) performance of a nondramatic literary or musical work otherwise than
in a transmission to the public, without any purpose of direct or
indirect commercial advantage and without payment of any fee or other
compensation for the performance to any of its performers, promoters, or
organizers, if-

(A) there is no direct or indirect admission charge; or

(B) the proceeds, after deducting the reasonable costs of producing the
performance, are used exclusively for educational, religious, or
charitable purposes and not for private financial gain, except where the
copyright owner has served notice of objection to the performance under
the following conditions;

(i) the notice shall be in writing and signed by the copyright owner or
such owner's duly authorized agent; and

(ii) the notice shall be served on the person responsible for the
performance at least seven days before the date of the performance, and
shall state the reasons for the objection; and

(iii) the notice shall comply, in form, content, and manner of service,
with requirements that the Register of Copyrights shall prescribe by
regulation;

(5)(A) except as provided in subparagraph (B), communication of a
transmission embodying a performance or display of a work by the public
reception of the transmission on a single receiving apparatus of a kind
commonly used in private homes, unless-

(i) a direct charge is made to see or hear the transmission; or

(ii) the transmission thus received is further transmitted to the
public;

(B) communication by an establishment of a transmission or
retransmission embodying a performance or display of a nondramatic
musical work intended to be received by the general public, originated
by a radio or television broadcast station licensed as such by the
Federal Communications Commission, or, if an audiovisual transmission,
by a cable system or satellite carrier, if-

(i) in the case of an establishment other than a food service or
drinking establishment, either the establishment in which the
communication occurs has less than 2,000 gross square feet of space
(excluding space used for customer parking and for no other purpose), or
the establishment in which the communication occurs has 2,000 or more
gross square feet of space (excluding space used for customer parking
and for no other purpose) and-

(I) if the performance is by audio means only, the performance is
communicated by means of a total of not more than 6 loudspeakers, of
which not more than 4 loudspeakers are located in any 1 room or
adjoining outdoor space; or

(II) if the performance or display is by audiovisual means, any visual
portion of the performance or display is communicated by means of a
total of not more than 4 audiovisual devices, of which not more than 1
audiovisual device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches, and any audio
portion of the performance or display is communicated by means of a
total of not more than 6 loudspeakers, of which not more than 4
loudspeakers are located in any 1 room or adjoining outdoor space;

(ii) in the case of a food service or drinking establishment, either the
establishment in which the communication occurs has less than 3,750
gross square feet of space (excluding space used for customer parking
and for no other purpose), or the establishment in which the
communication occurs has 3,750 gross square feet of space or more
(excluding space used for customer parking and for no other purpose)
and

(iii) no direct charge is made to see or hear the transmission or
retransmission;

(iv) the transmission or retransmission is not further transmitted
beyond the establishment where it is received; and

(v) the transmission or retransmission is licensed by the copyright
owner of the work so publicly performed or displayed;

(6) performance of a nondramatic musical work by a governmental body or
a nonprofit agricultural or horticultural organization, in the course of
an annual agricultural or horticultural fair or exhibition conducted by
such body or organization; the exemption provided by this clause shall
extend to any liability for copyright infringement that would otherwise
be imposed on such body or organization, under doctrines of vicarious
liability or related infringement, for a performance by a
concessionnaire, business establishment, or other person at such fair or
exhibition, but shall not excuse any such person from liability for the
performance;

(7) performance of a nondramatic musical work by a vending establishment
open to the public at large without any direct or indirect admission
charge, where the sole purpose of the performance is to promote the
retail sale of copies or phonorecords of the work, or of the audiovisual
or other devices utilized in such performance, and the performance is
not transmitted beyond the place where the establishment is located and
is within the immediate area where the sale is occurring;

(8) performance of a nondramatic literary work, by or in the course of a
transmission specifically designed for and primarily directed to blind
or other handicapped persons who are unable to read normal printed
material as a result of their handicap, or deaf or other handicapped
persons who are unable to hear the aural signals accompanying a
transmission of visual signals, if the performance is made without any
purpose of direct or indirect commercial advantage and its transmission
is made through the facilities of: (i) a governmental body; or (ii) a
noncommercial educational broadcast station (as defined in section 397
of title 47); or (iii) a radio subcarrier authorization (as defined in
47 CFR 73.293-73.295 and 73.593-73.595); or (iv) a cable system (as
defined in section 111 (f));

(9) performance on a single occasion of a dramatic literary work
published at least ten years before the date of the performance, by or
in the course of a transmission specifically designed for and primarily
directed to blind or other handicapped persons who are unable to read
normal printed material as a result of their handicap, if the
performance is made without any purpose of direct or indirect commercial
advantage and its transmission is made through the facilities of a radio
subcarrier authorization referred to in clause (8) (iii), *Provided*,
That the provisions of this clause shall not be applicable to more than
one performance of the same work by the same performers or under the
auspices of the same organization; and

(10) notwithstanding paragraph (4), the following is not an infringement
of copyright: performance of a nondramatic literary or musical work in
the course of a social function which is organized and promoted by a
nonprofit veterans' organization or a nonprofit fraternal organization
to which the general public is not invited, but not including the
invitees of the organizations, if the proceeds from the performance,
after deducting the reasonable costs of producing the performance, are
used exclusively for charitable purposes and not for financial gain. For
purposes of this section the social functions of any college or
university fraternity or sorority shall not be included unless the
social function is held solely to raise funds for a specific charitable
purpose.

The exemptions provided under paragraph (5) shall not be taken into
account in any administrative, judicial, or other governmental
proceeding to set or adjust the royalties payable to copyright owners
for the public performance or display of their works. Royalties payable
to copyright owners for any public performance or display of their works
other than such performances or displays as are exempted under paragraph
(5) shall not be diminished in any respect as a result of such
exemption.

Section 111. Limitations on exclusive rights: Secondary transmissions [42]

(a) Certain Secondary Transmissions Exempted. The secondary transmission
of a performance or display of a work embodied in a primary transmission
is not an infringement of copyright if-

(1) the secondary transmission is not made by a cable system, and
consists entirely of the relaying, by the management of a hotel,
apartment house, or similar establishment, of signals transmitted by a
broadcast station licensed by the Federal Communications Commission,
within the local service area of such station, to the private lodgings
of guests or residents of such establishment, and no direct charge is
made to see or hear the secondary transmission; or

(2) the secondary transmission is made solely for the purpose and under
the conditions specified by clause (2) of section 110; or

(3) the secondary transmission is made by any carrier who has no direct
or indirect control over the content or selection of the primary
transmission or over the particular recipients of the secondary
transmission, and whose activities with respect to the secondary
transmission consist solely of providing wires, cables, or other
communications channels for the use of others: *Provided*, That the
provisions of this clause extend only to the activities of said carrier
with respect to secondary transmissions and do not exempt from liability
the activities of others with respect to their own primary or secondary
transmissions;

(4) the secondary transmission is made by a satellite carrier for
private home viewing pursuant to a statutory license under section 119;
or

(5) the secondary transmission is not made by a cable system but is made
by a governmental body, or other nonprofit organization, without any
purpose of direct or indirect commercial advantage, and without charge
to the recipients of the secondary transmission other than assessments
necessary to defray the actual and reasonable costs of maintaining and
operating the secondary transmission service.

(b) Secondary Transmission of Primary Transmission to Controlled Group.
Notwithstanding the provisions of subsections (a) and (c), the secondary
transmission to the public of a performance or display of a work
embodied in a primary transmission is actionable as an act of
infringement under section 501, and is fully subject to the remedies
provided by sections 502 through 506 and 509, if the primary
transmission is not made for reception by the public at large but is
controlled and limited to reception by particular members of the public:
*Provided*, however, That such secondary transmission is not actionable
as an act of infringement if-

(1) the primary transmission is made by a broadcast station licensed by
the Federal Communications Commission; and

(2) the carriage of the signals comprising the secondary transmission is
required under the rules, regulations, or authorizations of the Federal
Communications Commission; and

(3) the signal of the primary transmitter is not altered or changed in
any way by the secondary transmitter.

(1) Subject to the provisions of clauses (2), (3), and (4) of this
subsection and section 114(d), secondary transmissions to the public by
a cable system of a performance or display of a work embodied in a
primary transmission made by a broadcast station licensed by the Federal
Communications Commission or by an appropriate governmental authority of
Canada or Mexico shall be subject to statutory licensing upon compliance
with the requirements of subsection (d) where the carriage of the
signals comprising the secondary transmission is permissible under the
rules, regulations, or authorizations of the Federal Communications
Commission.

(2) Notwithstanding the provisions of clause (1) of this subsection, the
willful or repeated secondary transmission to the public by a cable
system of a primary transmission made by a broadcast station licensed by
the Federal Communications Commission or by an appropriate governmental
authority of Canada or Mexico and embodying a performance or display of
a work is actionable as an act of infringement under section 501, and is
fully subject to the remedies provided by sections 502 through 506 and
509, in the following cases:

(A) where the carriage of the signals comprising the secondary
transmission is not permissible under the rules, regulations, or
authorizations of the Federal Communications Commission; or

(B) where the cable system has not deposited the statement of account
and royalty fee required by subsection (d).

(3) Notwithstanding the provisions of clause (1) of this subsection and
subject to the provisions of subsection (e) of this section, the
secondary transmission to the public by a cable system of a performance
or display of a work embodied in a primary transmission made by a
broadcast station licensed by the Federal Communications Commission or
by an appropriate governmental authority of Canada or Mexico is
actionable as an act of infringement under section 501, and is fully
subject to the remedies provided by sections 502 through 506 and
sections 509 and 510, if the content of the particular program in which
the performance or display is embodied, or any commercial advertising or
station announcements transmitted by the primary transmitter during, or
immediately before or after, the transmission of such program, is in any
way willfully altered by the cable system through changes, deletions, or
additions, except for the alteration, deletion, or substitution of
commercial advertisements performed by those engaged in television
commercial advertising market research: *Provided*, That the research
company has obtained the prior consent of the advertiser who has
purchased the original commercial advertisement, the television station
broadcasting that commercial advertisement, and the cable system
performing the secondary transmission: *And provided further*, That such
commercial alteration, deletion, or substitution is not performed for
the purpose of deriving income from the sale of that commercial time.

(4) Notwithstanding the provisions of clause (1) of this subsection, the
secondary transmission to the public by a cable system of a performance
or display of a work embodied in a primary transmission made by a
broadcast station licensed by an appropriate governmental authority of
Canada or Mexico is actionable as an act of infringement under section
501, and is fully subject to the remedies provided by sections 502
through 506 and section 509, if (A) with respect to Canadian signals,
the community of the cable system is located more than 150 miles from
the United States-Canadian border and is also located south of the
forty-second parallel of latitude, or (B) with respect to Mexican
signals, the secondary transmission is made by a cable system which
received the primary transmission by means other than direct
interception of a free space radio wave emitted by such broadcast
television station, unless prior to April 15, 1976, such cable system
was actually carrying, or was specifically authorized to carry, the
signal of such foreign station on the system pursuant to the rules,
regulations, or authorizations of the Federal Communications Commission.

(d) Statutory License for Secondary Transmissions by Cable Systems. [43]

(1) A cable system whose secondary transmissions have been subject to
statutory licensing under subsection (c) shall, on a semiannual basis,
deposit with the Register of Copyrights, in accordance with requirements
that the Register shall prescribe by regulation-

(A) a statement of account, covering the six months next preceding,
specifying the number of channels on which the cable system made
secondary transmissions to its subscribers, the names and locations of
all primary transmitters whose transmissions were further transmitted by
the cable system, the total number of subscribers, the gross amounts
paid to the cable system for the basic service of providing secondary
transmissions of primary broadcast transmitters, and such other data as
the Register of Copyrights may from time to time prescribe by
regulation. In determining the total number of subscribers and the gross
amounts paid to the cable system for the basic service of providing
secondary transmissions of primary broadcast transmitters, the cable
system shall not include subscribers and amounts collected from
subscribers receiving secondary transmissions for private home viewing
pursuant to section 119. Such statement shall also include a special
statement of account covering any nonnetwork television programming that
was carried by the cable system in whole or in part beyond the local
service area of the primary transmitter, under rules, regulations, or
authorizations of the Federal Communications Commission permitting the
substitution or addition of signals under certain circumstances,
together with logs showing the times, dates, stations, and programs
involved in such substituted or added carriage; and

(B) except in the case of a cable system whose royalty is specified in
subclause (C) or (D), a total royalty fee for the period covered by the
statement, computed on the basis of specified percentages of the gross
receipts from subscribers to the cable service during said period for
the basic service of providing secondary transmissions of primary
broadcast transmitters, as follows:

(i) 0.675 of 1 per centum of such gross receipts for the privilege of
further transmitting any nonnetwork programming of a primary transmitter
in whole or in part beyond the local service area of such primary
transmitter, such amount to be applied against the fee, if any, payable
pursuant to paragraphs (ii) through (iv);

(ii) 0.675 of 1 per centum of such gross receipts for the first distant
signal equivalent;

(iii) 0.425 of 1 per centum of such gross receipts for each of the
second, third, and fourth distant signal equivalents;

(iv) 0.2 of 1 per centum of such gross receipts for the fifth distant
signal equivalent and each additional distant signal equivalent
thereafter; and

in computing the amounts payable under paragraph (ii) through (iv),
above, any fraction of a distant signal equivalent shall be computed at
its fractional value and, in the case of any cable system located partly
within and partly without the local service area of a primary
transmitter, gross receipts shall be limited to those gross receipts
derived from subscribers located without the local service area of such
primary transmitter; and

(C) if the actual gross receipts paid by subscribers to a cable system
for the period covered by the statement for the basic service of
providing secondary transmissions of primary broadcast transmitters
total $80,000 or less, gross receipts of the cable system for the
purpose of this subclause shall be computed by subtracting from such
actual gross receipts the amount by which $80,000 exceeds such actual
gross receipts, except that in no case shall a cable system's gross
receipts be reduced to less than $3,000. The royalty fee payable under
this subclause shall be 0.5 of 1 per centum, regardless of the number of
distant signal equivalents, if any; and

(D) if the actual gross receipts paid by subscribers to a cable system
for the period covered by the statement, for the basic service of
providing secondary transmissions of primary broadcast transmitters, are
more than $80,000 but less than $160,000, the royalty fee payable under
this subclause shall be

(i) 0.5 of 1 per centum of any gross receipts up to $80,000; and

(ii) 1 per centum of any gross receipts in excess of $80,000 but less
than $160,000, regardless of the number of distant signal equivalents,
if any.

(2) The Register of Copyrights shall receive all fees deposited under
this section and, after deducting the reasonable costs incurred by the
Copyright Office under this section, shall deposit the balance in the
Treasury of the United States, in such manner as the Secretary of the
Treasury directs. All funds held by the Secretary of the Treasury shall
be invested in interest-bearing United States securities for later
distribution with interest by the Librarian of Congress in the event no
controversy over distribution exists, or by a copyright arbitration
royalty panel in the event a controversy over such distribution exists.

(3) The royalty fees thus deposited shall, in accordance with the
procedures provided by clause (4), be distributed to those among the
following copyright owners who claim that their works were the subject
of secondary transmissions by cable systems during the relevant
semiannual period:

(A) any such owner whose work was included in a secondary transmission
made by a cable system of a nonnetwork television program in whole or in
part beyond the local service area of the primary transmitter; and

(B) any such owner whose work was included in a secondary transmission
identified in a special statement of account deposited under clause (1)
(A); and

(C) any such owner whose work was included in nonnetwork programming
consisting exclusively of aural signals carried by a cable system in
whole or in part beyond the local service area of the primary
transmitter of such programs.

(4) The royalty fees thus deposited shall be distributed in accordance
with the following procedures:

(A) During the month of July in each year, every person claiming to be
entitled to statutory license fees for secondary transmissions shall
file a claim with the Librarian of Congress, in accordance with
requirements that the Librarian of Congress shall prescribe by
regulation. Notwithstanding any provisions of the antitrust laws, for
purposes of this clause any claimants may agree among themselves as to
the proportionate division of statutory licensing fees among them, may
lump their claims together and file them jointly or as a single claim,
or may designate a common agent to receive payment on their behalf.

(B) After the first day of August of each year, the Librarian of
Congress shall, upon the recommendation of the Register of Copyrights,
determine whether there exists a controversy concerning the distribution
of royalty fees. If the Librarian determines that no such controversy
exists, the Librarian shall, after deducting reasonable administrative
costs under this section, distribute such fees to the copyright owners
entitled to such fees, or to their designated agents. If the Librarian
finds the existence of a controversy, the Librarian shall, pursuant to
chapter 8 of this title, convene a copyright arbitration royalty panel
to determine the distribution of royalty fees.

(C) During the pendency of any proceeding under this subsection, the
Librarian of Congress shall withhold from distribution an amount
sufficient to satisfy all claims with respect to which a controversy
exists, but shall have discretion to proceed to distribute any amounts
that are not in controversy.

(e) Nonsimultaneous Secondary Transmissions by Cable Systems.-

(1) Notwithstanding those provisions of the second paragraph of
subsection (f) relating to nonsimultaneous secondary transmissions by a
cable system, any such transmissions are actionable as an act of
infringement under section 501, and are fully subject to the remedies
provided by sections 502 through 506 and sections 509 and 510, unless

(A) the program on the videotape is transmitted no more than one time to
the cable system's subscribers; and

(B) the copyrighted program, episode, or motion picture videotape,
including the commercials contained within such program, episode, or
picture, is transmitted without deletion or editing; and

(i) prevents the duplication of the videotape while in the possession of
the system,

(ii) prevents unauthorized duplication while in the possession of the
facility making the videotape for the system if the system owns or
controls the facility, or takes reasonable precautions to prevent such
duplication if it does not own or control the facility,

(iii) takes adequate precautions to prevent duplication while the tape
is being transported, and

(iv) subject to clause (2), erases or destroys, or causes the erasure or
destruction of, the videotape; and

(D) within forty-five days after the end of each calendar quarter, an
owner or officer of the cable system executes an affidavit attesting

(i) to the steps and precautions taken to prevent duplication of the
videotape, and

(ii) subject to clause (2), to the erasure or destruction of all
videotapes made or used during such quarter; and

(E) such owner or officer places or causes each such affidavit, and
affidavits received pursuant to clause (2) (C), to be placed in a file,
open to public inspection, at such system's main office in the community
where the transmission is made or in the nearest community where such
system maintains an office; and

(F) the nonsimultaneous transmission is one that the cable system would
be authorized to transmit under the rules, regulations, and
authorizations of the Federal Communications Commission in effect at the
time of the nonsimultaneous transmission if the transmission had been
made simultaneously, except that this subclause shall not apply to
inadvertent or accidental transmissions.

(2) If a cable system transfers to any person a videotape of a program
nonsimultaneously transmitted by it, such transfer is actionable as an
act of infringement under section 501, and is fully subject to the
remedies provided by sections 502 through 506 and 509, except that,
pursuant to a written, nonprofit contract providing for the equitable
sharing of the costs of such videotape and its transfer, a videotape
nonsimultaneously transmitted by it, in accordance with clause (1), may
be transferred by one cable system in Alaska to another system in
Alaska, by one cable system in Hawaii permitted to make such
nonsimultaneous transmissions to another such cable system in Hawaii, or
by one cable system in Guam, the Northern Mariana Islands, or the Trust
Territory of the Pacific Islands, to another cable system in any of
those three territories, if-

(A) each such contract is available for public inspection in the offices
of the cable systems involved, and a copy of such contract is filed,
within thirty days after such contract is entered into, with the
Copyright Office (which Office shall make each such contract available
for public inspection); and

(B) the cable system to which the videotape is transferred complies with
clause (1) (A), (B), (C) (i), (iii), and (iv), and (D) through (F); and

(C) such system provides a copy of the affidavit required to be made in
accordance with clause (1) (D) to each cable system making a previous
nonsimultaneous transmission of the same videotape.

(3) This subsection shall not be construed to supersede the exclusivity
protection provisions of any existing agreement, or any such agreement
hereafter entered into, between a cable system and a television
broadcast station in the area in which the cable system is located, or a
network with which such station is affiliated.

(4) As used in this subsection, the term "videotape", and each of its
variant forms, means the reproduction of the images and sounds of a
program or programs broadcast by a television broadcast station licensed
by the Federal Communications Commission, regardless of the nature of
the material objects, such as tapes or films, in which the reproduction
is embodied.

(f) Definitions. As used in this section, the following terms and their
variant forms mean the following:

A "primary transmission" is a transmission made to the public by the
transmitting facility whose signals are being received and further
transmitted by the secondary transmission service, regardless of where
or when the performance or display was first transmitted.

A "secondary transmission" is the further transmitting of a primary
transmission simultaneously with the primary transmission, or
nonsimultaneously with the primary transmission if by a "cable system"
not located in whole or in part within the boundary of the forty-eight
contiguous States, Hawaii, or Puerto Rico: *Provided, however*, That a
nonsimultaneous further transmission by a cable system located in Hawaii
of a primary transmission shall be deemed to be a secondary transmission
if the carriage of the television broadcast signal comprising such
further transmission is permissible under the rules, regulations, or
authorizations of the Federal Communications Commission.

A "cable system" is a facility, located in any State, Territory, Trust
Territory, or Possession, that in whole or in part receives signals
transmitted or programs broadcast by one or more television broadcast
stations licensed by the Federal Communications Commission, and makes
secondary transmissions of such signals or programs by wires, cables,
microwave, or other communications channels to subscribing members of
the public who pay for such service. For purposes of determining the
royalty fee under subsection (d)(1), two or more cable systems in
contiguous communities under common ownership or control or operating
from one headend shall be considered as one system.

The "local service area of a primary transmitter", in the case of a
television broadcast station, comprises the area in which such station
is entitled to insist upon its signal being retransmitted by a cable
system pursuant to the rules, regulations, and authorizations of the
Federal Communications Commission in effect on April 15, 1976, or such
station's television market as defined in section 76.55(e) of title 47,
Code of Federal Regulations (as in effect on September 18, 1993), or any
modifications to such television market made, on or after September 18,
1993, pursuant to section 76.55(e) or 76.59 of title 47 of the Code of
Federal Regulations, or in the case of a television broadcast station
licensed by an appropriate governmental authority of Canada or Mexico,
the area in which it would be entitled to insist upon its signal being
retransmitted if it were a television broadcast station subject to such
rules, regulations, and authorizations. In the case of a low power
television station, as defined by the rules and regulations of the
Federal Communications Commission, the "local service area of a primary
transmitter" comprises the area within 35 miles of the transmitter site,
except that in the case of such a station located in a standard
metropolitan statistical area which has one of the 50 largest
populations of all standard metropolitan statistical areas (based on the
1980 decennial census of population taken by the Secretary of Commerce),
the number of miles shall be 20 miles. The "local service area of a
primary transmitter", in the case of a radio broadcast station,
comprises the primary service area of such station, pursuant to the
rules and regulations of the Federal Communications Commission.

A "distant signal equivalent" is the value assigned to the secondary
transmission of any nonnetwork television programming carried by a cable
system in whole or in part beyond the local service area of the primary
transmitter of such programming. It is computed by assigning a value of
one to each independent station and a value of one-quarter to each
network station and noncommercial educational station for the nonnetwork
programming so carried pursuant to the rules, regulations, and
authorizations of the Federal Communications Commission. The foregoing
values for independent, network, and noncommercial educational stations
are subject, however, to the following exceptions and limitations. Where
the rules and regulations of the Federal Communications Commission
require a cable system to omit the further transmission of a particular
program and such rules and regulations also permit the substitution of
another program embodying a performance or display of a work in place of
the omitted transmission, or where such rules and regulations in effect
on the date of enactment of this Act permit a cable system, at its
election, to effect such deletion and substitution of a nonlive program
or to carry additional programs not transmitted by primary transmitters
within whose local service area the cable system is located, no value
shall be assigned for the substituted or additional program; where the
rules, regulations, or authorizations of the Federal Communications
Commission in effect on the date of enactment of this Act permit a cable
system, at its election, to omit the further transmission of a
particular program and such rules, regulations, or authorizations also
permit the substitution of another program embodying a performance or
display of a work in place of the omitted transmission, the value
assigned for the substituted or additional program shall be, in the case
of a live program, the value of one full distant signal equivalent
multiplied by a fraction that has as its numerator the number of days in
the year in which such substitution occurs and as its denominator the
number of days in the year. In the case of a station carried pursuant to
the late-night or specialty programming rules of the Federal
Communications Commission, or a station carried on a part-time basis
where full-time carriage is not possible because the cable system lacks
the activated channel capacity to retransmit on a full-time basis all
signals which it is authorized to carry, the values for independent,
network, and noncommercial educational stations set forth above, as the
case may be, shall be multiplied by a fraction which is equal to the
ratio of the broadcast hours of such station carried by the cable system
to the total broadcast hours of the station.

A "network station" is a television broadcast station that is owned or
operated by, or affiliated with, one or more of the television networks
in the United States providing nationwide transmissions, and that
transmits a substantial part of the programming supplied by such
networks for a substantial part of that station's typical broadcast day.

An "independent station" is a commercial television broadcast station
other than a network station.

A "noncommercial educational station" is a television station that is a
noncommercial educational broadcast station as defined in section 397 of
title 47.

Section 112. Limitations on exclusive rights: Ephemeral recordings [44]

(a)(1) Notwithstanding the provisions of section 106, and except in the
case of a motion picture or other audiovisual work, it is not an
infringement of copyright for a transmitting organization entitled to
transmit to the public a performance or display of a work, under a
license, including a statutory license under section 114(f), or transfer
of the copyright or under the limitations on exclusive rights in sound
recordings specified by section 114 (a) or for a transmitting
organization that is a broadcast radio or television station licensed as
such by the Federal Communications Commission and that makes a broadcast
transmission of a performance of a sound recording in a digital format
on a nonsubscription basis, to make no more than one copy or phonorecord
of a particular transmission program embodying the performance or
display, if-

(A) the copy or phonorecord is retained and used solely by the
transmitting organization that made it, and no further copies or
phonorecords are reproduced from it; and

(B) the copy or phonorecord is used solely for the transmitting
organization's own transmissions within its local service area, or for
purposes of archival preservation or security; and

(C) unless preserved exclusively for archival purposes, the copy or
phonorecord is destroyed within six months from the date the
transmission program was first transmitted to the public.

(2) In a case in which a transmitting organization entitled to make a
copy or phonorecord under paragraph (1) in connection with the
transmission to the public of a performance or display of a work is
prevented from making such copy or phonorecord by reason of the
application by the copyright owner of technical measures that prevent
the reproduction of the work, the copyright owner shall make available
to the transmitting organization the necessary means for permitting the
making of such copy or phonorecord as permitted under that paragraph, if
it is technologically feasible and economically reasonable for the
copyright owner to do so. If the copyright owner fails to do so in a
timely manner in light of the transmitting organization's reasonable
business requirements, the transmitting organization shall not be liable
for a violation of section 1201(a)(1) of this title for engaging in such
activities as are necessary to make such copies or phonorecords as
permitted under paragraph (1) of this subsection.

(b) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a governmental body or other nonprofit
organization entitled to transmit a performance or display of a work,
under section 110(2) or under the limitations on exclusive rights in
sound recordings specified by section 114(a), to make no more than
thirty copies or phonorecords of a particular transmission program
embodying the performance or display, if

(1) no further copies or phonorecords are reproduced from the copies or
phonorecords made under this clause; and

(2) except for one copy or phonorecord that may be preserved exclusively
for archival purposes, the copies or phonorecords are destroyed within
seven years from the date the transmission program was first transmitted
to the public.

(c) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a governmental body or other nonprofit
organization to make for distribution no more than one copy or
phonorecord, for each transmitting organization specified in clause (2)
of this subsection, of a particular transmission program embodying a
performance of a nondramatic musical work of a religious nature, or of a
sound recording of such a musical work, if-

(1) there is no direct or indirect charge for making or distributing any
such copies or phonorecords; and

(2) none of such copies or phonorecords is used for any performance
other than a single transmission to the public by a transmitting
organization entitled to transmit to the public a performance of the
work under a license or transfer of the copyright; and

(3) except for one copy or phonorecord that may be preserved exclusively
for archival purposes, the copies or phonorecords are all destroyed
within one year from the date the transmission program was first
transmitted to the public.

(d) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a governmental body or other nonprofit
organization entitled to transmit a performance of a work under section
110(8) to make no more than ten copies or phonorecords embodying the
performance, or to permit the use of any such copy or phonorecord by any
governmental body or nonprofit organization entitled to transmit a
performance of a work under section 110(8), if-

(1) any such copy or phonorecord is retained and used solely by the
organization that made it, or by a governmental body or nonprofit
organization entitled to transmit a performance of a work under section
110(8), and no further copies or phonorecords are reproduced from it;
and

(2) any such copy or phonorecord is used solely for transmissions
authorized under section 110(8), or for purposes of archival
preservation or security; and

(3) the governmental body or nonprofit organization permitting any use
of any such copy or phonorecord by any governmental body or nonprofit
organization under this subsection does not make any charge for such
use.

(e) Statutory License. (1) A transmitting organization entitled to
transmit to the public a performance of a sound recording under the
limitation on exclusive rights specified by section 114(d)(1)(C)(iv) or
under a statutory license in accordance with section 114(f) is entitled
to a statutory license, under the conditions specified by this
subsection, to make no more than 1 phonorecord of the sound recording
(unless the terms and conditions of the statutory license allow for
more), if the following conditions are satisfied:

(A) The phonorecord is retained and used solely by the transmitting
organization that made it, and no further phonorecords are reproduced
from it.

(B) The phonorecord is used solely for the transmitting organization's
own transmissions originating in the United States under a statutory
license in accordance with section 114(f) or the limitation on exclusive
rights specified by section 114(d)(1)(C)(iv).

(C) Unless preserved exclusively for purposes of archival preservation,
the phonorecord is destroyed within 6 months from the date the sound
recording was first transmitted to the public using the phonorecord.

(D) Phonorecords of the sound recording have been distributed to the
public under the authority of the copyright owner or the copyright owner
authorizes the transmitting entity to transmit the sound recording, and
the transmitting entity makes the phonorecord under this subsection from
a phonorecord lawfully made and acquired under the authority of the
copyright owner.

(2) Notwithstanding any provision of the antitrust laws, any copyright
owners of sound recordings and any transmitting organizations entitled
to a statutory license under this subsection may negotiate and agree
upon royalty rates and license terms and conditions for making
phonorecords of such sound recordings under this section and the
proportionate division of fees paid among copyright owners, and may
designate common agents to negotiate, agree to, pay, or receive such
royalty payments.

(3) No later than 30 days after the date of the enactment of the Digital
Millennium Copyright Act, the Librarian of Congress shall cause notice
to be published in the Federal Register of the initiation of voluntary
negotiation proceedings for the purpose of determining reasonable terms
and rates of royalty payments for the activities specified by paragraph
(1) of this subsection during the period beginning on the date of the
enactment of such Act and ending on December 31, 2000, or such other
date as the parties may agree. Such rates shall include a minimum fee
for each type of service offered by transmitting organizations. Any
copyright owners of sound recordings or any transmitting organizations
entitled to a statutory license under this subsection may submit to the
Librarian of Congress licenses covering such activities with respect to
such sound recordings. The parties to each negotiation proceeding shall
bear their own costs.

(4) In the absence of license agreements negotiated under paragraph (2),
during the 60-day period commencing 6 months after publication of the
notice specified in paragraph (3), and upon the filing of a petition in
accordance with section 803(a)(1), the Librarian of Congress shall,
pursuant to chapter 8, convene a copyright arbitration royalty panel to
determine and publish in the Federal Register a schedule of reasonable
rates and terms which, subject to paragraph (5), shall be binding on all
copyright owners of sound recordings and transmitting organizations
entitled to a statutory license under this subsection during the period
beginning on the date of the enactment of the Digital Millennium
Copyright Act and ending on December 31, 2000, or such other date as the
parties may agree. Such rates shall include a minimum fee for each type
of service offered by transmitting organizations. The copyright
arbitration royalty panel shall establish rates that most clearly
represent the fees that would have been negotiated in the marketplace
between a willing buyer and a willing seller. In determining such rates
and terms, the copyright arbitration royalty panel shall base its
decision on economic, competitive, and programming information presented
by the parties, including-

(A) whether use of the service may substitute for or may promote the
sales of phonorecords or otherwise interferes with or enhances the
copyright owner's traditional streams of revenue; and

(B) the relative roles of the copyright owner and the transmitting
organization in the copyrighted work and the service made available to
the public with respect to relative creative contribution, technological
contribution, capital investment, cost, and risk.

In establishing such rates and terms, the copyright arbitration royalty
panel may consider the rates and terms under voluntary license
agreements negotiated as provided in paragraphs (2) and (3). The
Librarian of Congress shall also establish requirements by which
copyright owners may receive reasonable notice of the use of their sound
recordings under this section, and under which records of such use shall
be kept and made available by transmitting organizations entitled to
obtain a statutory license under this subsection.

(5) License agreements voluntarily negotiated at any time between 1 or
more copyright owners of sound recordings and 1 or more transmitting
organizations entitled to obtain a statutory license under this
subsection shall be given effect in lieu of any determination by a
copyright arbitration royalty panel or decision by the Librarian of
Congress.

(6) Publication of a notice of the initiation of voluntary negotiation
proceedings as specified in paragraph (3) shall be repeated, in
accordance with regulations that the Librarian of Congress shall
prescribe, in the first week of January 2000, and at 2-year intervals
thereafter, except to the extent that different years for the repeating
of such proceedings may be determined in accordance with paragraph (3).
The procedures specified in paragraph (4) shall be repeated, in
accordance with regulations that the Librarian of Congress shall
prescribe, upon filing of a petition in accordance with section 803(a)
(1), during a 60-day period commencing on July 1, 2000, and at 2-year
intervals thereafter, except to the extent that different years for the
repeating of such proceedings may be determined in accordance with
paragraph (3). The procedures specified in paragraph (4) shall be
concluded in accordance with section 802.

(7)(A) Any person who wishes to make a phonorecord of a sound recording
under a statutory license in accordance with this subsection may do so
without infringing the exclusive right of the copyright owner of the
sound recording under section 106(1)

(i) by complying with such notice requirements as the Librarian of
Congress shall prescribe by regulation and by paying royalty fees in
accordance with this subsection; or

(ii) if such royalty fees have not been set, by agreeing to pay such
royalty fees as shall be determined in accordance with this subsection.

(B) Any royalty payments in arrears shall be made on or before the 20th
day of the month next succeeding the month in which the royalty fees are
set.

(8) If a transmitting organization entitled to make a phonorecord under
this subsection is prevented from making such phonorecord by reason of
the application by the copyright owner of technical measures that
prevent the reproduction of the sound recording, the copyright owner
shall make available to the transmitting organization the necessary
means for permitting the making of such phonorecord as permitted under
this subsection, if it is technologically feasible and economically
reasonable for the copyright owner to do so. If the copyright owner
fails to do so in a timely manner in light of the transmitting
organization's reasonable business requirements, the transmitting
organization shall not be liable for a violation of section 1201(a)(1)
of this title for engaging in such activities as are necessary to make
such phonorecords as permitted under this subsection.

(9) Nothing in this subsection annuls, limits, impairs, or otherwise
affects in any way the existence or value of any of the exclusive rights
of the copyright owners in a sound recording, except as otherwise
provided in this subsection, or in a musical work, including the
exclusive rights to reproduce and distribute a sound recording or
musical work, including by means of a digital phonorecord delivery,
under section 106(1), 106(3), and 115, and the right to perform publicly
a sound recording or musical work, including by means of a digital audio
transmission, under sections 106(4) and 106(6).

(f) The transmission program embodied in a copy or phonorecord made
under this section is not subject to protection as a derivative work
under this title except with the express consent of the owners of
copyright in the preexisting works employed in the program.

Section 113. Scope of exclusive rights in pictorial, graphic, and
sculptural works [45]

(a) Subject to the provisions of subsections (b) and (c) of this
section, the exclusive right to reproduce a copyrighted pictorial,
graphic, or sculptural work in copies under section 106 includes the
right to reproduce the work in or on any kind of article, whether useful
or otherwise.

(b) This title does not afford, to the owner of copyright in a work that
portrays a useful article as such, any greater or lesser rights with
respect to the making, distribution, or display of the useful article so
portrayed than those afforded to such works under the law, whether title
17 or the common law or statutes of a State, in effect on December 31,
1977, as held applicable and construed by a court in an action brought
under this title.

(c) In the case of a work lawfully reproduced in useful articles that
have been offered for sale or other distribution to the public,
copyright does not include any right to prevent the making,
distribution, or display of pictures or photographs of such articles in
connection with advertisements or commentaries related to the
distribution or display of such articles, or in connection with news
reports.

(d)(1) In a case in which-

(A) a work of visual art has been incorporated in or made part of a
building in such a way that removing the work from the building will
cause the destruction, distortion, mutilation, or other modification of
the work as described in section 106A(a)(3), and

(B) the author consented to the installation of the work in the building
either before the effective date set forth in section 610(a) of the
Visual Artists Rights Act of 1990, or in a written instrument executed
on or after such effective date that is signed by the owner of the
building and the author and that specifies that installation of the work
may subject the work to destruction, distortion, mutilation, or other
modification, by reason of its removal,

then the rights conferred by paragraphs (2) and (3) of section 106A(a)
shall not apply.

(2) If the owner of a building wishes to remove a work of visual art
which is a part of such building and which can be removed from the
building without the destruction, distortion, mutilation, or other
modification of the work as described in section 106A(a)(3), the
author's rights under paragraphs (2) and (3) of section 106A(a) shall
apply unless-

(A) the owner has made a diligent, good faith attempt without success to
notify the author of the owner's intended action affecting the work of
visual art, or

(B) the owner did provide such notice in writing and the person so
notified failed, within 90 days after receiving such notice, either to
remove the work or to pay for its removal.

For purposes of subparagraph (A), an owner shall be presumed to have
made a diligent, good faith attempt to send notice if the owner sent
such notice by registered mail to the author at the most recent address
of the author that was recorded with the Register of Copyrights pursuant
to paragraph (3). If the work is removed at the expense of the author,
title to that copy of the work shall be deemed to be in the author.

(3) The Register of Copyrights shall establish a system of records
whereby any author of a work of visual art that has been incorporated in
or made part of a building, may record his or her identity and address
with the Copyright Office. The Register shall also establish procedures
under which any such author may update the information so recorded, and
procedures under which owners of buildings may record with the Copyright
Office evidence of their efforts to comply with this subsection.

Section 114. Scope of exclusive rights in sound recordings [46]

(a) The exclusive rights of the owner of copyright in a sound recording
are limited to the rights specified by clauses (1), (2), (3) and (6) of
section 106, and do not include any right of performance under section
106(4).

(b) The exclusive right of the owner of copyright in a sound recording
under clause (1) of section 106 is limited to the right to duplicate the
sound recording in the form of phonorecords or copies that directly or
indirectly recapture the actual sounds fixed in the recording. The
exclusive right of the owner of copyright in a sound recording under
clause (2) of section 106 is limited to the right to prepare a
derivative work in which the actual sounds fixed in the sound recording
are rearranged, remixed, or otherwise altered in sequence or quality.
The exclusive rights of the owner of copyright in a sound recording
under clauses (1) and (2) of section 106 do not extend to the making or
duplication of another sound recording that consists entirely of an
independent fixation of other sounds, even though such sounds imitate or
simulate those in the copyrighted sound recording. The exclusive rights
of the owner of copyright in a sound recording under clauses (1), (2),
and (3) of section 106 do not apply to sound recordings included in
educational television and radio programs (as defined in section 397 of
title 47) distributed or transmitted by or through public broadcasting
entities (as defined by section 118(g)): *Provided*, That copies or
phonorecords of said programs are not commercially distributed by or
through public broadcasting entities to the general public.

(c) This section does not limit or impair the exclusive right to perform
publicly, by means of a phonorecord, any of the works specified by
section 106(4).

(d) Limitations on Exclusive Right. Notwithstanding the provisions of
section 106(6)-

(1) Exempt transmissions and retransmissions. The performance of a sound
recording publicly by means of a digital audio transmission, other than
as a part of an interactive service, is not an infringement of section
106(6) if the performance is part of-

(A) a nonsubscription broadcast transmission;

(B) a retransmission of a nonsubscription broadcast transmission:
*Provided*, That, in the case of a retransmission of a radio station's
broadcast transmission-

(i) the radio station's broadcast transmission is not willfully or
repeatedly retransmitted more than a radius of 150 miles from the site
of the radio broadcast transmitter, however-

(I) the 150 mile limitation under this clause shall not apply when a
nonsubscription broadcast transmission by a radio station licensed by
the Federal Communications Commission is retransmitted on a non-
subscription basis by a terrestrial broadcast station, terrestrial
translator, or terrestrial repeater licensed by the Federal
Communications Commission; and

(II) in the case of a subscription retransmission of a non-subscription
broadcast retransmission covered by subclause (I), the 150 mile radius
shall be measured from the transmitter site of such broadcast
retransmitter;

(ii) the retransmission is of radio station broadcast transmissions that
are

(I) obtained by the retransmitter over the air;

(II) not electronically processed by the retransmitter to deliver
separate and discrete signals; and

(III) retransmitted only within the local communities served by the
retransmitter;

(iii) the radio station's broadcast transmission was being retransmitted
to cable systems (as defined in section 111(f)) by a satellite carrier
on January 1, 1995, and that retransmission was being retransmitted by
cable systems as a separate and discrete signal, and the satellite
carrier obtains the radio station's broadcast transmission in an analog
format: *Provided*, That the broadcast transmission being retransmitted
may embody the programming of no more than one radio station; or

(iv) the radio station's broadcast transmission is made by a
noncommercial educational broadcast station funded on or after January
1, 1995, under section 396(k) of the Communications Act of 1934 (47
U.S.C. 396(k)), consists solely of noncommercial educational and
cultural radio programs, and the retransmission, whether or not
simultaneous, is a nonsubscription terrestrial broadcast retransmission;
or

(i) a prior or simultaneous transmission incidental to an exempt
transmission, such as a feed received by and then retransmitted by an
exempt transmitter: *Provided*, That such incidental transmissions do
not include any subscription transmission directly for reception by
members of the public;

(ii) a transmission within a business establishment, confined to its
premises or the immediately surrounding vicinity;

(iii) a retransmission by any retransmitter, including a multichannel
video programming distributor as defined in section 602(12) of the
Communications Act of 1934 (47 U.S.C. 522 (12)), of a transmission by a
transmitter licensed to publicly perform the sound recording as a part
of that transmission, if the retransmission is simultaneous with the
licensed transmission and authorized by the transmitter; or

(iv) a transmission to a business establishment for use in the ordinary
course of its business: *Provided*, That the business recipient does not
retransmit the transmission outside of its premises or the immediately
surrounding vicinity, and that the transmission does not exceed the
sound recording performance complement. Nothing in this clause shall
limit the scope of the exemption in clause (ii).

(2) Statutory licensing of certain transmissions.-

The performance of a sound recording publicly by means of a subscription
digital audio transmission not exempt under paragraph (1), an eligible
nonsubscription transmission, or a transmission not exempt under
paragraph (1) that is made by a preexisting satellite digital audio
radio service shall be subject to statutory licensing, in accordance
with subsection (f) if-

(A)(i) the transmission is not part of an interactive service;

(ii) except in the case of a transmission to a business establishment,
the transmitting entity does not automatically and intentionally cause
any device receiving the transmission to switch from one program channel
to another; and

(iii) except as provided in section 1002(e), the transmission of the
sound recording is accompanied, if technically feasible, by the
information encoded in that sound recording, if any, by or under the
authority of the copyright owner of that sound recording, that
identifies the title of the sound recording, the featured recording
artist who performs on the sound recording, and related information,
including information concerning the underlying musical work and its
writer;

(B) in the case of a subscription transmission not exempt under
paragraph (1) that is made by a preexisting subscription service in the
same transmission medium used by such service on July 31, 1998, or in
the case of a transmission not exempt under paragraph (1) that is made
by a preexisting satellite digital audio radio service-

(i) the transmission does not exceed the sound recording performance
complement; and

(ii) the transmitting entity does not cause to be published by means of
an advance program schedule or prior announcement the titles of the
specific sound recordings or phonorecords embodying such sound
recordings to be transmitted; and

(C) in the case of an eligible nonsubscription transmission or a
subscription transmission not exempt under paragraph (1) that is made by
a new subscription service or by a preexisting subscription service
other than in the same transmission medium used by such service on July
31, 1998-

(i) the transmission does not exceed the sound recording performance
complement, except that this requirement shall not apply in the case of
a retransmission of a broadcast transmission if the retransmission is
made by a transmitting entity that does not have the right or ability to
control the programming of the broadcast station making the broadcast
transmission, unless-

(I) the broadcast station makes broadcast transmissions-

(aa) in digital format that regularly exceed the sound recording
performance complement; or

(bb) in analog format, a substantial portion of which, on a weekly
basis, exceed the sound recording performance complement; and

(II) the sound recording copyright owner or its representative has
notified the transmitting entity in writing that broadcast transmissions
of the copyright owner's sound recordings exceed the sound recording
performance complement as provided in this clause;

(ii) the transmitting entity does not cause to be published, or induce
or facilitate the publication, by means of an advance program schedule
or prior announcement, the titles of the specific sound recordings to be
transmitted, the phonorecords embodying such sound recordings, or, other
than for illustrative purposes, the names of the featured recording
artists, except that this clause does not disqualify a transmitting
entity that makes a prior announcement that a particular artist will be
featured within an unspecified future time period, and in the case of a
retransmission of a broadcast transmission by a transmitting entity that
does not have the right or ability to control the programming of the
broadcast transmission, the requirement of this clause shall not apply
to a prior oral announcement by the broadcast station, or to an advance
program schedule published, induced, or facilitated by the broadcast
station, if the transmitting entity does not have actual knowledge and
has not received written notice from the copyright owner or its
representative that the broadcast station publishes or induces or
facilitates the publication of such advance program schedule, or if such
advance program schedule is a schedule of classical music programming
published by the broadcast station in the same manner as published by
that broadcast station on or before September 30, 1998;

(iii) the transmission-

(I) is not part of an archived program of less than 5 hours duration;

(II) is not part of an archived program of 5 hours or greater in
duration that is made available for a period exceeding 2 weeks;

(III) is not part of a continuous program which is of less than 3 hours
duration; or

(IV) is not part of an identifiable program in which performances of
sound recordings are rendered in a predetermined order, other than an
archived or continuous program, that is transmitted at-

(aa) more than 3 times in any 2-week period that have been publicly
announced in advance, in the case of a program of less than 1 hour in
duration, or

(bb) more than 4 times in any 2-week period that have been publicly
announced in advance, in the case of a program of 1 hour or more in
duration, except that the requirement of this subclause shall not apply
in the case of a retransmission of a broadcast transmission by a
transmitting entity that does not have the right or ability to control
the programming of the broadcast transmission, unless the transmitting
entity is given notice in writing by the copyright owner of the sound
recording that the broadcast station makes broadcast transmissions that
regularly violate such requirement;

(iv) the transmitting entity does not knowingly perform the sound
recording, as part of a service that offers transmissions of visual
images contemporaneously with transmissions of sound recordings, in a
manner that is likely to cause confusion, to cause mistake, or to
deceive, as to the affiliation, connection, or association of the
copyright owner or featured recording artist with the transmitting
entity or a particular product or service advertised by the transmitting
entity, or as to the origin, sponsorship, or approval by the copyright
owner or featured recording artist of the activities of the transmitting
entity other than the performance of the sound recording itself;

(v) the transmitting entity cooperates to prevent, to the extent
feasible without imposing substantial costs or burdens, a transmission
recipient or any other person or entity from automatically scanning the
transmitting entity's transmissions alone or together with transmissions
by other transmitting entities in order to select a particular sound
recording to be transmitted to the transmission recipient, except that
the requirement of this clause shall not apply to a satellite digital
audio service that is in operation, or that is licensed by the Federal
Communications Commission, on or before July 31, 1998;

(vi) the transmitting entity takes no affirmative steps to cause or
induce the making of a phonorecord by the transmission recipient, and if
the technology used by the transmitting entity enables the transmitting
entity to limit the making by the transmission recipient of phonorecords
of the transmission directly in a digital format, the transmitting
entity sets such technology to limit such making of phonorecords to the
extent permitted by such technology;

(vii) phonorecords of the sound recording have been distributed to the
public under the authority of the copyright owner or the copyright owner
authorizes the transmitting entity to transmit the sound recording, and
the transmitting entity makes the transmission from a phonorecord
lawfully made under the authority of the copyright owner, except that
the requirement of this clause shall not apply to a retransmission of a
broadcast transmission by a transmitting entity that does not have the
right or ability to control the programming of the broadcast
transmission, unless the transmitting entity is given notice in writing
by the copyright owner of the sound recording that the broadcast station
makes broadcast transmissions that regularly violate such requirement;

(viii) the transmitting entity accommodates and does not interfere with
the transmission of technical measures that are widely used by sound
recording copyright owners to identify or protect copyrighted works, and
that are technically feasible of being transmitted by the transmitting
entity without imposing substantial costs on the transmitting entity or
resulting in perceptible aural or visual degradation of the digital
signal, except that the requirement of this clause shall not apply to a
satellite digital audio service that is in operation, or that is
licensed under the authority of the Federal Communications Commission,
on or before July 31, 1998, to the extent that such service has
designed, developed, or made commitments to procure equipment or
technology that is not compatible with such technical measures before
such technical measures are widely adopted by sound recording copyright
owners; and

(ix) the transmitting entity identifies in textual data the sound
recording during, but not before, the time it is performed, including
the title of the sound recording, the title of the phonorecord embodying
such sound recording, if any, and the featured recording artist, in a
manner to permit it to be displayed to the transmission recipient by the
device or technology intended for receiving the service provided by the
transmitting entity, except that the obligation in this clause shall not
take effect until 1 year after the date of the enactment of the Digital
Millennium Copyright Act and shall not apply in the case of a
retransmission of a broadcast transmission by a transmitting entity that
does not have the right or ability to control the programming of the
broadcast transmission, or in the case in which devices or technology
intended for receiving the service provided by the transmitting entity
that have the capability to display such textual data are not common in
the marketplace.

(3) Licenses for transmissions by interactive services.-

(A) No interactive service shall be granted an exclusive license under
section 106(6) for the performance of a sound recording publicly by
means of digital audio transmission for a period in excess of 12 months,
except that with respect to an exclusive license granted to an
interactive service by a licensor that holds the copyright to 1,000 or
fewer sound recordings, the period of such license shall not exceed 24
months: *Provided, however*, That the grantee of such exclusive license
shall be ineligible to receive another exclusive license for the
performance of that sound recording for a period of 13 months from the
expiration of the prior exclusive license.

(B) The limitation set forth in subparagraph (A) of this paragraph shall
not apply if-

(i) the licensor has granted and there remain in effect licenses under
section 106(6) for the public performance of sound recordings by means
of digital audio transmission by at least 5 different interactive
services; *Provided, however*, That each such license must be for a
minimum of 10 percent of the copyrighted sound recordings owned by the
licensor that have been licensed to interactive services, but in no
event less than 50 sound recordings; or

(ii) the exclusive license is granted to perform publicly up to 45
seconds of a sound recording and the sole purpose of the performance is
to promote the distribution or performance of that sound recording.

(C) Notwithstanding the grant of an exclusive or nonexclusive license of
the right of public performance under section 106(6), an interactive
service may not publicly perform a sound recording unless a license has
been granted for the public performance of any copyrighted musical work
contained in the sound recording: *Provided*, That such license to
publicly perform the copyrighted musical work may be granted either by a
performing rights society representing the copyright owner or by the
copyright owner.

(D) The performance of a sound recording by means of a retransmission of
a digital audio transmission is not an infringement of section 106(6)
if-

(i) the retransmission is of a transmission by an interactive service
licensed to publicly perform the sound recording to a particular member
of the public as part of that transmission; and

(ii) the retransmission is simultaneous with the licensed transmission,
authorized by the transmitter, and limited to that particular member of
the public intended by the interactive service to be the recipient of
the transmission.

(E) For the purposes of this paragraph-

(i) a "licensor" shall include the licensing entity and any other entity
under any material degree of common ownership, management, or control
that owns copyrights in sound recordings; and

(ii) a "performing rights society" is an association or corporation that
licenses the public performance of nondramatic musical works on behalf
of the copyright owner, such as the American Society of Composers,
Authors and Publishers, Broadcast Music, Inc., and SESAC, Inc.

(4) Rights not otherwise limited.-

(A) Except as expressly provided in this section, this section does not
limit or impair the exclusive right to perform a sound recording
publicly by means of a digital audio transmission under section 106(6).

(B) Nothing in this section annuls or limits in any way-

(i) the exclusive right to publicly perform a musical work, including by
means of a digital audio transmission, under section 106(4);

(ii) the exclusive rights in a sound recording or the musical work
embodied therein under sections 106(1), 106(2) and 106(3); or

(iii) any other rights under any other clause of section 106, or
remedies available under this title as such rights or remedies exist
either before or after the date of enactment of the Digital Performance
Right in Sound Recordings Act of 1995.

(C) Any limitations in this section on the exclusive right under section
106(6) apply only to the exclusive right under section 106(6) and not to
any other exclusive rights under section 106. Nothing in this section
shall be construed to annul, limit, impair or otherwise affect in any
way the ability of the owner of a copyright in a sound recording to
exercise the rights under sections 106(1), 106(2) and 106(3), or to
obtain the remedies available under this title pursuant to such rights,
as such rights and remedies exist either before or after the date of
enactment of the Digital Performance Right in Sound Recordings Act of
1995.

(e) Authority for Negotiations.-

(1) Notwithstanding any provision of the antitrust laws, in negotiating
statutory licenses in accordance with subsection (f), any copyright
owners of sound recordings and any entities performing sound recordings
affected by this section may negotiate and agree upon the royalty rates
and license terms and conditions for the performance of such sound
recordings and the proportionate division of fees paid among copyright
owners, and may designate common agents on a nonexclusive basis to
negotiate, agree to, pay, or receive payments.

(2) For licenses granted under section 106(6), other than statutory
licenses, such as for performances by interactive services or
performances that exceed the sound recording performance complement

(A) copyright owners of sound recordings affected by this section may
designate common agents to act on their behalf to grant licenses and
receive and remit royalty payments: *Provided*, That each copyright
owner shall establish the royalty rates and material license terms and
conditions unilaterally, that is, not in agreement, combination, or
concert with other copyright owners of sound recordings; and

(B) entities performing sound recordings affected by this section may
designate common agents to act on their behalf to obtain licenses and
collect and pay royalty fees: *Provided*, That each entity performing
sound recordings shall determine the royalty rates and material license
terms and conditions unilaterally, that is, not in agreement,
combination, or concert with other entities performing sound recordings.

(f) Licenses for Certain Nonexempt Transmissions. [47]

(1)(A) [48] No later than 30 days after the enactment of the Digital
Performance Right in Sound Recordings Act of 1995, the Librarian of
Congress shall cause notice to be published in the Federal Register of
the initiation of voluntary negotiation proceedings for the purpose of
determining reasonable terms and rates of royalty payments for
subscription transmissions by preexisting subscription services and
transmissions by preexisting satellite digital audio radio services
specified by subsection (d)(2) of this section during the period
beginning on the effective date of such Act and ending on December 31,
2001, or, if a copyright arbitration royalty panel is convened, ending
30 days after the Librarian issues and publishes in the Federal Register
an order adopting the determination of the copyright arbitration royalty
panel or an order setting the terms and rates (if the Librarian rejects
the panel's determination). Such terms and rates shall distinguish among
the different types of digital audio transmission services then in
operation. Any copyright owners of sound recordings, preexisting
subscription services, or preexisting satellite digital audio radio
services may submit to the Librarian of Congress licenses covering such
subscription transmissions with respect to such sound recordings. The
parties to each negotiation proceeding shall bear their own costs.

(C)(i) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in subparagraph (A) shall be
repeated, in accordance with regulations that the Librarian of Congress
shall prescribe-

(I) no later than 30 days after a petition is filed by any copyright
owners of sound recordings, any preexisting subscription services, or
any preexisting satellite digital audio radio services indicating that a
new type of subscription digital audio transmission service on which
sound recordings are performed is or is about to become operational; and

(II) in the first week of January 2001, and at 5-year intervals
thereafter.

(ii) The procedures specified in subparagraph (B) shall be repeated, in
accordance with regulations that the Librarian of Congress shall
prescribe, upon filing of a petition in accordance with section 803(a)
(1) during a 60-day period commencing-

(I) 6 months after publication of a notice of the initiation of
voluntary negotiation proceedings under subparagraph (A) pursuant to a
petition under clause (i)(I) of this subparagraph; or

(II) on July 1, 2001, and at 5-year intervals thereafter.

(iii) The procedures specified in subparagraph (B) shall be concluded in
accordance with section 802.

(2)(A) No later than 30 days after the date of the enactment of the
Digital Millennium Copyright Act, the Librarian of Congress shall cause
notice to be published in the Federal Register of the initiation of
voluntary negotiation proceedings for the purpose of determining
reasonable terms and rates of royalty payments for public performances
of sound recordings by means of eligible nonsubscription transmissions
and transmissions by new subscription services specified by subsection
(d)(2) during the period beginning on the date of the enactment of such
Act and ending on December 31, 2000, or such other date as the parties
may agree. Such rates and terms shall distinguish among the different
types of eligible nonsubscription transmission services and new
subscription services then in operation and shall include a minimum fee
for each such type of service. Any copyright owners of sound recordings
or any entities performing sound recordings affected by this paragraph
may submit to the Librarian of Congress licenses covering such eligible
nonsubscription transmissions and new subscription services with respect
to such sound recordings. The parties to each negotiation proceeding
shall bear their own costs.

(B) In the absence of license agreements negotiated under subparagraph
(A), during the 60-day period commencing 6 months after publication of
the notice specified in subparagraph (A), and upon the filing of a
petition in accordance with section 803(a)(1), the Librarian of Congress
shall, pursuant to chapter 8, convene a copyright arbitration royalty
panel to determine and publish in the Federal Register a schedule of
rates and terms which, subject to paragraph (3), shall be binding on all
copyright owners of sound recordings and entities performing sound
recordings affected by this paragraph during the period beginning on the
date of the enactment of the Digital Millennium Copyright Act and ending
on December 31, 2000, or such other date as the parties may agree. Such
rates and terms shall distinguish among the different types of eligible
nonsubscription transmission services then in operation and shall
include a minimum fee for each such type of service, such differences to
be based on criteria including, but not limited to, the quantity and
nature of the use of sound recordings and the degree to which use of the
service may substitute for or may promote the purchase of phonorecords
by consumers. In establishing rates and terms for transmissions by
eligible nonsubscription services and new subscription services, the
copyright arbitration royalty panel shall establish rates and terms that
most clearly represent the rates and terms that would have been
negotiated in the marketplace between a willing buyer and a willing
seller. In determining such rates and terms, the copyright arbitration
royalty panel shall base its decision on economic, competitive and
programming information presented by the parties, including-

(i) whether use of the service may substitute for or may promote the
sales of phonorecords or otherwise may interfere with or may enhance the
sound recording copyright owner's other streams of revenue from its
sound recordings; and

(ii) the relative roles of the copyright owner and the transmitting
entity in the copyrighted work and the service made available to the
public with respect to relative creative contribution, technological
contribution, capital in-vestment, cost, and risk.

In establishing such rates and terms, the copyright arbitration royalty
panel may consider the rates and terms for comparable types of digital
audio transmission services and comparable circumstances under voluntary
license agreements negotiated under subparagraph (A).

(C)(i) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in subparagraph (A) shall be
repeated in accordance with regulations that the Librarian of Congress
shall prescribe-

(I) no later than 30 days after a petition is filed by any copyright
owners of sound recordings or any eligible nonsubscription service or
new subscription service indicating that a new type of eligible
nonsubscription service or new subscription service on which sound
recordings are performed is or is about to become operational; and

(II) in the first week of January 2000, and at 2-year intervals
thereafter, except to the extent that different years for the repeating
of such proceedings may be determined in accordance with subparagraph
(A).

(I) 6 months after publication of a notice of the initiation of
voluntary negotiation proceedings under subparagraph (A) pursuant to a
petition under clause (i)(I); or

(II) on July 1, 2000, and at 2-year intervals thereafter, except to the
extent that different years for the repeating of such proceedings may be
determined in accordance with subparagraph (A).

(iii) The procedures specified in subparagraph (B) shall be concluded in
accordance with section 802.

(3) License agreements voluntarily negotiated at any time between 1 or
more copyright owners of sound recordings and 1 or more entities
performing sound recordings shall be given effect in lieu of any
determination by a copyright arbitration royalty panel or decision by
the Librarian of Congress.

(4)(A) The Librarian of Congress shall also establish requirements by
which copyright owners may receive reasonable notice of the use of their
sound recordings under this section, and under which records of such use
shall be kept and made available by entities performing sound
recordings.

(B) Any person who wishes to perform a sound recording publicly by means
of a transmission eligible for statutory licensing under this subsection
may do so without infringing the exclusive right of the copyright owner
of the sound recording-

(i) by complying with such notice requirements as the Librarian of
Congress shall prescribe by regulation and by paying royalty fees in
accordance with this subsection; or

(ii) if such royalty fees have not been set, by agreeing to pay such
royalty fees as shall be determined in accordance with this subsection.

(C) Any royalty payments in arrears shall be made on or before the
twentieth day of the month next succeeding the month in which the
royalty fees are set.

(g) Proceeds From Licensing of Transmissions.-

(1) Except in the case of a transmission licensed under a statutory
license in accordance with subsection (f) of this section-

(A) a featured recording artist who performs on a sound recording that
has been licensed for a transmission shall be entitled to receive
payments from the copyright owner of the sound recording in accordance
with the terms of the artist's contract; and

(B) a nonfeatured recording artist who performs on a sound recording
that has been licensed for a transmission shall be entitled to receive
payments from the copyright owner of the sound recording in accordance
with the terms of the nonfeatured recording artist's applicable contract
or other applicable agreement.

(2) The copyright owner of the exclusive right under section 106(6) of
this title to publicly perform a sound recording by means of a digital
audio transmission shall allocate to recording artists in the following
manner its receipts from the statutory licensing of transmission
performances of the sound recording in accordance with subsection (f) of
this section:

(A) 21/2 percent of the receipts shall be deposited in an escrow account
managed by an independent administrator jointly appointed by copyright
owners of sound recordings and the American Federation of Musicians (or
any successor entity) to be distributed to nonfeatured musicians
(whether or not members of the American Federation of Musicians) who
have performed on sound recordings.

(B) 21/2 percent of the receipts shall be deposited in an escrow account
managed by an independent administrator jointly appointed by copyright
owners of sound recordings 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) who have performed on sound recordings.

(C) 45 percent of the receipts shall be allocated, on a per sound
recording basis, to the recording artist or artists featured on such
sound recording (or the persons conveying rights in the artists'
performance in the sound recordings).

(h) Licensing to Affiliates.-

(1) If the copyright owner of a sound recording licenses an affiliated
entity the right to publicly perform a sound recording by means of a
digital audio transmission under section 106(6), the copyright owner
shall make the licensed sound recording available under section 106(6)
on no less favorable terms and conditions to all bona fide entities that
offer similar services, except that, if there are material differences
in the scope of the requested license with respect to the type of
service, the particular sound recordings licensed, the frequency of use,
the number of subscribers served, or the duration, then the copyright
owner may establish different terms and conditions for such other
services.

(2) The limitation set forth in paragraph (1) of this subsection shall
not apply in the case where the copyright owner of a sound recording
licenses-

(A) an interactive service; or

(B) an entity to perform publicly up to 45 seconds of the sound
recording and the sole purpose of the performance is to promote the
distribution or performance of that sound recording.

(i) No Effect on Royalties for Underlying Works. License fees payable
for the public performance of sound recordings under section 106(6)
shall not be taken into account in any administrative, judicial, or
other governmental proceeding to set or adjust the royalties payable to
copyright owners of musical works for the public performance of their
works. It is the intent of Congress that royalties payable to copyright
owners of musical works for the public performance of their works shall
not be diminished in any respect as a result of the rights granted by
section 106(6).

(j) Definitions. As used in this section, the following terms have the
following meanings:

(l) An "affiliated entity" is an entity engaging in digital audio
transmissions covered by section 106(6), other than an interactive
service, in which the licensor has any direct or indirect partnership or
any ownership interest amounting to 5 percent or more of the outstanding
voting or non-voting stock.

(2) An "archived program" is a predetermined program that is available
repeatedly on the demand of the transmission recipient and that is
performed in the same order from the beginning, except that an archived
program shall not include a re-corded event or broadcast transmission
that makes no more than an incidental use of sound recordings, as long
as such recorded event or broadcast transmission does not contain an
entire sound recording or feature a particular sound recording.

(3) A "broadcast" transmission is a transmission made by a terrestrial
broadcast station licensed as such by the Federal Communications
Commission.

(4) A "continuous program" is a predetermined program that is
continuously performed in the same order and that is accessed at a point
in the program that is beyond the control of the transmission recipient.

(5) A "digital audio transmission" is a digital transmission as defined
in section 101, that embodies the transmission of a sound recording.
This term does not include the transmission of any audiovisual work.

(6) An "eligible nonsubscription transmission" is a noninteractive
nonsubscription digital audio transmission not exempt under subsection
(d)(1) that is made as part of a service that provides audio programming
consisting, in whole or in part, of performances of sound recordings,
including retransmissions of broadcast transmissions, if the primary
purpose of the service is to provide to the public such audio or other
entertainment programming, and the primary purpose of the service is not
to sell, advertise, or promote particular products or services other
than sound recordings, live concerts, or other music-related events.

(7) An "interactive service" is one that enables a member of the public
to receive a transmission of a program specially created for the
recipient, or on request, a transmission of a particular sound
recording, whether or not as part of a program, which is selected by or
on behalf of the recipient. The ability of individuals to request that
particular sound recordings be performed for reception by the public at
large, or in the case of a subscription service, by all subscribers of
the service, does not make a service interactive, if the programming on
each channel of the service does not substantially consist of sound
recordings that are performed within 1 hour of the request or at a time
designated by either the transmitting entity or the individual making
such request. If an entity offers both interactive and noninteractive
services (either concurrently or at different times), the noninteractive
component shall not be treated as part of an interactive service.

(8) A "new subscription service" is a service that performs sound
recordings by means of noninteractive subscription digital audio
transmissions and that is not a preexisting subscription service or a
preexisting satellite digital audio radio service.

(9) A "nonsubscription" transmission is any transmission that is not a
subscription transmission.

(10) A "preexisting satellite digital audio radio service" is a
subscription satellite digital audio radio service provided pursuant to
a satellite digital audio radio service license issued by the Federal
Communications Commission on or before July 31, 1998, and any renewal of
such license to the extent of the scope of the original license, and may
include a limited number of sample channels representative of the
subscription service that are made available on a nonsubscription basis
in order to promote the subscription service.

(11) A "preexisting subscription service" is a service that performs
sound recordings by means of noninteractive audio-only subscription
digital audio transmissions, which was in existence and was making such
transmissions to the public for a fee on or before July 31, 1998, and
may include a limited number of sample channels representative of the
subscription service that are made available on a nonsubscription basis
in order to promote the subscription service.

(12) A "retransmission" is a further transmission of an initial
transmission, and includes any further retransmission of the same
transmission. Except as provided in this section, a transmission
qualifies as a "retransmission" only if it is simultaneous with the
initial transmission. Nothing in this definition shall be construed to
exempt a transmission that fails to satisfy a separate element required
to qualify for an exemption under section 114(d)(1).

(13) The "sound recording performance complement" is the transmission
during any 3-hour period, on a particular channel used by a transmitting
entity, of no more than-

(A) 3 different selections of sound recordings from any one phonorecord
lawfully distributed for public performance or sale in the United
States, if no more than 2 such selections are transmitted consecutively;
or

(B) 4 different selections of sound recordings-

(i) by the same featured recording artist; or

(ii) from any set or compilation of phonorecords lawfully distributed
together as a unit for public performance or sale in the United States,
if no more than three such selections are transmitted consecutively:

*Provided*, That the transmission of selections in excess of the
numerical limits provided for in clauses (A) and (B) from multiple
phonorecords shall nonetheless qualify as a sound recording performance
complement if the programming of the multiple phonorecords was not
willfully intended to avoid the numerical limitations prescribed in such
clauses.

(14) A "subscription" transmission is a transmission that is controlled
and limited to particular recipients, and for which consideration is
required to be paid or otherwise given by or on behalf of the recipient
to receive the transmission or a package of transmissions including the
transmission.

(15) A "transmission" is either an initial transmission or a
retransmission.

Section 115. Scope of exclusive rights in nondramatic musical works:
Compulsory license for making and distributing phonorecords [49]

In the case of nondramatic musical works, the exclusive rights provided
by clauses (1) and (3) of section 106, to make and to distribute
phonorecords of such works, are subject to compulsory licensing under
the conditions specified by this section.

(a) Availability and Scope of Compulsory License.-

(1) When phonorecords of a nondramatic musical work have been
distributed to the public in the United States under the authority of
the copyright owner, any other person, including those who make
phonorecords or digital phonorecord deliveries, may, by complying with
the provisions of this section, obtain a compulsory license to make and
distribute phonorecords of the work. A person may obtain a compulsory
license only if his or her primary purpose in making phonorecords is to
distribute them to the public for private use, including by means of a
digital phonorecord delivery. A person may not obtain a compulsory
license for use of the work in the making of phonorecords duplicating a
sound recording fixed by another, unless:

(i) such sound recording was fixed lawfully; and

(ii) the making of the phonorecords was authorized by the owner of
copyright in the sound recording or, if the sound recording was fixed
before February 15, 1972, by any person who fixed the sound recording
pursuant to an express license from the owner of the copyright in the
musical work or pursuant to a valid compulsory license for use of such
work in a sound recording.

(2) A compulsory license includes the privilege of making a musical
arrangement of the work to the extent necessary to conform it to the
style or manner of interpretation of the performance involved, but the
arrangement shall not change the basic melody or fundamental character
of the work, and shall not be subject to protection as a derivative work
under this title, except with the express consent of the copyright
owner.

(b) Notice of Intention to Obtain Compulsory License.-

(1) Any person who wishes to obtain a compulsory license under this
section shall, before or within thirty days after making, and before
distributing any phonorecords of the work, serve notice of intention to
do so on the copyright owner. If the registration or other public
records of the Copyright Office do not identify the copyright owner and
include an address at which notice can be served, it shall be sufficient
to file the notice of intention in the Copyright Office. The notice
shall comply, in form, content, and manner of service, with requirements
that the Register of Copyrights shall prescribe by regulation.

(2) Failure to serve or file the notice required by clause (1)
forecloses the possibility of a compulsory license and, in the absence
of a negotiated license, renders the making and distribution of
phonorecords actionable as acts of infringement under section 501 and
fully subject to the remedies provided by sections 502 through 506 and
509.

(1) To be entitled to receive royalties under a compulsory license, the
copyright owner must be identified in the registration or other public
records of the Copyright Office. The owner is entitled to royalties for
phonorecords made and distributed after being so identified, but is not
entitled to recover for any phonorecords previously made and
distributed.

(2) Except as provided by clause (1), the royalty under a compulsory
license shall be payable for every phonorecord made and distributed in
accordance with the license. For this purpose, and other than as
provided in paragraph (3), a phonorecord is considered "distributed" if
the person exercising the compulsory license has voluntarily and
permanently parted with its possession. With respect to each work
embodied in the phonorecord, the royalty shall be either two and three-
fourths cents, or one-half of one cent per minute of playing time or
fraction thereof, whichever amount is larger. [51]

(3)(A) A compulsory license under this section includes the right of the
compulsory licensee to distribute or authorize the distribution of a
phonorecord of a nondramatic musical work by means of a digital
transmission which constitutes a digital phonorecord delivery,
regardless of whether the digital transmission is also a public
performance of the sound recording under section 106(6) of this title or
of any nondramatic musical work embodied therein under section 106(4) of
this title. For every digital phonorecord delivery by or under the
authority of the compulsory licensee-

(i) on or before December 31, 1997, the royalty payable by the
compulsory licensee shall be the royalty prescribed under paragraph (2)
and chapter 8 of this title; and

(ii) on or after January 1, 1998, the royalty payable by the compulsory
licensee shall be the royalty prescribed under subparagraphs (B) through
(F) and chapter 8 of this title.

(B) Notwithstanding any provision of the antitrust laws, any copyright
owners of nondramatic musical works and any persons entitled to obtain a
compulsory license under subsection (a)(1) may negotiate and agree upon
the terms and rates of royalty payments under this paragraph and the
proportionate division of fees paid among copyright owners, and may
designate common agents to negotiate, agree to, pay or receive such
royalty payments. Such authority to negotiate the terms and rates of
royalty payments includes, but is not limited to, the authority to
negotiate the year during which the royalty rates prescribed under
subparagraphs (B) through (F) and chapter 8 of this title shall next be
determined.

(C) During the period of June 30, 1996, through December 31, 1996, the
Librarian of Congress shall cause notice to be published in the Federal
Register of the initiation of voluntary negotiation proceedings for the
purpose of determining reasonable terms and rates of royalty payments
for the activities specified by subparagraph (A) during the period
beginning January 1, 1998, and ending on the effective date of any new
terms and rates established pursuant to subparagraph (C), (D) or (F), or
such other date (regarding digital phonorecord deliveries) as the
parties may agree. Such terms and rates shall distinguish between (i)
digital phonorecord deliveries where the reproduction or distribution of
a phonorecord is incidental to the transmission which constitutes the
digital phonorecord delivery, and (ii) digital phonorecord deliveries in
general. Any copyright owners of nondramatic musical works and any
persons entitled to obtain a compulsory license under subsection (a)(1)
may submit to the Librarian of Congress licenses covering such
activities. The parties to each negotiation proceeding shall bear their
own costs.

(D) In the absence of license agreements negotiated under subparagraphs
(B) and (C), upon the filing of a petition in accordance with section
803(a)(1), the Librarian of Congress shall, pursuant to chapter 8,
convene a copyright arbitration royalty panel to determine a schedule of
rates and terms which, subject to subparagraph (E), shall be binding on
all copyright owners of nondramatic musical works and persons entitled
to obtain a compulsory license under subsection (a)(1) during the period
beginning January 1, 1998, and ending on the effective date of any new
terms and rates established pursuant to subparagraph (C), (D) or (F), or
such other date (regarding digital phonorecord deliveries) as may be
determined pursuant to subparagraphs (B) and (C). Such terms and rates
shall distinguish between (i) digital phonorecord deliveries where the
reproduction or distribution of a phonorecord is incidental to the
transmission which constitutes the digital phonorecord delivery, and
(ii) digital phonorecord deliveries in general. In addition to the
objectives set forth in section 801(b)(1), in establishing such rates
and terms, the copyright arbitration royalty panel may consider rates
and terms under voluntary license agreements negotiated as provided in
subparagraphs (B) and (C). The royalty rates payable for a compulsory
license for a digital phonorecord delivery under this section shall be
established de novo and no precedential effect shall be given to the
amount of the royalty payable by a compulsory licensee for digital
phonorecord deliveries on or before December 31, 1997. The Librarian of
Congress shall also establish requirements by which copyright owners may
receive reasonable notice of the use of their works under this section,
and under which records of such use shall be kept and made available by
persons making digital phonorecord deliveries.

(E)(i) License agreements voluntarily negotiated at any time between one
or more copyright owners of nondramatic musical works and one or more
persons entitled to obtain a compulsory license under subsection (a)(1)
shall be given effect in lieu of any determination by the Librarian of
Congress. Subject to clause (ii), the royalty rates determined pursuant
to subparagraph (C), (D) or (F) shall be given effect in lieu of any
contrary royalty rates specified in a contract pursuant to which a
recording artist who is the author of a nondramatic musical work grants
a license under that person's exclusive rights in the musical work under
paragraphs (1) and (3) of section 106 or commits another person to grant
a license in that musical work under paragraphs (1) and (3) of section
106, to a person desiring to fix in a tangible medium of expression a
sound recording embodying the musical work.

(ii) The second sentence of clause (i) shall not apply to-

(I) a contract entered into on or before June 22, 1995 and not modified
thereafter for the purpose of reducing the royalty rates determined
pursuant to subparagraph (C), (D) or (F) or of increasing the number of
musical works within the scope of the contract covered by the reduced
rates, except if a contract entered into on or before June 22, 1995, is
modified thereafter for the purpose of increasing the number of musical
works within the scope of the contract, any contrary royalty rates
specified in the contract shall be given effect in lieu of royalty rates
determined pursuant to subparagraph (C), (D) or (F) for the number of
musical works within the scope of the contract as of June 22, 1995; and

(II) a contract entered into after the date that the sound recording is
fixed in a tangible medium of expression substantially in a form
intended for commercial release, if at the time the contract is entered
into, the recording artist retains the right to grant licenses as to the
musical work under paragraphs (1) and (3) of section 106.

(F) The procedures specified in subparagraphs (C) and (D) shall be
repeated and concluded, in accordance with regulations that the
Librarian of Congress shall prescribe, in each fifth calendar year after
1997, except to the extent that different years for the repeating and
concluding of such proceedings may be determined in accordance with
subparagraphs (B) and (C).

(G) Except as provided in section 1002(e) of this title, a digital
phonorecord delivery licensed under this paragraph shall be accompanied
by the information encoded in the sound recording, if any, by or under
the authority of the copyright owner of that sound recording, that
identifies the title of the sound recording, the featured recording
artist who performs on the sound recording, and related information,
including information concerning the underlying musical work and its
writer.

(H)(i) A digital phonorecord delivery of a sound recording is actionable
as an act of infringement under section 501, and is fully subject to the
remedies provided by sections 502 through 506 and section 509, unless-

(I) the digital phonorecord delivery has been authorized by the
copyright owner of the sound recording; and

(II) the owner of the copyright in the sound recording or the entity
making the digital phonorecord delivery has obtained a compulsory
license under this section or has otherwise been authorized by the
copyright owner of the musical work to distribute or authorize the
distribution, by means of a digital phonorecord delivery, of each
musical work embodied in the sound recording.

(ii) Any cause of action under this subparagraph shall be in addition to
those available to the owner of the copyright in the nondramatic musical
work under subsection (c)(6) and section 106(4) and the owner of the
copyright in the sound recording under section 106(6).

(I) The liability of the copyright owner of a sound recording for
infringement of the copyright in a nondramatic musical work embodied in
the sound recording shall be determined in accordance with applicable
law, except that the owner of a copyright in a sound recording shall not
be liable for a digital phonorecord delivery by a third party if the
owner of the copyright in the sound recording does not license the
distribution of a phonorecord of the nondramatic musical work.

(J) Nothing in section 1008 shall be construed to prevent the exercise
of the rights and remedies allowed by this paragraph, paragraph (6), and
chapter 5 in the event of a digital phonorecord delivery, except that no
action alleging infringement of copyright may be brought under this
title against a manufacturer, importer or distributor of a digital audio
recording device, a digital audio recording medium, an analog recording
device, or an analog recording medium, or against a consumer, based on
the actions described in such section.

(K) Nothing in this section annuls or limits

(i) the exclusive right to publicly perform a sound recording or the
musical work embodied therein, including by means of a digital
transmission, under sections 106(4) and 106(6),

(ii) except for compulsory licensing under the conditions specified by
this section, the exclusive rights to reproduce and distribute the sound
recording and the musical work embodied therein under sections 106(1)
and 106(3), including by means of a digital phonorecord delivery, or
(iii) any other rights under any other provision of section 106, or
remedies available under this title, as such rights or remedies exist
either before or after the date of enactment of the Digital Performance
Right in Sound Recordings Act of 1995.

(L) The provisions of this section concerning digital phonorecord
deliveries shall not apply to any exempt transmissions or
retransmissions under section 114(d)(1). The exemptions created in
section 114(d)(1) do not expand or reduce the rights of copyright owners
under section 106(1) through (5) with respect to such transmissions and
retransmissions.

(4) A compulsory license under this section includes the right of the
maker of a phonorecord of a nondramatic musical work under subsection
(a)(1) to distribute or authorize distribution of such phonorecord by
rental, lease, or lending (or by acts or practices in the nature of
rental, lease, or lending). In addition to any royalty payable under
clause (2) and chapter 8 of this title, a royalty shall be payable by
the compulsory licensee for every act of distribution of a phonorecord
by or in the nature of rental, lease, or lending, by or under the
authority of the compulsory licensee. With respect to each nondramatic
musical work embodied in the phonorecord, the royalty shall be a
proportion of the revenue received by the compulsory licensee from every
such act of distribution of the phonorecord under this clause equal to
the proportion of the revenue received by the compulsory licensee from
distribution of the phonorecord under clause (2) that is payable by a
compulsory licensee under that clause and under chapter 8. The Register
of Copyrights shall issue regulations to carry out the purpose of this
clause.

(5) Royalty payments shall be made on or before the twentieth day of
each month and shall include all royalties for the month next preceding.
Each monthly payment shall be made under oath and shall comply with
requirements that the Register of Copyrights shall prescribe by
regulation. The Register shall also prescribe regulations under which
detailed cumulative annual statements of account, certified by a
certified public accountant, shall be filed for every compulsory license
under this section. The regulations covering both the monthly and the
annual statements of account shall prescribe the form, content, and
manner of certification with respect to the number of records made and
the number of records distributed.

(6) If the copyright owner does not receive the monthly payment and the
monthly and annual statements of account when due, the owner may give
written notice to the licensee that, unless the default is remedied
within thirty days from the date of the notice, the compulsory license
will be automatically terminated. Such termination renders either the
making or the distribution, or both, of all phonorecords for which the
royalty has not been paid, actionable as acts of infringement under
section 501 and fully subject to the remedies provided by sections 502
through 506 and 509.

(d) Definition. As used in this section, the following term has the
following meaning: A "digital phonorecord delivery" is each individual
delivery of a phonorecord by digital transmission of a sound recording
which results in a specifically identifiable reproduction by or for any
transmission recipient of a phonorecord of that sound recording,
regardless of whether the digital transmission is also a public
performance of the sound recording or any nondramatic musical work
embodied therein. A digital phonorecord delivery does not result from a
real-time, non-interactive subscription transmission of a sound
recording where no reproduction of the sound recording or the musical
work embodied therein is made from the inception of the transmission
through to its receipt by the transmission recipient in order to make
the sound recording audible.

Section 116. Negotiated licenses for public performances by means of coin-
operated phonorecord players [52]

(a) Applicability of Section. This section applies to any nondramatic
musical work embodied in a phonorecord.

(b) Negotiated Licenses.-

(1) Authority for negotiations. Any owners of copyright in works to
which this section applies and any operators of coin-operated
phonorecord players may negotiate and agree upon the terms and rates of
royalty payments for the performance of such works and the proportionate
division of fees paid among copyright owners, and may designate common
agents to negotiate, agree to, pay, or receive such royalty payments.

(2) Arbitration. Parties not subject to such a negotiation, may
determine, by arbitration in accordance with the provisions of chapter
8, the terms and rates and the division of fees described in paragraph
(1).

(c) License Agreements Superior to Copyright Arbitration Royalty Panel
Determinations. License agreements between one or more copyright owners
and one or more operators of coin-operated phonorecord players, which
are negotiated in accordance with subsection (b), shall be given effect
in lieu of any otherwise applicable determination by a copyright
arbitration royalty panel.

(d) Definitions. As used in this section, the following terms mean the
following:

(1) A "coin-operated phonorecord player" is a machine or device that-

(A) is employed solely for the performance of nondramatic musical works
by means of phonorecords upon being activated by the insertion of coins,
currency, tokens, or other monetary units or their equivalent;

(B) is located in an establishment making no direct or indirect charge
for admission;

(C) is accompanied by a list which is comprised of the titles of all the
musical works available for performance on it, and is affixed to the
phonorecord player or posted in the establishment in a prominent
position where it can be readily examined by the public; and

(D) affords a choice of works available for performance and permits the
choice to be made by the patrons of the establishment in which it is
located.

(2) An "operator" is any person who, alone or jointly with others-

(A) owns a coin-operated phonorecord player;

(B) has the power to make a coin-operated phonorecord player available
for placement in an establishment for purposes of public performance; or

(C) has the power to exercise primary control over the selection of the
musical works made available for public performance on a coin-operated
phonorecord player.

Section 117. Limitations on exclusive rights: Computer programs [53]

(a) Making of Additional Copy or Adaptation by Owner of Copy.
Notwithstanding the provisions of section 106, it is not an infringement
for the owner of a copy of a computer program to make or authorize the
making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step
in the utilization of the computer program in conjunction with a machine
and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and
that all archival copies are destroyed in the event that continued
possession of the computer program should cease to be rightful.

(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation. Any
exact copies prepared in accordance with the provisions of this section
may be leased, sold, or otherwise transferred, along with the copy from
which such copies were prepared, only as part of the lease, sale, or
other transfer of all rights in the program. Adaptations so prepared may
be transferred only with the authorization of the copyright owner.

(c) Machine Maintenance or Repair. Notwithstanding the provisions of
section 106, it is not an infringement for the owner or lessee of a
machine to make or authorize the making of a copy of a computer program
if such copy is made solely by virtue of the activation of a machine
that lawfully contains an authorized copy of the computer program, for
purposes only of maintenance or repair of that machine, if-

(1) such new copy is used in no other manner and is destroyed
immediately after the maintenance or repair is completed; and

(2) with respect to any computer program or part thereof that is not
necessary for that machine to be activated, such program or part thereof
is not accessed or used other than to make such new copy by virtue of
the activation of the machine.

(d) Definitions. For purposes of this section-

(1) the "maintenance" of a machine is the servicing of the machine in
order to make it work in accordance with its original specifications and
any changes to those specifications authorized for that machine; and

(2) the "repair" of a machine is the restoring of the machine to the
state of working in accordance with its original specifications and any
changes to those specifications authorized for that machine.

Section 118. Scope of exclusive rights: Use of certain works in connection
with noncommercial broadcasting [54]

(a) The exclusive rights provided by section 106 shall, with respect to
the works specified by subsection (b) and the activities specified by
subsection (d), be subject to the conditions and limitations prescribed
by this section.

(b) Notwithstanding any provision of the antitrust laws, any owners of
copyright in published nondramatic musical works and published
pictorial, graphic, and sculptural works and any public broadcasting
entities, respectively, may negotiate and agree upon the terms and rates
of royalty payments and the proportionate division of fees paid among
various copyright owners, and may designate common agents to negotiate,
agree to, pay, or receive payments.

(1) Any owner of copyright in a work specified in this subsection or any
public broadcasting entity may submit to the Librarian of Congress
proposed licenses covering such activities with respect to such works.
The Librarian of Congress shall proceed on the basis of the proposals
submitted to it as well as any other relevant information. The Librarian
of Congress shall permit any interested party to submit information
relevant to such proceedings.

(2) License agreements voluntarily negotiated at any time between one or
more copyright owners and one or more public broadcasting entities shall
be given effect in lieu of any determination by the Librarian of
Congress: *Provided*, That copies of such agreements are filed in the
Copyright Office within thirty days of execution in accordance with
regulations that the Register of Copyrights shall prescribe.

(3) In the absence of license agreements negotiated under paragraph (2),
the Librarian of Congress shall, pursuant to chapter 8, convene a
copyright arbitration royalty panel to determine and publish in the
Federal Register a schedule of rates and terms which, subject to
paragraph (2), shall be binding on all owners of copyright in works
specified by this subsection and public broadcasting entities,
regardless of whether such copyright owners have submitted proposals to
the Librarian of Congress. In establishing such rates and terms the
copyright arbitration royalty panel may consider the rates for
comparable circumstances under voluntary license agreements negotiated
as provided in paragraph (2). The Librarian of Congress shall also
establish requirements by which copyright owners may receive reasonable
notice of the use of their works under this section, and under which
records of such use shall be kept by public broadcasting entities.

(c) The initial procedure specified in subsection (b) shall be repeated
and concluded between June 30 and December 31, 1997, and at five-year
intervals thereafter, in accordance with regulations that the Librarian
of Congress shall prescribe.

(d) Subject to the terms of any voluntary license agreements that have
been negotiated as provided by subsection (b) (2), a public broadcasting
entity may, upon compliance with the provisions of this section,
including the rates and terms established by a copyright arbitration
royalty panel under subsection (b) (3), engage in the following
activities with respect to published nondramatic musical works and
published pictorial, graphic, and sculptural works:

(1) performance or display of a work by or in the course of a
transmission made by a noncommercial educational broadcast station
referred to in subsection (g); and

(2) production of a transmission program, reproduction of copies or
phonorecords of such a transmission program, and distribution of such
copies or phonorecords, where such production, reproduction, or
distribution is made by a nonprofit institution or organization solely
for the purpose of transmissions specified in paragraph (1); and

(3) the making of reproductions by a governmental body or a nonprofit
institution of a transmission program simultaneously with its
transmission as specified in paragraph (1), and the performance or
display of the contents of such program under the conditions specified
by paragraph (1) of section 110, but only if the reproductions are used
for performances or displays for a period of no more than seven days
from the date of the transmission specified in paragraph (1), and are
destroyed before or at the end of such period. No person supplying, in
accordance with paragraph (2), a reproduction of a transmission program
to governmental bodies or nonprofit institutions under this paragraph
shall have any liability as a result of failure of such body or
institution to destroy such reproduction: *Provided*, That it shall
have notified such body or institution of the requirement for such
destruction pursuant to this paragraph: *And provided further*, That if
such body or institution itself fails to destroy such reproduction it
shall be deemed to have infringed.

(e) Except as expressly provided in this subsection, this section shall
have no applicability to works other than those specified in subsection
(b). Owners of copyright in nondramatic literary works and public
broadcasting entities may, during the course of voluntary negotiations,
agree among themselves, respectively, as to the terms and rates of
royalty payments without liability under the antitrust laws. Any such
terms and rates of royalty payments shall be effective upon filing in
the Copyright Office, in accordance with regulations that the Register
of Copyrights shall prescribe.

(f) Nothing in this section shall be construed to permit, beyond the
limits of fair use as provided by section 107, the unauthorized
dramatization of a nondramatic musical work, the production of a
transmission program drawn to any substantial extent from a published
compilation of pictorial, graphic, or sculptural works, or the
unauthorized use of any portion of an audiovisual work.

(g) As used in this section, the term "public broadcasting entity" means
a noncommercial educational broadcast station as defined in section 397
of title 47 and any nonprofit institution or organization engaged in the
activities described in paragraph (2) of subsection (d).

Section 119. Limitations on exclusive rights: Secondary transmissions of
superstations and network stations for private home viewing [55]

(a) Secondary Transmissions by Satellite Carriers.-

(1) Superstations and PBS Satellite Feed. Subject to the provisions of
paragraphs (3), (4), and (6) of this subsection and section 114(d),
secondary transmissions of a performance or display of a work embodied
in a primary transmission made by a superstation or by the Public
Broadcasting Service satellite feed shall be subject to statutory
licensing under this section if the secondary transmission is made by a
satellite carrier to the public for private home viewing, with regard to
secondary transmissions the satellite carrier is in compliance with the
rules, regulations, or authorizations of the Federal Communications
Commission governing the carriage of television broadcast station
signals, and the carrier makes a direct or indirect charge for each
retransmission service to each household receiving the secondary
transmission or to a distributor that has contracted with the carrier
for direct or indirect delivery of the secondary transmission to the
public for private home viewing. In the case of the Public Broadcasting
Service satellite feed, the statutory license shall be effective until
January 1, 2002. [56]

(2) Network stations.-

(A) In general. Subject to the provisions of subparagraphs (B) and (C)
of this paragraph and paragraphs (3), (4), (5), and (6) of this
subsection and section 114(d), secondary transmissions of a performance
or display of a work embodied in a primary transmission made by a
network station shall be subject to statutory licensing under this
section if the secondary transmission is made by a satellite carrier to
the public for private home viewing, with regard to secondary
transmissions the satellite carrier is in compliance with the rules,
regulations, or authorizations of the Federal Communications Commission
governing the carriage of television broadcast station signals, and the
carrier makes a direct or indirect charge for such retransmission
service to each subscriber receiving the secondary transmission.

(B) Secondary transmissions to unserved households.-

(i) In general. The statutory license provided for in subparagraph (A)
shall be limited to secondary transmissions of the signals of no more
than two network stations in a single day for each television network to
persons who reside in unserved households.

(ii) Accurate determinations of eligibility.-

(I) Accurate predictive model. In determining presumptively whether a
person resides in an unserved household under subsection (d)(10)(A), a
court shall rely on the Individual Location Longley-Rice model set forth
by the Federal Communications Commission in Docket No. 98-201, as that
model may be amended by the Commission over time under section 339(c)(3)
of the Communications Act of 1934 to increase the accuracy of that
model.

(II) Accurate measurements. For purposes of site measurements to
determine whether a person resides in an unserved household under
subsection (d)(10)(A), a court shall rely on section 339(c)(4) of the
Communications Act of 1934.

(iii) C-band exemption to unserved households.-

(I) In general. The limitations of clause (i) shall not apply to any
secondary transmissions by C-band services of network stations that a
subscriber to C-band service received before any termination of such
secondary transmissions before October 31, 1999.

(II) Definition. In this clause the term "C-band service" means a
service that is licensed by the Federal Communications Commission and
operates in the Fixed Satellite Service under part 25 of title 47 of the
Code of Federal Regulations.

(C) Submission of subscriber lists to networks. A satellite carrier that
makes secondary transmissions of a primary transmission made by a
network station pursuant to subparagraph (A) shall, 90 days after
commencing such secondary transmissions, submit to the network that owns
or is affiliated with the network station a list identifying (by name
and street address, including county and zip code) all subscribers to
which the satellite carrier makes secondary transmissions of that
primary transmission. Thereafter, on the 15th of each month, the
satellite carrier shall submit to the network a list identifying (by
name and street address, including county and zip code) any persons who
have been added or dropped as such subscribers since the last submission
under this subparagraph. Such subscriber information submitted by a
satellite carrier may be used only for purposes of monitoring compliance
by the satellite carrier with this subsection. The submission
requirements of this subparagraph shall apply to a satellite carrier
only if the network to whom the submissions are to be made places on
file with the Register of Copyrights a document identifying the name and
address of the person to whom such submissions are to be made. The
Register shall maintain for public inspection a file of all such
documents.

(3) Noncompliance with reporting and payment requirements.-
Notwithstanding the provisions of paragraphs (1) and (2), the willful or
repeated secondary transmission to the public by a satellite carrier of
a primary transmission made by a superstation or a network station and
embodying a performance or display of a work is actionable as an act of
infringement under section 501, and is fully subject to the remedies
provided by sections 502 through 506 and 509, where the satellite
carrier has not deposited the statement of account and royalty fee
required by subsection (b), or has failed to make the submissions to
networks required by paragraph (2)(C).

(4) Willful alterations. Notwithstanding the provisions of paragraphs
(1) and (2), the secondary transmission to the public by a satellite
carrier of a performance or display of a work embodied in a primary
transmission made by a superstation or a network station is actionable
as an act of infringement under section 501, and is fully subject to the
remedies provided by sections 502 through 506 and sections 509 and 510,
if the content of the particular program in which the performance or
display is embodied, or any commercial advertising or station
announcement transmitted by the primary transmitter during, or
immediately before or after, the transmission of such program, is in any
way willfully altered by the satellite carrier through changes,
deletions, or additions, or is combined with programming from any other
broadcast signal.

(5) Violation of territorial restrictions on statutory license for
network stations.-

(A) Individual violations. The willful or repeated secondary
transmission by a satellite carrier of a primary transmission made by a
network station and embodying a performance or display of a work to a
subscriber who does not reside in an unserved household is actionable as
an act of infringement under section 501 and is fully subject to the
remedies provided by sections 502 through 506 and 509, except that-

(i) no damages shall be awarded for such act of infringement if the
satellite carrier took corrective action by promptly withdrawing service
from the ineligible subscriber, and

(ii) any statutory damages shall not exceed $5 for such subscriber for
each month during which the violation occurred.

(B) Pattern of violations. If a satellite carrier engages in a willful
or repeated pattern or practice of delivering a primary transmission
made by a network station and embodying a performance or display of a
work to subscribers who do not reside in unserved households, then in
addition to the remedies set forth in subparagraph (A)-

(i) if the pattern or practice has been carried out on a substantially
nationwide basis, the court shall order a permanent injunction barring
the secondary transmission by the satellite carrier, for private home
viewing, of the primary transmissions of any primary network station
affiliated with the same network, and the court may order statutory
damages of not to exceed $250,000 for each 6-month period during which
the pattern or practice was carried out; and

(ii) if the pattern or practice has been carried out on a local or
regional basis, the court shall order a permanent injunction barring the
secondary transmission, for private home viewing in that locality or
region, by the satellite carrier of the primary transmissions of any
primary network station affiliated with the same network, and the court
may order statutory damages of not to exceed $250,000 for each 6-month
period during which the pattern or practice was carried out.

(C) Previous subscribers excluded. Subparagraphs (A) and (B) do not
apply to secondary transmissions by a satellite carrier to persons who
subscribed to receive such secondary transmissions from the satellite
carrier or a distributor before November 16, 1988.

(D) Burden of proof. [57] In any action brought under this paragraph,
the satellite carrier shall have the burden of proving that its
secondary transmission of a primary transmission by a network station is
for private home viewing to an unserved household.

(E) Exception. The secondary transmission by a satellite carrier of a
performance or display of a work embodied in a primary transmission made
by a network station to subscribers who do not reside in unserved
households shall not be an act of infringement if-

(i) the station on May 1, 1991, was retransmitted by a satellite carrier
and was not on that date owned or operated by or affiliated with a
television network that offered interconnected program service on a
regular basis for 15 or more hours per week to at least 25 affiliated
television licensees in 10 or more States;

(ii) as of July 1, 1998, such station was retransmitted by a satellite
carrier under the statutory license of this section; and

(iii) the station is not owned or operated by or affiliated with a
television network that, as of January 1, 1995, offered interconnected
program service on a regular basis for 15 or more hours per week to at
least 25 affiliated television licensees in 10 or more States.

(6) Discrimination by a satellite carrier. Notwithstanding the
provisions of paragraph (1), the willful or repeated secondary
transmission to the public by a satellite carrier of [a] performance or
display of a work embodied in a primary transmission made by a
superstation or a network station is actionable as an act of
infringement under section 501, and is fully subject to the remedies
provided by sections 502 through 506 and 509, if the satellite carrier
unlawfully discriminates against a distributor. [58]

(7) Geographic limitation on secondary transmissions. The statutory
license created by this section shall apply only to secondary
transmissions to households located in the United States.

(8) Transitional signal intensity measurement procedures. [59]

(A) In general. Subject to subparagraph (C), upon a challenge by a
network station regarding whether a subscriber is an unserved household
within the predicted Grade B Contour of the station, the satellite
carrier shall, within 60 days after the receipt of the challenge-

(i) terminate service to that household of the signal that is the
subject of the challenge, and within 30 days thereafter notify the
network station that made the challenge that service to that household
has been terminated; or

(ii) conduct a measurement of the signal intensity of the subscriber's
household to determine whether the household is an unserved household
after giving reasonable notice to the network station of the satellite
carrier's intent to conduct the measurement.

(B) Effect of measurement. If the satellite carrier conducts a signal
intensity measurement under subparagraph (A) and the measurement
indicates that-

(i) the household is not an unserved household, the satellite carrier
shall, within 60 days after the measurement is conducted, terminate the
service to that household of the signal that is the subject of the
challenge, and within 30 days thereafter notify the network station that
made the challenge that service to that household has been terminated;
or

(ii) the household is an unserved household, the station challenging the
service shall reimburse the satellite carrier for the costs of the
signal measurement within 60 days after receipt of the measurement
results and a statement of the costs of the measurement.

(i) Notwithstanding subparagraph (A), a satellite carrier may not be
required to conduct signal intensity measurements during any calendar
year in excess of 5 percent of the number of subscribers within the
network station's local market that have subscribed to the service as of
the effective date of the Satellite Home Viewer Act of 1994.

(ii) If a network station challenges whether a subscriber is an unserved
household in excess of 5 percent of the subscribers within the network
station's local market within a calendar year, subparagraph (A) shall
not apply to challenges in excess of such 5 percent, but the station may
conduct its own signal intensity measurement of the subscriber's
household after giving reasonable notice to the satellite carrier of the
network station's intent to conduct the measurement. If such measurement
indicates that the household is not an unserved household, the carrier
shall, within 60 days after receipt of the measurement, terminate
service to the household of the signal that is the subject of the
challenge and within 30 days thereafter notify the network station that
made the challenge that service has been terminated. The carrier shall
also, within 60 days after receipt of the measurement and a statement of
the costs of the measurement, reimburse the network station for the cost
it incurred in conducting the measurement.

(D) Outside the predicted grade b contour.-

(i) If a network station challenges whether a subscriber is an unserved
household outside the predicted Grade B Contour of the station, the
station may conduct a measurement of the signal intensity of the
subscriber's household to determine whether the household is an unserved
household after giving reasonable notice to the satellite carrier of the
network station's intent to conduct the measurement.

(ii) If the network station conducts a signal intensity measurement
under clause (i) and the measurement indicates that-

(I) the household is not an unserved household, the station shall
forward the results to the satellite carrier who shall, within 60 days
after receipt of the measurement, terminate the service to the household
of the signal that is the subject of the challenge, and shall reimburse
the station for the costs of the measurement within 60 days after
receipt of the measurement results and a statement of such costs; or

(II) the household is an unserved household, the station shall pay the
costs of the measurement.

(9) Loser pays for signal intensity measurement; recovery of measurement
costs in a civil action. In any civil action filed relating to the
eligibility of subscribing households as unserved households-

(A) a network station challenging such eligibility shall, within 60 days
after receipt of the measurement results and a statement of such costs,
reimburse the satellite carrier for any signal intensity measurement
that is conducted by that carrier in response to a challenge by the
network station and that establishes the household is an unserved
household; and

(B) a satellite carrier shall, within 60 days after receipt of the
measurement results and a statement of such costs, reimburse the network
station challenging such eligibility for any signal intensity
measurement that is conducted by that station and that establishes the
household is not an unserved household.

(10) inability to conduct measurement. If a network station makes a
reasonable attempt to conduct a site measurement of its signal at a
subscriber's household and is denied access for the purpose of
conducting the measurement, and is otherwise unable to conduct a
measurement, the satellite carrier shall within 60 days notice thereof,
terminate service of the station's network to that household.

(11) Service to recreational vehicles and commercial trucks.-

(A) Exemption.-

(i) In general. For purposes of this subsection, and subject to clauses
(ii) and (iii), the term "unserved household" shall include-

(I) recreational vehicles as defined in regulations of the Secretary of
Housing and Urban Development under section 3282.8 of title 24 of the
Code of Federal Regulations; and

(II) commercial trucks that qualify as commercial motor vehicles under
regulations of the Secretary of Transportation under section 383.5 of
title 49 of the Code of Federal Regulations.

(ii) Limitation. Clause (i) shall apply only to a recreational vehicle
or commercial truck if any satellite carrier that proposes to make a
secondary transmission of a network station to the operator of such a
recreational vehicle or commercial truck complies with the documentation
requirements under subparagraphs (B) and (C).

(iii) Exclusion. For purposes of this subparagraph, the terms
"recreational vehicle" and "commercial truck" shall not include any
fixed dwelling, whether a mobile home or otherwise.

(B) Documentation requirements. A recreational vehicle or commercial
truck shall be deemed to be an unserved household beginning 10 days
after the relevant satellite carrier provides to the network that owns
or is affiliated with the network station that will be secondarily
transmitted to the recreational vehicle or commercial truck the
following documents:

(i) Declaration. A signed declaration by the operator of the
recreational vehicle or commercial truck that the satellite dish is
permanently attached to the recreational vehicle or commercial truck,
and will not be used to receive satellite programming at any fixed
dwelling.

(ii) Registration. In the case of a recreational vehicle, a copy of the
current State vehicle registration for the recreational vehicle.

(iii) Registration and license. In the case of a commercial truck, a
copy of-

(I) the current State vehicle registration for the truck; and

(II) a copy of a valid, current commercial driver's license, as defined
in regulations of the Secretary of Transportation under section 383 of
title 49 of the Code of Federal Regulations, issued to the operator.

(C) Updated documentation requirements. If a satellite carrier wishes to
continue to make secondary transmissions to a recreational vehicle or
commercial truck for more than a 2-year period, that carrier shall
provide each network, upon request, with updated documentation in the
form described under subparagraph (B) during the 90 days before
expiration of that 2-year period.

(12) Statutory license contingent on compliance with fcc rules and
remedial steps. Notwithstanding any other provision of this section, the
willful or repeated secondary transmission to the public by a satellite
carrier of a primary transmission embodying a performance or display of
a work made by a broadcast station licensed by the Federal
Communications Commission is actionable as an act of infringement under
section 501, and is fully subject to the remedies provided by sections
502 through 506 and 509, if, at the time of such transmission, the
satellite carrier is not in compliance with the rules, regulations, and
authorizations of the Federal Communications Commission concerning the
carriage of television broadcast station signals. [60]

(b) Statutory License for Secondary Transmissions for Private Home
Viewing.-

(1) Deposits with the register of copyrights. A satellite carrier whose
secondary transmissions are subject to statutory licensing under
subsection (a) shall, on a semiannual basis, deposit with the Register
of Copyrights, in accordance with requirements that the Register shall
prescribe by regulation-

(A) a statement of account, covering the preceding 6-month period,
specifying the names and locations of all superstations and network
stations whose signals were transmitted, at any time during that period,
to subscribers for private home viewing as described in subsections (a)
(1) and (a)(2), the total number of subscribers that received such
transmissions, and such other data as the Register of Copyrights may
from time to time prescribe by regulation; and

(B) a royalty fee for that 6-month period, computed by-

(i) multiplying the total number of subscribers receiving each secondary
transmission of a superstation during each calendar month by 17.5 cents
per subscriber in the case of superstations that as retransmitted by the
satellite carrier include any program which, if delivered by any cable
system in the United States, would be subject to the syndicated
exclusivity rules of the Federal Communications Commission, and 14 cents
per subscriber in the case of superstations that are syndex-proof as
defined in section 258.2 of title 37, Code of Federal Regulations;

(ii) multiplying the number of subscribers receiving each secondary
transmission of a network station or the Public Broadcasting Service
satellite feed during each calendar month by 6 cents; [61] and

(iii) adding together the totals computed under clauses (i) and (ii).

(2) Investment of fees. The Register of Copyrights shall receive all
fees deposited under this section and, after deducting the reasonable
costs incurred by the Copyright Office under this section (other than
the costs deducted under paragraph (4)), shall deposit the balance in
the Treasury of the United States, in such manner as the Secretary of
the Treasury directs. All funds held by the Secretary of the Treasury
shall be invested in interest-bearing securities of the United States
for later distribution with interest by the Librarian of Congress as
provided by this title.

(3) Persons to whom fees are distributed. The royalty fees deposited
under paragraph (2) shall, in accordance with the procedures provided by
paragraph (4), be distributed to those copyright owners whose works were
included in a secondary transmission for private home viewing made by a
satellite carrier during the applicable 6-month accounting period and
who file a claim with the Librarian of Congress under paragraph (4).

(4) Procedures for distribution. The royalty fees deposited under
paragraph (2) shall be distributed in accordance with the following
procedures:

(A) Filing of claims for fees. During the month of July in each year,
each person claiming to be entitled to statutory license fees for
secondary transmissions for private home viewing shall file a claim with
the Librarian of Congress, in accordance with requirements that the
Librarian of Congress shall prescribe by regulation. For purposes of
this paragraph, any claimants may agree among themselves as to the
proportionate division of statutory license fees among them, may lump
their claims together and file them jointly or as a single claim, or may
designate a common agent to receive payment on their behalf.

(B) Determination of controversy; distributions. After the first day of
August of each year, the Librarian of Congress shall determine whether
there exists a controversy concerning the distribution of royalty fees.
If the Librarian of Congress determines that no such controversy exists,
the Librarian of Congress shall, after deducting reasonable
administrative costs under this paragraph, distribute such fees to the
copyright owners entitled to receive them, or to their designated
agents. If the Librarian of Congress finds the existence of a
controversy, the Librarian of Congress shall, pursuant to chapter 8 of
this title, convene a copyright arbitration royalty panel to determine
the distribution of royalty fees.

(C) Withholding of fees during controversy. During the pendency of any
proceeding under this subsection, the Librarian of Congress shall
withhold from distribution an amount sufficient to satisfy all claims
with respect to which a controversy exists, but shall have discretion to
proceed to distribute any amounts that are not in controversy.

(1) Applicability and determination of royalty fees. The rate of the
royalty fee payable under subsection (b)(1)(B) shall be effective unless
a royalty fee is established under paragraph (2) or (3) of this
subsection.

(2) Fee set by voluntary negotiation.-

(A) Notice of initiation of proceedings. On or before July 1, 1996, the
Librarian of Congress shall cause notice to be published in the Federal
Register of the initiation of voluntary negotiation proceedings for the
purpose of determining the royalty fee to be paid by satellite carriers
under subsection (b)(1)(B).

(B) Negotiations. Satellite carriers, distributors, and copyright owners
entitled to royalty fees under this section shall negotiate in good
faith in an effort to reach a voluntary agreement or voluntary
agreements for the payment of royalty fees. Any such satellite carriers,
distributors, and copyright owners may at any time negotiate and agree
to the royalty fee, and may designate common agents to negotiate, agree
to, or pay such fees. If the parties fail to identify common agents, the
Librarian of Congress shall do so, after requesting recommendations from
the parties to the negotiation proceeding. The parties to each
negotiation proceeding shall bear the entire cost thereof.

(C) Agreements binding on parties; filing of agreements. Voluntary
agreements negotiated at any time in accordance with this paragraph
shall be binding upon all satellite carriers, distributors, and
copyright owners that are parties thereto. Copies of such agreements
shall be filed with the Copyright Office within 30 days after execution
in accordance with regulations that the Register of Copyrights shall
prescribe.

(D) Period agreement is in effect. The obligation to pay the royalty
fees established under a voluntary agreement which has been filed with
the Copyright Office in accordance with this paragraph shall become
effective on the date specified in the agreement, and shall remain in
effect until December 31, 1999, or in accordance with the terms of the
agreement, whichever is later.

(3) Fee set by compulsory arbitration.-

(A) Notice of initiation of proceedings. On or before January 1, 1997,
the Librarian of Congress shall cause notice to be published in the
Federal Register of the initiation of arbitration proceedings for the
purpose of determining a reasonable royalty fee to be paid under
subsection (b)(1)(B) by satellite carriers who are not parties to a
voluntary agreement filed with the Copyright Office in accordance with
paragraph (2). Such arbitration proceeding shall be conducted under
chapter 8.

(B) Establishment of royalty fees. In determining royalty fees under
this paragraph, the copyright arbitration royalty panel appointed under
chapter 8 shall establish fees for the retransmission of network
stations and superstations that most clearly represent the fair market
value of secondary transmissions. In determining the fair market value,
the panel shall base its decision on economic, competitive, and
programming information presented by the parties, including-

(i) the competitive environment in which such programming is
distributed, the cost of similar signals in similar private and
compulsory license marketplaces, and any special features and conditions
of the retransmission marketplace;

(ii) the economic impact of such fees on copyright owners and satellite
carriers; and

(iii) the impact on the continued availability of secondary
transmissions to the public.

(C) Period during which decision of arbitration panel or order of
librarian effective. The obligation to pay the royalty fee established
under a determination which-

(i) is made by a copyright arbitration royalty panel in an arbitration
proceeding under this paragraph and is adopted by the Librarian of
Congress under section 802(f), or

(ii) is established by the Librarian of Congress under section 802(f),
shall become effective as provided in section 802(g ), or July 1, 1997,
whichever is later.

(D) Persons subject to royalty fee. The royalty fee referred to in
subparagraph (C) shall be binding on all satellite carriers,
distributors, and copyright owners, who are not party to a voluntary
agreement filed with the Copyright Office under paragraph (2).

(4) Reduction. [62]-

(A) Superstation. The rate of the royalty fee in effect on January 1,
1998, payable in each case under subsection (b)(1)(B)(i) shall be
reduced by 30 percent.

(B) Network and public broadcasting satellite feed. The rate of the
royalty fee in effect on January 1, 1998, payable under subsection (b)
(1)(B)(ii) shall be reduced by 45 percent.

(5) Public broadcasting service as agent. For purposes of section 802,
with respect to royalty fees paid by satellite carriers for
retransmitting the Public Broadcasting Service satellite feed, the
Public Broadcasting Service shall be the agent for all public television
copyright claimants and all Public Broadcasting Service member
stations. [63]

(d) Definitions. As used in this section-

(1) Distributor. The term "distributor" means an entity which contracts
to distribute secondary transmissions from a satellite carrier and,
either as a single channel or in a package with other programming,
provides the secondary transmission either directly to individual
subscribers for private home viewing or indirectly through other program
distribution entities.

(2) Network station. The term "network station" means-

(A) a television broadcast station, including any translator station or
terrestrial satellite station that rebroadcasts all or substantially all
of the programming broadcast by a network station, that is owned or
operated by, or affiliated with, one or more of the television networks
in the United States which offer an interconnected program service on a
regular basis for 15 or more hours per week to at least 25 of its
affiliated television licensees in 10 or more States; or

(B) a noncommercial educational broadcast station (as defined in section
397 of the Communications Act of 1934).

(3) Primary network station. The term "primary network station" means a
network station that broadcasts or rebroadcasts the basic programming
service of a particular national network.

(4) Primary transmission. The term "primary transmission" has the
meaning given that term in section 111(f) of this title.

(5) Private home viewing. The term "private home viewing" means the
viewing, for private use in a household by means of satellite reception
equipment which is operated by an individual in that household and which
serves only such household, of a secondary transmission delivered by a
satellite carrier of a primary transmission of a television station
licensed by the Federal Communications Commission.

(6) Satellite carrier. The term "satellite carrier" means an entity that
uses the facilities of a satellite or satellite service licensed by the
Federal Communications Commission and operates in the Fixed-Satellite
Service under part 25 of title 47 of the Code of Federal Regulations or
the Direct Broadcast Satellite Service under part 100 of title 47 of the
Code of Federal Regulations to establish and operate a channel of
communications for point-to-multipoint distribution of television
station signals, and that owns or leases a capacity or service on a
satellite in order to provide such point-to-multipoint distribution,
except to the extent that such entity provides such distribution
pursuant to tariff under the Communications Act of 1934, other than for
private home viewing.

(7) Secondary transmission. The term "secondary transmission" has the
meaning given that term in section 111(f) of this title.

(8) Subscriber. The term "subscriber" means an individual who receives a
secondary transmission service for private home viewing by means of a
secondary transmission from a satellite carrier and pays a fee for the
service, directly or indirectly, to the satellite carrier or to a
distributor.

(9) Superstation. The term "superstation"-

(A) means a television broadcast station, other than a network station,
licensed by the Federal Communications Commission that is secondarily
transmitted by a satellite carrier; and

(B) except for purposes of computing the royalty fee, includes the
Public Broadcasting Service satellite feed. [64]

(10) Unserved household. The term "unserved household", with respect to
a particular television network, means a household that-

(A) cannot receive, through the use of a conventional, stationary,
outdoor rooftop receiving antenna, an over-the-air signal of a primary
network station affiliated with that network of Grade B intensity as
defined by the Federal Communications Commission under section 73.683(a)
of title 47 of the Code of Federal Regulations, as in effect on January
1, 1999;

(B) is subject to a waiver granted under regulations established under
section 339(c)(2) of the Communications Act of 1934;

(D) is a subscriber to whom subsection (a)(11) applies; or

(E) is a subscriber to whom the exemption under subsection (a)(2)(B)
(iii) applies.

(11) Local market. The term "local market" has the meaning given such
term under section 122(j).

(12) Public broadcasting service satellite feed. The term "Public
Broadcasting Service satellite feed" means the national satellite feed
distributed and designated for purposes of this section by the Public
Broadcasting Service consisting of educational and informational
programming intended for private home viewing, to which the Public
Broadcasting Service holds national terrestrial broadcast rights. [65]

(e) Moratorium on Copyright Liability. Until December 31, 2004, a
subscriber who does not receive a signal of Grade A intensity (as
defined in the regulations of the Federal Communications Commission
under section 73.683(a) of title 47 of the Code of Federal Regulations,
as in effect on January 1, 1999, or predicted by the Federal
Communications Commission using the Individual Location Longley-Rice
methodology described by the Federal Communications Commission in Docket
No. 98-201) of a local network television broadcast station shall remain
eligible to receive signals of network stations affiliated with the same
network, if that subscriber had satellite service of such network signal
terminated after July 11, 1998, and before October 31, 1999, as required
by this section, or received such service on October 31, 1999.

Section 120. Scope of exclusive rights in architectural works [66]

(a) Pictorial Representations Permitted. The copyright in an
architectural work that has been constructed does not include the right
to prevent the making, distributing, or public display of pictures,
paintings, photographs, or other pictorial representations of the work,
if the building in which the work is embodied is located in or
ordinarily visible from a public place.

(b) Alterations to and Destruction of Buildings. Notwithstanding the
provisions of section 106(2), the owners of a building embodying an
architectural work may, without the consent of the author or copyright
owner of the architectural work, make or authorize the making of
alterations to such building, and destroy or authorize the destruction
of such building.

Section 121. Limitations on exclusive rights: reproduction for blind or
other people with disabilities [67]

(a) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for an authorized entity to reproduce or to
distribute copies or phonorecords of a previously published, nondramatic
literary work if such copies or phonorecords are reproduced or
distributed in specialized formats exclusively for use by blind or other
persons with disabilities.

(b)(1) Copies or phonorecords to which this section applies shall

(A) not be reproduced or distributed in a format other than a
specialized format exclusively for use by blind or other persons with
disabilities;

(B) bear a notice that any further reproduction or distribution in a
format other than a specialized format is an infringement; and

(2) The provisions of this subsection shall not apply to standardized,
secure, or norm-referenced tests and related testing material, or to
computer programs, except the portions thereof that are in conventional
human language (including descriptions of pictorial works) and displayed
to users in the ordinary course of using the computer programs.

(1) "authorized entity" means a nonprofit organization or a governmental
agency that has a primary mission to provide specialized services
relating to training, education, or adaptive reading or information
access needs of blind or other persons with disabilities;

(2) "blind or other persons with disabilities" means individuals who are
eligible or who may qualify in accordance with the Act entitled "An Act
to provide books for the adult blind", approved March 3, 1931 (2 U.S.C.
135a; 46 Stat. 1487) to receive books and other publications produced in
specialized formats; and

(3) "specialized formats" means braille, audio, or digital text which is
exclusively for use by blind or other persons with disabilities.

Section 122. Limitations on exclusive rights; secondary transmissions by
satellite carriers within local markets [68]

(a) Secondary Transmissions of television Broadcast Stations by
Satellite Carriers. A secondary transmission of a performance or display
of a work embodied in a primary transmission of a television broadcast
station into the station's local market shall be subject to statutory
licensing under this section if-

(1) the secondary transmission is made by a satellite carrier to the
public;

(2) with regard to secondary transmissions, the satellite carrier is in
compliance with the rules, regulations, or authorizations of the Federal
Communications Commission governing the carriage of television broadcast
station signals; and

(3) the satellite carrier makes a direct or indirect charge for the
secondary transmission to-

(A) each subscriber receiving the secondary transmission; or

(B) a distributor that has contracted with the satellite carrier for
direct or indirect delivery of the secondary transmission to the public.

(b) Reporting Requirements.-

(1) Initial lists. A satellite carrier that makes secondary
transmissions of a primary transmission made by a network station under
subsection (a) shall, within 90 days after commencing such secondary
transmissions, submit to the network that owns or is affiliated with the
network station a list identifying (by name in alphabetical order and
street address, including county and zip code) all subscribers to which
the satellite carrier makes secondary transmissions of that primary
transmission under subsection (a).

(2) Subsequent lists. After the list is submitted under paragraph (1),
the satellite carrier shall, on the 15th of each month, submit to the
network a list identifying (by name in alphabetical order and street
address, including county and zip code) any subscribers who have been
added or dropped as subscribers since the last submission under this
subsection.

(3) Use of subscriber information. Subscriber information submitted by a
satellite carrier under this subsection may be used only for the
purposes of monitoring compliance by the satellite carrier with this
section.

(4) Requirements of networks. The submission requirements of this
subsection shall apply to a satellite carrier only if the network to
which the submissions are to be made places on file with the Register of
Copyrights a document identifying the name and address of the person to
whom such submissions are to be made. The Register of Copyrights shall
maintain for public inspection a file of all such documents.

(c) No Royalty Fee Required. A satellite carrier whose secondary
transmissions are subject to statutory licensing under subsection (a)
shall have no royalty obligation for such secondary transmissions.

(d) Noncompliance with Reporting and Regulatory Requirements.
Notwithstanding subsection (a), the willful or repeated secondary
transmission to the public by a satellite carrier into the local market
of a television broadcast station of a primary transmission embodying a
performance or display of a work made by that television broadcast
station is actionable as an act of infringement under section 501, and
is fully subject to the remedies provided under sections 502 through 506
and 509, if the satellite carrier has not complied with the reporting
requirements of subsection (b) or with the rules, regulations, and
authorizations of the Federal Communications Commission concerning the
carriage of television broadcast signals.

(e) Willful Alterations. Notwithstanding subsection (a), the secondary
transmission to the public by a satellite carrier into the local market
of a television broadcast station of a performance or display of a work
embodied in a primary transmission made by that television broadcast
station is actionable as an act of infringement under section 501, and
is fully subject to the remedies provided by sections 502 through 506
and sections 509 and 510, if the content of the particular program in
which the performance or display is embodied, or any commercial
advertising or station announcement transmitted by the primary
transmitter during, or immediately before or after, the transmission of
such program, is in any way willfully altered by the satellite carrier
through changes, deletions, or additions, or is combined with
programming from any other broadcast signal.

(f) Violation of territorial Restrictions on Statutory License for
television Broadcast Stations.-

(1) Individual violations. The willful or repeated secondary
transmission to the public by a satellite carrier of a primary
transmission embodying a performance or display of a work made by a
television broadcast station to a subscriber who does not reside in that
station's local market, and is not subject to statutory licensing under
section 119 or a private licensing agreement, is actionable as an act of
infringement under section 501 and is fully subject to the remedies
provided by sections 502 through 506 and 509, except that-

(A) no damages shall be awarded for such act of infringement if the
satellite carrier took corrective action by promptly withdrawing service
from the ineligible subscriber; and

(B) any statutory damages shall not exceed $5 for such subscriber for
each month during which the violation occurred.

(2) Pattern of violations. If a satellite carrier engages in a willful
or repeated pattern or practice of secondarily transmitting to the
public a primary transmission embodying a performance or display of a
work made by a television broadcast station to subscribers who do not
reside in that station's local market, and are not subject to statutory
licensing under section 119 or a private licensing agreement, then in
addition to the remedies under paragraph (1)-

(A) if the pattern or practice has been carried out on a substantially
nationwide basis, the court-

(i) shall order a permanent injunction barring the secondary
transmission by the satellite carrier of the primary transmissions of
that television broadcast station (and if such television broadcast
station is a network station, all other television broadcast stations
affiliated with such network); and

(ii) may order statutory damages not exceeding $250,000 for each 6-month
period during which the pattern or practice was carried out; and

(B) if the pattern or practice has been carried out on a local or
regional basis with respect to more than one television broadcast
station, the court-

(i) shall order a permanent injunction barring the secondary
transmission in that locality or region by the satellite carrier of the
primary transmissions of any television broadcast station; and

(ii) may order statutory damages not exceeding $250,000 for each 6-month
period during which the pattern or practice was carried out.

(g) Burden of Proof. In any action brought under subsection (f), the
satellite carrier shall have the burden of proving that its secondary
transmission of a primary transmission by a television broadcast station
is made only to subscribers located within that station's local market
or subscribers being served in compliance with section 119 or a private
licensing agreement.

(h) Geographic Limitations on secondary Transmissions. The statutory
license created by this section shall apply to secondary transmissions
to locations in the United States.

(i) Exclusivity with Respect to Secondary Transmissions of Broadcast
Stations by Satellite to Members of the Public. No provision of section
111 or any other law (other than this section and section 119) shall be
construed to contain any authorization, exemption, or license through
which secondary transmissions by satellite carriers of programming
contained in a primary transmission made by a television broadcast
station may be made without obtaining the consent of the copyright
owner.

(j) Definitions. In this section-

(1) Distributor. The term "distributor" means an entity which contracts
to distribute secondary transmissions from a satellite carrier and,
either as a single channel or in a package with other programming,
provides the secondary transmission either directly to individual
subscribers or indirectly through other program distribution entities.

(2) Local market.-

(A) In general. The term "local market", in the case of both commercial
and noncommercial television broadcast stations, means the designated
market area in which a station is located, and-

(i) in the case of a commercial television broadcast station, all
commercial television broadcast stations licensed to a community within
the same designated market area are within the same local market; and

(ii) in the case of a noncommercial educational television broadcast
station, the market includes any station that is licensed to a community
within the same designated market area as the noncommercial educational
television broadcast station.

(B) County of license. In addition to the area described in subparagraph
(A), a station's local market includes the county in which the station's
community of license is located.

(C) Designated market area. For purposes of subparagraph (A), the term
"designated market area" means a designated market area, as determined
by Nielsen Media Research and published in the 1999-2000 Nielsen Station
Index Directory and Nielsen Station Index United States Television
Household Estimates or any successor publication.

(3) Network station; satellite carrier; secondary transmission. The
terms "network station", "satellite carrier", and "secondary
transmission" have the meanings given such terms under section 119(d).

(4) Subscriber. The term "subscriber" means a person who receives a
secondary transmission service from a satellite carrier and pays a fee
for the service, directly or indirectly, to the satellite carrier or to
a distributor.

(5) Television broadcast station. The term "television broadcast
station"-

(A) means an over-the-air, commercial or noncommercial television
broadcast station licensed by the Federal Communications Commission
under subpart E of part 73 of title 47, Code of Federal Regulations,
except that such term does not include a low-power or translator
television station; and

(B) includes a television broadcast station licensed by an appropriate
governmental authority of Canada or Mexico if the station broadcasts
primarily in the English language and is a network station as defined in
section 119(d)(2)(A).

------------------
Chapter 1 Endnotes

1 In 1980, section 117 was amended in its entirety with an amendment in
the nature of a substitute that included a new title. However, the table
of sections was not changed to reflect the new title. Pub. L. No.
96-517, 94 Stat. 3015, 3028. In 1997, a technical amendment made that
change. Pub. L. No. 105-80, 111 Stat. 1529, 1534.

2 The Audio Home Recording Act of 1992 amended section 101 by inserting
"Except as otherwise provided in this title," at the beginning of the
first sentence. Pub. L. No. 102-563, 106 Stat. 4237, 4248.

The Berne Convention Implementation Act of 1988 amended section 101 by
adding a definition for "Berne Convention work." Pub. L. No. 100-568,
102 Stat. 2853, 2854. In 1990, the Architectural Works Copyright
Protection Act amended the definition of "Berne Convention work" by
adding paragraph (5). Pub. L. No. 101-650, 104 Stat. 5089, 5133. The
WIPO Copyright and Performances and Phonograms Treaties Implementation
Act of 1998 deleted the definition of "Berne Convention work" from
section 101. Pub. L. No. 105-304, 112 Stat. 2860, 2861. The definition
of "Berne Convention work," as deleted, is contained in part VI of the
Appendix.

3 In 1990, the Architectural Works Copyright Protection Act amended
section 101 by adding the definition for "architectural work." Pub. L.
No. 101-650, 104 Stat. 5089, 5133. That Act states that the definition
is applicable to "any architectural work that, on the date of the
enactment of this Act, is unconstructed and embodied in unpublished
plans or drawings, except that protection for such architectural work
under title 17, United States Code, by virtue of the amendments made by
this title, shall terminate on December 31, 2002, unless the work is
constructed by that date."

4 The Berne Convention Implementation Act of 1988 amended section 101
by adding the definition of "Berne Convention." Pub. L. No. 100-568, 102
Stat. 2853, 2854.

5 The Digital Performance Right in Sound Recordings Act of 1995 amended
section 101 by adding the definition of "digital transmission." Pub. L.
No.104-39, 109 Stat. 336, 348.

6 The Fairness in Music Licensing Act of 1998 amended section 101 by
adding the definition of "establishment." Pub. L. No. 105-298, 112 Stat.
2827, 2833.

7 The Fairness in Music Licensing Act of 1998 amended section 101 by
adding the definition of "food service or drinking establishment." Pub.
L. No. 105-298, 112 Stat. 2827, 2833.

8 In 1997, the No Electronic Theft (NET) Act amended section 101 by
adding the definition for "financial gain." Pub. L. No. 105-147, 111
Stat. 2678.

9 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 amended section 101 by adding the definition
of "Geneva Phonograms Convention." Pub. L. No. 105-304, 112 Stat. 2860,
2861.

10 The Fairness in Music Licensing Act of 1998 amended section 101 by
adding the definition of "gross square feet of space." Pub. L. No.
105-298, 112 Stat. 2827, 2833.

11 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 requires that paragraph (5) of the definition
of "international agreement" take effect upon entry into force of the
WIPO Copyright Treaty with respect to the United States. Pub. L. No.
105-304, 112 Stat. 2860, 2877.

12 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 requires that paragraph (6) of the definition
of "international agreement" take effect upon entry into force of the
WIPO Performances and Phonograms Treaty with respect to the United
States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.

13 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 amended section 101 by adding the definition
of "international agreement." Pub. L. No. 105-304, 112 Stat. 2860, 2861.

14 The Fairness in Music Licensing Act of 1998 amended section 101 by
adding the definition of "performing rights society." Pub. L. No.
105-298, 112 Stat. 2827, 2833.

15 The Berne Convention Implementation Act of 1988 amended the
definition of "Pictorial, graphic, and sculptural works" by inserting
"diagrams, models, and technical drawings, including architectural
plans" in the first sentence, in lieu of "technical drawings, diagrams,
and models." Pub. L. No. 100-568, 102 Stat. 2853, 2854.

16 The Fairness in Music Licensing Act of 1998 amended section 101 by
adding the definition of "proprietor." Pub. L. No. 105-298, 112 Stat.
2827, 2833. In 1999, a technical amendment added the phrase "For
purposes of section 513,", to the beginning of the definition of
"proprietor." Pub. L. No. 106-44, 113 Stat. 221, 222.

17 The Copyright Renewal Act of 1992 amended section 101 by adding the
definition of "registration." Pub. L. No. 102-307, 106 Stat. 264, 266.

18 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 amended section 101 by adding the definition
of "treaty party." Pub. L. No. 105-304, 112 Stat. 2860, 2861.

19 The Berne Convention Implementation Act of 1988 amended section 101
by adding the definition of "country of origin" of a Berne Convention
work, for purposes of section 411. Pub. L. No. 100-568, 102 Stat. 2853,
2854. The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 amended that definition by changing it to a
definition for "United States work," for purposes of section 411. Pub.
L. No. 105-304, 112 Stat. 2860, 2861. In 1999, a technical amendment
moved the definition of "United States work" to place it in alphabetical
order, after the definition for "United States." Pub. L. No. 106-44, 113
Stat. 221, 222.

20 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 amended section 101 by adding the definition
of "WIPO Copyright Treaty." Pub. L. No. 105-304, 112 Stat. 2860, 2861.
That definition is required to take effect upon entry into force of the
WIPO Copyright Treaty with respect to the United States. Pub. L. No.
105-304, 112 Stat. 2860, 2877.

21 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 amended section 101 by adding the definition
of "WIPO Performances and Phonograms Treaty." Pub. L. No. 105-304, 112
Stat. 2860, 2862. That definition is required to take effect upon entry
into force of the WIPO Performances and Phonograms Treaty with respect
to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.

22 The Visual Artists Rights Act of 1990 amended section 101 by adding
the definition of "work of visual art." Pub. L. No. 101-650, 104 Stat.
5089, 5128.

23 The Satellite Home Viewer Improvement Act of 1999 amended the
definition of "a work made for hire" by inserting "as a sound recording"
after "audiovisual work." Pub. L. No. 106-113, 113 Stat. 1501, app. I at
1501A-544. The Work Made for Hire and Copyright Corrections Act of 2000
amended the definition of "work made for hire" by deleting "as a sound
recording" after "audiovisual work." Pub. L. No. 106-379, 114 Stat.
1444. The Act also added a second paragraph to part (2) of that
definition. *Id.* These changes are effective retroactively, as of
November 29, 1999.

24 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 amended section 101 by adding the definitions
of "WTO Agreement" and "WTO member country," thereby transferring those
definitions to section 101 from section 104A. Pub. L. No. 105-304, 112
Stat. 2860, 2862. See also endnote 29, *infra.*

25 In 1980, the definition of "computer program" was added to section
101. Pub. L. No. 96-517, 94 Stat. 3015, 3028.

26 In 1990, the Architectural Works Copyright Protection Act amended
subsection 102(a) by adding at the end thereof paragraph (8). Pub. L.
No. 101-650, 104 Stat. 5089, 5133.

27 The Berne Convention Implementation Act of 1988 amended section
104(b) by redesignating paragraph (4) as paragraph (5), by inserting
after paragraph (3) a new paragraph (4) and by adding subsection (c) at
the end. Pub. L. No. 100-568, 102 Stat. 2853, 2855. The WIPO Copyright
and Performances and Phonograms Treaties Implementation Act of 1998
amended section 104 as follows: 1) by amending subsection (b) to
redesignate paragraphs (3) and (5) as (5) and (6), respectively, and by
adding a new paragraph (3); 2) by amending section 104(b), throughout;
and 3) by adding section 104(d). Pub. L. No. 105-304, 112 Stat. 2860,
2862.

28 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 requires that subsection (d), regarding the
effect of phonograms treaties, take effect upon entry into force of the
WIPO Performances and Phonograms Treaty with respect to the United
States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.

29 In 1993, the North American Free Trade Agreement Implementation Act
added section 104A. Pub. L. No. 103-182, 107 Stat. 2057, 2115. In 1994,
the Uruguay Round Agreements Act amended section 104A in its entirety
with an amendment in the nature of a substitute. Pub. L. No. 103-465,
108 Stat. 4809, 4976. On November 13, 1997, Section 104A was amended by
replacing subsection (d)(3)(A), by striking the last sentence of
subsection (e)(1)(B)(ii) and by rewriting paragraphs (2) and (3) of
subsection (h). Pub. L. No. 105-80, 111 Stat. 1529, 1530. The WIPO
Copyright and Performances and Phonograms Treaties Implementation Act of
1998 amended section 104A by rewriting paragraphs (1) and (3) of
subsection (h); by adding subparagraph (E) to subsection (h)(6); and by
amending subsection (h)(8)(B)(i). Pub. L. No. 105-304, 112 Stat. 2860,
2862. That act also deleted paragraph (9), thereby transferring the
definitions for "WTO Agreement" and "WTO member country" from section
104A to section 101. Pub. L. No. 105-304, 112 Stat. 2860, 2863. See also
endnote 24, *supra.*

30 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 requires that subparagraph (C) of the
definition of "date of adherence or proclamation" take effect upon entry
into force of the WIPO Copyright Treaty with respect to the United
States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.

31 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 requires that subparagraph (D) of the
definition of "date of adherence or proclamation" take effect upon entry
into force of the WIPO Performances and Phonograms Treaty with respect
to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.

32 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 requires that subparagraph (C) of the
definition of "eligible country" take effect upon entry into force of
the WIPO Copyright Treaty with respect to the United States. Pub. L. No.
105-304, 112 Stat. 2860, 2877.

33 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 requires that subparagraph (D) of the
definition of "eligible country" take effect upon entry into force of
the WIPO Performance and Phonograms Treaty with respect to the United
States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.

34 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 requires that subparagraph (E) of the
definition of "restored work" take effect upon entry into force of the
WIPO Performances and Phonograms Treaty with respect to the United
States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.

35 In 1968, the Standard Reference Data Act provided an exception to
Section 105, Pub. L. No. 90-396, 82 Stat. 339. Section 6 of that act
amended title 15 of the *United States Code* by authorizing the
Secretary of Commerce, at 15 U.S.C. 290e, to secure copyright and
renewal thereof on behalf of the United States as author or proprietor
"in all or any part of any standard reference data which he prepares or
makes available under this chapter," and to "authorize the reproduction
and publication thereof by others." See also section 105(f) of the
Transitional and Supplementary Provisions of the Copyright Act of 1976,
in Part I of the Appendix. Pub. L. No. 94-553, 90 Stat. 2541.

36 The Digital Performance Right in Sound Recordings Act of 1995
amended section 106 by adding paragraph (6). Pub. L. No. 104-39, 109
Stat. 336. In 1999, a technical amendment substituted "121" for "120."
Pub. L. No. 106-44, 113 Stat. 221, 222.

37 The Visual Artists Rights Act of 1990 added section 106A. Pub. L.
No. 101-650, 104 Stat. 5089, 5128. The Act states that, generally,
section 106A is to take effect six months after the date of its
enactment, that is, six months after December 1, 1990, and that the
rights created by section 106A shall apply to (1) works created before
such effective date but title to which has not, as of such effective
date, been transferred from the author and (2) works created on or after
such effective date, but shall not apply to any destruction, distortion,
mutilation or other modification (as described in section 106A(a)(3)) of
any work which occurred before such effective date. See also, endnote 3,
chapter 3.

38 The Visual Artists Rights Act of 1990 amended section 107 by adding
the reference to section 106A. Pub. L. No. 101-650, 104 Stat. 5089,
5132. In 1992, section 107 was also amended to add the last sentence.
Pub. L. No. 102-492, 106 Stat. 3145.

39 The Copyright Amendments Act of 1992 amended section 108 by
repealing subsection (i) in its entirety. Pub. L. No. 102-307, 106 Stat.
264, 272. In 1998, the Digital Millennium Copyright Act amended section
108 by making changes to subsections (a), (b) and (c); by redesignating
subsection (h) as (i); and by adding a new subsection (h). Pub. L. No.
105-304, 112 Stat. 2860, 2889.

40 The Record Rental Amendment of 1984 amended section 109 by
redesignating subsections (b) and (c) as subsections (c) and (d),
respectively, and by inserting a new subsection (b) after subsection
(a). Pub. L. No. 98-450, 98 Stat. 1727. Section 4(b) of the Act states
that the provisions of section 109(b), as added by section 2 of the Act,
"shall not affect the right of an owner of a particular phonorecord of a
sound recording, who acquired such ownership before [October 4, 1984],
to dispose of the possession of that particular phonorecord on or after
such date of enactment in any manner permitted by section 109 of title
17, United States Code, as in effect on the day before the date of the
enactment of this Act." Pub. L. No. 98-450, 98 Stat. 1727, 1728. Section
4(c) of the Act also states that the amendments "shall not apply to
rentals, leasings, lendings (or acts or practices in the nature of
rentals, leasings, or lendings) occurring after the date which is 13
years after [October 4, 1984]" In 1988, the Record Rental Amendment Act
of 1984 was amended to extend the time period in section 4(c) from 5
years to 13 years. Pub. L. No. 100-617, 102 Stat. 3194. In 1993, the
North American Free Trade Agreement Implementation Act repealed section
4(c) of the Record Rental Amendment of 1984. Pub. L. No. 103-182, 107
Stat. 2057, 2114. Also in 1988, technical amendments to section 109(d)
inserted "(c)" in lieu of "(b)" and substituted "copyright" in lieu of
"coyright" Pub. L. No. 100-617, 102 Stat. 3194.

The Computer Software Rental Amendments Act of 1990 amended section
109(b) as follows: 1) paragraphs (2) and (3) were redesignated as
paragraphs (3) and (4), respectively; 2) paragraph (1) was struck out
and new paragraphs (1) and (2) were inserted in lieu thereof; and 3)
paragraph (4), as redesignated, was amended in its entirety with a new
paragraph (4) inserted in lieu thereof. Pub. L. No. 101-650, 104 Stat.
5089, 5134. The Act states that section 109(b), as amended, "shall not
affect the right of a person in possession of a particular copy of a
computer program, who acquired such copy before the date of the
enactment of this Act, to dispose of the possession of that copy on or
after such date of enactment in any manner permitted by section 109 of
title 17, United States Code, as in effect on the day before such date
of enactment." The Act also states that the amendments made to section
109(b) "shall not apply to rentals, leasings, or lendings (or acts or
practices in the nature of rentals, leasings, or lendings) occurring on
or after October 1, 1997." However, this limitation, which is set forth
in the first sentence of section 804 (c) of the Computer Software Rental
Amendments Act of 1990, at 104 Stat. 5136, was subsequently deleted in
1994 by the Uruguay Round Agreements Act. Pub. L. No. 103-465, 108 Stat.
4809, 4974.

The Computer Software Rental Amendments Act of 1990 also amended section
109 by adding at the end thereof subsection (e). Pub. L. No. 101-650,
104 Stat. 5089, 5135. That Act states that the provisions contained in
the new subsection (e) shall take effect 1 year after the date of
enactment of such Act, that is, one year after December 1, 1990. The Act
also states that such amendments so made "shall not apply to public
performances or displays that occur on or after October 1, 1995."

In 1994, the Uruguay Round Agreements Act amended section 109(a) by
adding the second sentence, which begins with "Notwithstanding the
preceding sentence." Pub. L. No. 103-465, 108 Stat. 4809, 4981.

41 In 1988, the Extension of Record Rental Amendment amended section
110 by adding paragraph (10). Pub. L. No. 97-366, 96 Stat. 1759. In
1997, the Technical Corrections to the Satellite Home Viewer Act amended
section 110 by inserting a semicolon in lieu of the period at the end of
paragraph (8); by inserting "; and" in lieu of the period at the end of
paragraph (9); and by inserting "(4)" in lieu of "4 above" in paragraph
(10). Pub. L. No. 105-80, 111 Stat. 1529, 1534. The Fairness in Music
Licensing Act of 1998 amended section 110, in paragraph 5, by adding
subparagraph (B) and by making conforming amendments to subparagraph
(A); by adding the phrase "or of the audiovisual or other devices
utilized in such performance" to paragraph 7; and by adding the last
paragraph to section 110 that begins "The exemptions provided under
paragraph (5)." Pub. L. No. 105-298, 112 Stat. 2827, 2830. In 1999, a
technical amendment made corrections to conform paragraph designations
that were affected by amendments previously made by the Fairness in
Music Licensing Act of 1998. Pub. L. No. 106-44, 113 Stat. 221.

42 In 1986, section 111(d) was amended by striking out paragraph (1)
and by redesignating paragraphs (2), (3), (4) and (5) as paragraphs (1),
(2), (3) and (4), respectively. Pub. L. 99-397, 100 Stat. 848. Also, in
1986, section 111(f) was amended by substituting "subsection (d)(1)" for
"subsection (d)(2)" in the last sentence of the definition of "secondary
transmission" and by adding a new sentence after the first sentence in
the definition of "local service area of a primary transmitter." Pub. L.
No. 99-397, 100 Stat. 848.

The Satellite Home Viewer Act of 1988 amended subsection 111(a) by
striking "or" at the end of paragraph (3), by redesignating paragraph
(4) as paragraph (5) and by inserting a new paragraph (4). Pub. L. No.
100-667, 102 Stat. 3935, 3949. That Act also amended section (d)(1)(A)
by adding the second sentence which begins with "In determining the
total number."* Id.*

The Copyright Royalty Tribunal Reform Act of 1993 amended section 111(d)
by substituting "Librarian of Congress" for "Copyright Royalty Tribunal"
where appropriate, by inserting a new sentence in lieu of the second and
third sentences of paragraph (2) and, in paragraph (4), by amending
subparagraph (B) in its entirety with substitute language. Pub. L. No.
103-198, 107 Stat. 2304, 2311.

The Satellite Home Viewer Act of 1994 amended section 111(f) by
inserting "microwave" after "wires, cables," in the paragraph relating
to the definition of "cable system" and by inserting new matter after
"April 15, 1976," in the paragraph relating to the definition of "local
service area of a primary transmitter." Pub. L. No. 103-369, 108 Stat.
3477, 3480. That Act provides that the amendment "relating to the
definition of the local service area of a primary transmitter, shall
take effect on July 1, 1994." *Id.*

In 1995, the Digital Performance in Sound Recordings Act amended section
111(c)(1) by inserting "and section 114(d)" in the first sentence, after
"of this subsection." Pub. L. No. 104-39, 109 Stat. 336, 348.

The Satellite Home Viewer Improvement Act of 1999 amended section 111 by
substituting "statutory" for "compulsory" and "programming" for
"programing," wherever they appeared. Pub. L. No. 106-113, 113 Stat.
1501, app. I at 1501A-543. The Act also amended sections 111(a) and (b)
by inserting "performance or display of a work embodied in a primary
transmission" in lieu of "primary transmission embodying a performance
or display of a work." It amended paragraph (1) of section 111(c) by
inserting "a performance or display of a work embodied in" after "by a
cable system of" and by striking "and embodying a performance or display
of a work." It amended subparagraphs (3) and (4) of section 111(a) by
inserting "a performance or display of a work embodied in a primary
transmission" in lieu of "a primary transmission" and by striking "and
embodying a performance or display of a work." *Id.*

43 Royalty rates specified by the compulsory licensing provisions of
this section are subject to adjustment by copyright arbitration royalty
panels appointed and convened by the Librarian of Congress in accordance
with the provisions of Chapter 8 of title 17 of the *United States Code,
*as amended by the Copyright Royalty Tribunal Reform Act of 1993, Pub.
L. No. 103-198, 107 Stat. 2304, 2311.

44 In 1998, the Digital Millennium Copyright Act amended section 112 by
redesignating subsection (a) as subsection (a)(1); by redesignating
former sections (a)(1), (a)(2) and (a)(3) as subsections (a)(1)(A), (a)
(1)(B) and (a)(1)(C), respectively; by adding subsection (a)(2); and by
amending the language in new subsection (a)(1). Pub. L. No. 105-304, 112
Stat. 2860, 2888. The Digital Millennium Copyright Act also amended
section 112 by redesignating subsection (e) as subsection (f) and adding
a new subsection (e). Pub. L. No. 105-304, 112 Stat. 2860, 2899. In
1999, a technical amendment to section 112(e) redesignated paragraphs
(3) through (10) as (2) through (9) and corrected the paragraph
references throughout that section to conform to those redesignations.
Pub. L. No. 106-44, 113 Stat. 221.

45 The Visual Artists Rights Act of 1990 amended section 113 by adding
subsection (d) at the end thereof. Pub. L. No. 101-650, 104 Stat. 5089,
5130.

46 The Digital Performance Right in Sound Recordings Act of 1995
amended section 114 as follows: 1) in subsection (a), by striking "and
(3)" and inserting in lieu thereof "(3) and (6)"; 2) in subsection (b)
in the first sentence, by striking "phonorecords, or of copies of motion
pictures and other audiovisual works," and inserting "phonorecords or
copies"; and 3) by striking subsection (d) and inserting in lieu thereof
new subsections (d), (e), (f), (g), (h), (i), and (j). Pub. L. No.
104-39, 109 Stat. 336. In 1997, subsection 114(f) was amended by
inserting all the text that appears after "December 31, 2000" (which is
now December 31, 2001, in paragraph (1)(A)) and by striking "and publish
in the Federal Register." Pub. L. No. 105-80, 111 Stat. 1529, 1531.

In 1998, the Digital Millennium Copyright Act amended section 114(d) by
replacing paragraphs (1)(A) and (2) with amendments in the nature of
substitutes. Pub. L. No. 105-304, 112 Stat. 2860, 2890. That Act also
amended section 114(f) by revising the title; by redesignating paragraph
(1) as paragraph (1)(A); by adding paragraph (1)(B) in lieu of
paragraphs (2), (3), (4) and (5); and by amending the language in newly
designated paragraph (1)(A), including revising the effective date from
December 31, 2000, to December 31, 2001. Pub. L. No. 105-304, 112 Stat.
2860, 2894. The Digital Millennium Copyright Act also amended subsection
114(g) by substituting "transmission" in lieu of "subscription
transmission," wherever it appears and, in the first sentence in
paragraph (g)(1), by substituting "transmission licensed under a
statutory license" in lieu of "subscription transmission licensed." Pub.
L. No. 105-304, 112 Stat. 2860, 2897. That Act also amended subsection
114(j) by redesignating paragraphs (2), (3), (5), (6), (7) and (8) as
(3), (5), (9), (12), (13) and (14), respectively; by amending paragraphs
(4) and (9) in their entirety and resdesignating them as paragraphs (7)
and (15), respectively; and by adding new definitions, including,
paragraph (2) defining "archived program," paragraph (4) defining
"continuous program," paragraph (6) defining "eligible nonsubscription
transmission," paragraph (8) defining "new subscription service,"
paragraph (10) defining "preexisting satellite digital audio radio
service" and paragraph (11) defining "preexisting subscription service."
Pub. L. No. 105-304, 112 Stat. 2860, 2897.

47 The Digital Millennium Copyright Act states that "the publication of
notice of proceedings under section 114(f)(1) . . . as in effect upon
the effective date of [the Digital Performance Right in Sound Recordings
Act of 1995, Pub. L. No. 104-39, 109 Stat. 336], 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." Pub. L. No. 105-304, 112 Stat. 2860, 2899.

48 The Digital Millennium Copyright Act contains an additional
effective date provision for the amendment that changed the date in
subsection 114(f)(1)(A) to December 31, 2001. This provision is
paragraph 405(a)(5) of the Digital Millennium Copyright Act which is in
Appendix V of this publication.

49 The Record Rental Amendment of 1984 amended section 115 by
redesignating paragraphs (3) and (4) of subsection (c) as paragraphs (4)
and (5), respectively, and by adding a new paragraph (3). Pub. L. No.
98-450, 98 Stat. 1727.

In 1997, section 115 was amended by striking "and publish in the Federal
Register" in subparagraph 115(c)(3)(D). Pub. L. No. 105-80, 111 Stat.
1529, 1531. The same legislation also amended section 115(c)(3)(E) by
replacing the phrases "sections 106(1) and (3)" and "sections 106(1) and
106(3)" with "paragraphs (1) and (3) of section 106." Pub. L. No.
105-80, 111 Stat. 1529, 1534.

The Digital Performance Right in Sound Recordings Act of 1995 amended
section 115 as follows: 1) in the first sentence of subsection (a)(1),
by striking "any other person" and inserting in lieu thereof "any other
person, including those who make phonorecords or digital phonorecord
deliveries,"; 2) in the second sentence of the same subsection, by
inserting before the period "including by means of a digital phonorecord
delivery"; 3) in the second sentence of subsection (c)(2), by inserting
"and other than as provided in paragraph (3)," after "For this
purpose,"; 4) by redesignating paragraphs (3), (4) and (5) of subsection
(c) as paragraphs (4), (5) and (6), respectively, and by inserting after
paragraph (2) a new paragraph (3); and (5) by adding after subsection
(c) a new subsection (d). Pub. L. No. 104-39, 109 Stat. 336, 344.

50 Royalty rates specified by the compulsory licensing provisions of
this section are subject to adjustment by copyright arbitration royalty
panels appointed and convened by the Librarian of Congress in accordance
with the provisions of Chapter 8 of title 17 of the *United States
Code*, as amended by the Copyright Royalty Tribunal Reform Act of 1993.
Pub. L. No. 103-198, 107 Stat. 2304.

51 Pursuant to this subsection and section 803(a)(3) of title 17, the
current rates have been established by regulation and may be found at 37
C.F.R. 255.

52 The Berne Convention Implementation Act of 1988 added section 116A.
Pub. L. No. 100-568, 102 Stat. 2853, 2855. The Copyright Royalty
Tribunal Reform Act of 1993 redesignated section 116A as section 116;
repealed the preexisting section 116; in the redesignated section 116,
struck subsections (b), (e), (f) and (g), and redesignated subsections
(c) and (d) as subsections (b) and (c), respectively; and substituted,
where appropriate, "Librarian of Congress" or "copyright arbitration
royalty panel" for "Copyright Royalty Tribunal." Pub. L. No. 103-198,
107 Stat. 2304, 2309. In 1997, section 116 was amended by rewriting
subsection (b)(2) and by adding a new subsection (d). Pub. L. No.
105-80, 111 Stat. 1529, 1531.

53 In 1980, section 117 was amended in its entirety. Pub. L. No.
96-517, 94 Stat. 3015, 3028. In 1998, the Computer Maintenance
Competition Assurance Act amended section 117 by inserting headings for
subsections (a) and (b) and by adding subsections (c) and (d). Pub. L.
No. 105-304, 112 Stat. 2860, 2887.

54 The Copyright Royalty Tribunal Reform Act of 1993 amended section
118 by striking the first two sentences of subsection (b), by
substituting a new first sentence in paragraph (3) and by making general
conforming amendments throughout. Pub. L. 103-198, 107 Stat. 2304, 2309.
In 1999, a technical amendment deleted paragraph (2) from section
118(e). Pub. L. No. 106-44, 113 Stat. 221, 222.

55 The Satellite Home Viewer Act of 1988 added section 119. Pub. L. No.
100-667, 102 Stat. 3935, 3949. The Copyright Royalty Tribunal Reform Act
of 1993 amended subsections (b) and (c) of section 119 by substituting
"Librarian of Congress" in lieu of "Copyright Royalty Tribunal" wherever
it appeared and by making related conforming amendments. Pub. L. No.
103-198, 107 Stat. 2304, 2310. The Copyright Royalty Tribunal Reform Act
of 1993 also amended paragraph (c)(3) by deleting subparagraphs (B),
(C), (E) and (F) and by redesignating subparagraph (D) as (B), (G) as
(C) and (H) as (D). The redesignated subparagraph (C) was amended in its
entirety and paragraph (c)(4) was deleted. *Id.*

The Satellite Home Viewer Act of 1994 further amended section 119. Pub.
L. No. 103-369, 108 Stat. 3477. In 1997, technical corrections and
clarifications were made to the Satellite Home Viewer Act of 1994. Pub.
L. No. 105-80, 111 Stat. 1529. Those two acts amended section 119 as
follows: 1) by deleting or replacing obsolete effective dates; 2) in
subsection (a)(5), by adding subparagraph (D); 3) in subsection (a), by
adding paragraphs (8), (9) and (10); 4) in subsection (b)(1)(B), by
adjusting the royalty rate for retransmitted superstations; 5) in
subsection (c)(3), by replacing subparagraph (B) with an amendment in
the nature of a substitute; 6) in subsections (d)(2) and (d)(6), by
modifying the definition of "network station" and "satellite carrier";
and 7) in subsection (d), by adding paragraph 11 to define "local
market."

Pursuant to section 4 of the Satellite Home Viewer Act of 1994, the
changes made by that Act to section 119 of the *United States Code*
ceased to be effective on December 31, 1999. Pub. L. No. 103-369, 108
Stat. 3477, 3481. However, section 1003 of the Satellite Home Viewer
Improvement Act of 1999 extended that date to December 31, 2004. Pub. L.
No. 106-113, 113 Stat. 1501, app. I at 1501A-527.

The Digital Performance Right in Sound Recordings Act of 1995 amended
section 119 in the first sentence of subsections (a)(1) and (a)(2)(A),
respectively, by inserting the words "and section 114(d)" after "of this
subsection." Pub. L. No. 104-39, 109 Stat. 336, 348. In 1999, a
technical amendment substituted "network station's" for "network's
stations" in section 119(a)(8)(C)(ii). Pub. L. No. 106-44, 113 Stat.
221, 222.

The Satellite Home Viewer Improvement Act of 1999 amended section 119(a)
(1) as follows: 1) by inserting "AND PBS SATELLITE FEED" after
"SUPERSTATIONS" in the paragraph heading; 2) by inserting "performance
or display of a work embodied in a primary transmission made by a
superstation or by the Public Broadcasting Service satellite feed" in
lieu of "primary transmission made by a superstation and embodying a
performance or display of a work," (see endnote 55, *infra*) and 3) by
adding the last sentence, which begins "In the case of the Public
Broadcasting Service." Pub. L. No. 106-113, 113 Stat. 1501, app. I at
1501A-530 and 543. The Act states that these amendments shall be
effective as of July 1, 1999, except for a portion of the second item,
starting with "performance or display" through "superstation." Pub. L.
No. 106-113, 113 Stat. 1501, app. I at 1501A-544. The Act also amended
section 119(a) by inserting the phrase "with regard to secondary
transmissions the satellite carrier is in compliance with the rules,
regulations, or authorization of the Federal Communications Commission
governing the carriage of television broadcast stations signals" in
paragraphs (1) and (2) and by inserting into paragraph (2), "a
performance or display of a work embodied in a primary transmission made
by a network station" in lieu of "programming contained in a primary
transmission made by a network station and embodying a performance or
display of a work." *Id.* at 1501A-531 and 544. The Act amended section
119(a)(2) by substituting new language for paragraph (B) and, in
paragraph (C), by deleting "currently" after "the satellite carrier"
near the end of the first sentence. *Id.* at 1501A-528 and 544. It also
amended section 119(a)(4) by inserting "a performance or display of a
work embodied in" after "by a satellite carrier of" and by deleting "and
embodying a performance or display of a work." *Id.* at 1501A-544. The
Satellite Home Viewer Improvement Act of 1999 further amended section
119(a) by adding subparagraph (E) to paragraph (5). *Id.* at 1501A-528.
It amended section 119(a)(6) by inserting "performance or display of a
work embodied in" after "by a satellite carrier of" and by deleting "and
embodying a performance or display of a work."* Id.* The Act also
amended section 119(a) by adding paragraphs (11) and (12). *Id.* at
1501A-529 and 531.

The Satellite Home Viewer Improvement Act of 1999 amended section 119(b)
(1) by inserting "or the Public Broadcasting Service satellite feed"
into subparagraph (B). (See endnote 60, *infra.*) *Id.* at 1501A-530.
The Act amended section 119(c) by adding a new paragraph (4). *Id.* at
1501A-527. The Act amended section 119(d) by substituting new language
for paragraphs (9) through (11) and by adding paragraph (12).* Id.* at
1501A-527, 530 and 531. The Act substituted new language for section
119(e). *Id.* at 1501A-529.

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 which 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. To accommodate both
amendments, the phrase "or by the Public Broadcasting Service satellite
feed" has been placed at the end of the new language, after
"superstation."

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." Pub. L. No. 103-369, 108 Stat. 3477, 3481.

58 It appears that section 1011(b)(2)(D)(i) of the Satellite Home
Viewer Improvement Act of 1999 inadvertently omitted the word "a" when
it amended this paragraph. Pub. L. No. 106-113, 113 Stat. 1501, app. I
at 1501A-528.

59 The Satellite Home Viewer Act of 1994 states that "The provisions of
section 119(a)(8)[,] . . . relating to transitional signal intensity
measurements, shall cease to be effective on December 31, 1996." Pub. L.
No. 103-369, 108 Stat. 3477, 3481.

60 It appears that Congress intended for the Satellite Home Viewer
Improvement Act of 1999 to amend section 119(a) of title 17, as amended
by section 1005(d) of the Satellite Home Viewer Improvement Act of 1999,
by adding a new paragraph (12) at the end thereof. Pub. L. No. 106-113,
113 Stat. 1501, app. I at 1501A-531. However, due to a drafting error,
the reference in the amendment is to section 119(a) as amended by
section 1005(e), instead.

61 It appears that Congress intended for the Satellite Home Viewer
Improvement Act of 1999 to amend section 119(b)(1)(B)(ii) to insert "or
the Public Broadcasting Service satellite feed" after "network station."
Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-530. However, due
to a drafting error, the reference in the amendment is to section 119(b)
(1)(B)(iii), instead. The Act states that this amendment shall be
effective as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app.
I at 1501A-544.

62 The Satellite Home Viewer Improvement Act of 1999 states that
section 119(c)(4) shall be effective as of July 1, 1999. Pub. L. No.
106-113, 113 Stat. 1501, app. I at 1501A-527.

63 The Satellite Home Viewer Improvement Act of 1999 states that
section 119(c)(5) shall be effective as of July 1, 1999. Pub. L. No.
106-113, 113 Stat. 1501, app. I at 1501A-544.

64 The Satellite Home Viewer Improvement Act of 1999 states that
section 119(d)(9) shall be effective as of July 1, 1999. Pub. L. No.
106-113, 113 Stat. 1501, app. I at 1501A-544.

65 The Satellite Home Viewer Improvement Act of 1999 states that
section 119(d)(12) shall be effective as of July 1, 1999. Pub. L. No.
106-113, 113 Stat. 1501, app. I at 1501A-544.

66 In 1990, the Architectural Works Copyright Protection Act added
section 120. Pub. L. No. 101-650, 104 Stat. 5089, 5133.

67 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.

68 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.

------------------------------------------------------------------------

Chapter 2

+ 201. Ownership of copyright
+ 202. Ownership of copyright as distinct from ownership of material
object
+ 203. Termination of transfers and licenses granted by the author
+ 204. Execution of transfers of copyright ownership
+ 205. Recordation of transfers and other documents

Section 201. Ownership of copyright {1}

(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 coowner of copyright in the work.

(b) Works Made for Hire. In the case of a work made for hire, the
employer 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 collective
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 governmental 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]

Section 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 in which the work is first fixed, does
not of itself convey any rights in the copyrighted 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.

Section 203. Termination of transfers and licenses granted by the
author [3]

(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 following 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 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. 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
grandchildren are not living, the author's executor, administrator,
personal representative, 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 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
writing, signed by the number and proportion of owners of termination
interests required under clauses (1) and (2) of this subsection, or by
their duly authorized 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 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.

(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
agreement 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 following limitations:

(1) 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.

(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,
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 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 subsection 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
covered 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.

Section 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 transfer, 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 issued 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.

Section 205. Recordation of transfers and other documents [4]

(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.

(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 registration number of the work; and

(2) registration has been made for the work.

(d) Priority Between Conflicting Transfers. As between two conflicting
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
evidenced 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 deleting "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), respectively. Pub. L. No. 100-568, 102 Stat.
2853, 2857.

------------------------------------------------------------------------

Chapter 3 [1]

Duration of Copyright

+ 301. Preemption with respect to other laws
+ 302. Duration of copyright: Works created on or after January 1,
1978
+ 303. Duration of copyright: Works created but not published or
copyrighted before January 1, 1978
+ 304. Duration of copyright: Subsisting copyrights
+ 305. Duration of copyright: Terminal date

Section 301. Preemption with respect to other laws [2]

(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 expression 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 unpublished,
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
January 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 Artists 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]

(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 effective
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

Section 302. Duration of copyright: Works created on or after January 1,
1978 [4]

(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
authors 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
requirements 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
statement 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 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 information relating to the death of authors of
copyrighted 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 Office 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.

Section 303. Duration of copyright: Works created but not published or
copyrighted before January 1, 1978 [5]

(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.

Section 304. Duration of copyright: Subsisting copyrights [6]

(a) Copyrights in Their First Term on January 1, 1978.

(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
assignee or licensee of the individual author) or by an employer for
whom such work is made for hire,

the proprietor of such copyright shall be entitled to a renewal and
extension 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
children 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 application is made; or

(ii) if no such application is made or the claim pursuant to such
application 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
specified 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
application 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-

(i) within 1 year before the expiration of the original term of
copyright by any person entitled under paragraph (1)(B) or (C) to such
further 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 authority 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 Act. [7] 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 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:

(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
writing 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.

(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
agreement 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 author, 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
become vested on the date the notice of termination has been served as
provided 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 further 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 persons 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
representatives, 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 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 Act [9] for which the termination right provided
in subsection (c) has expired by such date, where the author or owner of
the termination 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.

Section 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 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. United Christian Scientists v. Christian Science Board of
Directors, First 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, six months
after December 1, 1990. Pub. L. No. 101-650, 104 Stat. 5089, 5132. See
also endnote 37, chapter 1.

4 In 1998, the Sonny Bono Copyright Term Extension Act amended section
302 by substituting "70" for "fifty," "95" for "seventy-five" and "120"
for "one hundred" each place they appeared. Pub. L. No. 105-298, 112
Stat. 2827.

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 subsection (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 effective 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 substituting "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 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 subsection (d), within the five-
year period specified by subsection (d)(2)," into the first sentence of
subparagraph (4)(A). *Id.*

7 A series of nine Acts of Congress extended until December 31, 1976,
previously renewed copyrights in which the renewal term would otherwise
have expired between September 19, 1962 and December 31, 1976. The last
of these enactments is Pub. L. No. 93-573, 88 Stat. 1873, enacted
December 31, 1974, which cites the eight earlier acts. See also section
102 of the Transitional and Supplementary Provisions of the Copyright
Act of 1976, in Part I of the Appendix. Pub. L. No. 94-553, 90 Stat.
2541.

8 The effective date of the Sonny Bono Copyright Term Extension Act is
October 27, 1998.

9 See endnote 8, *supra*.

------------------------------------------------------------------------

Chapter 4

+ 401. Notice of copyright: Visually perceptible copies
+ 402. Notice of copyright: Phonorecords of sound recordings
+ 403. Notice of copyright: Publications incorporating United States
Government works
+ 404. Notice of copyright: Contributions to collective works
+ 405. Notice of copyright: Omission of notice on certain copies and
phonorecords
+ 406. Notice of copyright: Error in name or date on certain copies
and phonorecords
+ 407. Deposit of copies or phonorecords for Library of Congress
+ 408. Copyright registration in general
+ 409. Application for copyright registration
+ 410. Registration of claim and issuance of certificate
+ 411. Registration and infringement actions
+ 412. Registration as prerequisite to certain remedies for
infringement

Section 401. Notice of copyright: Visually perceptible copies [1]

(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 distributed 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 accompanying 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
designation 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).

Section 402. Notice of copyright: Phonorecords of sound recordings [2]

(a) General Provisions. Whenever a sound recording 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 distributed phonorecords of the sound recording.

(b) Form of Notice. If a notice appears on the phonorecords, it shall
consist of the following three elements:

(1) the symbol [P in a circle] (the letter P in a circle); and

(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
abbreviation 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).

Section 403. Notice of copyright: Publications incorporating United States
Government works [3]

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.

Section 404. Notice of copyright: Contributions to collective works [4]

(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 applicable 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
authority of the copyright owner before the effective date of the Berne
Convention Implementation Act of 1988, where the person named in a
single notice applicable 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 provisions of section 406(a).

Section 405. Notice of copyright: Omission of notice on certain copies and
phonorecords [5]

(a) Effect of Omission on Copyright. 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, the omission 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
number 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
phonorecord 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.

Section 406. Notice of copyright: Error in name or date on certain copies
and phonorecords [6]

(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 ownership 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
phonorecords distributed before the effective date of the Berne
Convention Implementation 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 Convention Implementation Act of
1988.

Section 407. Deposit of copies or phonorecords for Library of Congress [7]

(a) Except as provided by subsection (c), and subject to the provisions
of subsection (e), the owner of copyright or of the exclusive right of
publication in a 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
provisions 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 Copyrights shall, when requested by the depositor and
upon payment of the fee prescribed 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 only one copy or phonorecord with respect to any categories.
Such regulations shall provide either for complete exemption from the
deposit requirements of this section, or for alternative forms of
deposit aimed at providing a satisfactory archival record of a work
without imposing practical or financial hardships on the depositor,
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 under 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
transmitted 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 acquisition, through deposit or
otherwise, of copies or phonorecords of such programs for the
collections of the Library of Congress.

(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 phonorecord 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 exceed 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 liability 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
unpublished 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.

Section 408. Copyright registration in general [8]

(a) Registration Permissive. At any time during the subsistence of the
first term of copyright in any published or unpublished work in which
the copyright was secured before January 1, 1978, and during the
subsistence of any copyright 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 subsection
(c), the material deposited for registration shall include-

(1) in the case of an unpublished work, one complete copy or
phonorecord;

(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
complete 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
section 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 section 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 administrative classes into which works are to be placed
for purposes of deposit and registration, and the nature of the copies
or phonorecords to be deposited 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 registration 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 contribution was first published; and

(B) if the application identifies each work separately, including the
periodical 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 periodicals, 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

(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
supplementary 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 corrected 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.

Section 409. Application for copyright registration [9]

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 subsection (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
bearing upon the preparation or identification of the work or the
existence, ownership, 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.

Section 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 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
accordance 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 thereafter shall be
within the discretion of the court.

(d) The effective date of a copyright registration is the day on which
an application, 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.

Section 411. Registration and infringement actions [10]

(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 registration of the
copyright claim has been made in accordance 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 infringement 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
fixation, identifying the work and the specific time and source of its
first transmission, and declaring an intention to secure copyright in
the work; and

(2) makes registration for the work, if required by subsection (a),
within three months after its first transmission.

Section 412. Registration as prerequisite to certain remedies for
infringement [11]

In any action under this title, other than an action brought for a
violation of the rights of the author under section 106A(a) 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 Convention Implementation Act of 1988," at
the beginning of the sentence. Pub. L. No. 100-568, 102 Stat. 2853,
2858.

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 distributed by authority of the copyright
owner before the effective date of the Berne Convention 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 distributed 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 subsection (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.

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), by inserting ", if required by subsection (a)," after "work";
and 3) by inserting "and infringement actions" in the heading, in lieu
of "as prerequisite to infringement 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.

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.

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.

------------------------------------------------------------------------

Chapter 5 [1]

+ 501. Infringement of copyright
+ 502. Remedies for infringement: Injunctions
+ 503. Remedies for infringement: Impounding and disposition of
infringing articles
+ 504. Remedies for infringement: Damages and profits
+ 505. Remedies for infringement: Costs and attorney's fees
+ 506. Criminal offenses
+ 507. Limitations on actions
+ 508. Notification of filing and determination of actions
+ 509. Seizure and forfeiture
+ 510. Remedies for alteration of programming by cable systems
+ 511. Liability of States, instrumentalities of States, and State
officials for infringement of copyright
+ 512. Limitations on liability relating to material online
+ 513. [2] Determination of reasonable license fees for individual
proprietors

Section 501. Infringement of copyright [3]

(a) Anyone who violates any of the exclusive rights of the copyright
owner as provided by sections 106 through 121 or of the author as
provided in section 106A(a), or who imports copies or phonorecords into
the United States in violation 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
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 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
performance 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 television
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 carrier 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 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 station.

(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 transmission 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.

Section 502. Remedies for infringement: Injunctions

(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 infringement 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.

Section 503. Remedies for infringement: Impounding and disposition of
infringing articles

(a) At any time while an action under this title is pending, the court
may order 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.

Section 504. Remedies for infringement: Damages and profits [4]

(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
recover 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.

(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 infringements 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 liable 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 discretion 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 reproducing a transmission program
embodying a performance of such a work.

(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
defense 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 section, 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 proprietor of the
establishment concerned should have paid the plaintiff for such use
during the preceding period of up to 3 years.

Section 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 officer 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.

Section 506. Criminal offenses [5]

(a) Criminal Infringement. Any person who infringes a copyright
willfully either

(1) for purposes of commercial advantage or private financial gain, or

(2) 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,

shall be punished as provided under section 2319 of title 18, United
States Code. For purposes of this subsection, evidence of reproduction
or distribution of a copyrighted work, by itself, shall not be
sufficient to establish willful infringement.

(b) Forfeiture and Destruction. 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 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 purport
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 applies
to infringement of the rights conferred by section 106A(a).

Section 507. Limitations on actions [6]

(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.

Section 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 number 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.

Section 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,

(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
forfeitures, 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 Department 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.

Section 510. Remedies for alteration of programming by cable systems [7]

(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.

Section 511. Liability of States, instrumentalities of States, and State
officials for infringement of copyright [8]

(a) In General. 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 a copyright owner provided
by sections 106 through 121, for importing copies 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 infringing
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.

Section 512. Limitations on liability relating to material online [9]

(a) Transitory Digital Network Communications. A service provider shall
not be liable for monetary relief, or, except as provided in subsection
(j), for injunctive or other equitable relief, for infringement of
copyright by reason of the provider's transmitting, routing, or
providing connections for, material through a system or network
controlled or operated by or for the service provider, or by reason of
the intermediate and transient storage of that material in the course of
such transmitting, routing, or providing connections, if-

(1) the transmission of the material was initiated by or at the
direction of a person other than the service provider;

(2) the transmission, routing, provision of connections, or storage is
carried out through an automatic technical process without selection of
the material by the service provider;

(3) the service provider does not select the recipients of the material
except as an automatic response to the request of another person;

(4) no copy of the material made by the service provider in the course
of such intermediate or transient storage is maintained on the system or
network in a manner ordinarily accessible to anyone other than
anticipated recipients, and no such copy is maintained on the system or
network in a manner ordinarily accessible to such anticipated recipients
for a longer period than is reasonably necessary for the transmission,
routing, or provision of connections; and

(5) the material is transmitted through the system or network without
modification of its content.

(b) System Caching.

(1) Limitation on Liability. A service provider shall not be liable for
monetary relief, or, except as provided in subsection (j), for
injunctive or other equitable relief, for infringement of copyright by
reason of the intermediate and temporary storage of material on a system
or network controlled or operated by or for the service provider in a
case in which-

(A) the material is made available online by a person other than the
service provider;

(B) the material is transmitted from the person described in
subparagraph (A) through the system or network to a person other than
the person described in subparagraph (A) at the direction of that other
person; and

(C) the storage is carried out through an automatic technical process
for the purpose of making the material available to users of the system
or network who, after the material is transmitted as described in
subparagraph (B), request access to the material from the person
described in subparagraph (A), if the conditions set forth in paragraph
(2) are met.

(2) Conditions. The conditions referred to in paragraph (1) are that-

(A) the material described in paragraph (1) is transmitted to the
subsequent users described in paragraph (1)(C) without modification to
its content from the manner in which the material was transmitted from
the person described in paragraph (1)(A);

(B) the service provider described in paragraph (1) complies with rules
concerning the refreshing, reloading, or other updating of the material
when specified by the person making the material available online in
accordance with a generally accepted industry standard data
communications protocol for the system or network through which that
person makes the material available, except that this subparagraph
applies only if those rules are not used by the person described in
paragraph (1)(A) to prevent or unreasonably impair the intermediate
storage to which this subsection applies;

(C) the service provider does not interfere with the ability of
technology associated with the material to return to the person
described in paragraph (1)(A) the information that would have been
available to that person if the material had been obtained by the
subsequent users described in paragraph (1)(C) directly from that
person, except that this subparagraph applies only if that technology-

(i) does not significantly interfere with the performance of the
provider's system or network or with the intermediate storage of the
material;

(ii) is consistent with generally accepted industry standard
communications protocols; and

(iii) does not extract information from the provider's system or network
other than the information that would have been available to the person
described in paragraph (1)(A) if the subsequent users had gained access
to the material directly from that person;

(D) if the person described in paragraph (1)(A) has in effect a
condition that a person must meet prior to having access to the
material, such as a condition based on payment of a fee or provision of
a password or other information, the service provider permits access to
the stored material in significant part only to users of its system or
network that have met those conditions and only in accordance with those
conditions; and

(E) if the person described in paragraph (1)(A) makes that material
available online without the authorization of the copyright owner of the
material, the service provider responds expeditiously to remove, or
disable access to, the material that is claimed to be infringing upon
notification of claimed infringement as described in subsection (c)(3),
except that this subparagraph applies only if-

(i) the material has previously been removed from the originating site
or access to it has been disabled, or a court has ordered that the
material be removed from the originating site or that access to the
material on the originating site be disabled; and

(ii) the party giving the notification includes in the notification a
statement confirming that the material has been removed from the
originating site or access to it has been disabled or that a court has
ordered that the material be removed from the originating site or that
access to the material on the originating site be disabled.

(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
infringing activity, in a case in which the service provider has the
right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph
(3), responds expeditiously to remove, or disable access to, the
material that is claimed to be infringing or to be the subject of
infringing activity.

(2) Designated Agent. The limitations on liability established in this
subsection apply to a service provider only if the service provider has
designated an agent to receive notifications of claimed infringement
described in paragraph (3), by making available through its service,
including on its website in a location accessible to the public, and by
providing to the Copyright Office, substantially the following
information:

(A) the name, address, phone number, and electronic mail address of the
agent.

(B) other contact information which the Register of Copyrights may deem
appropriate.

The Register of Copyrights shall maintain a current directory of agents
available to the public for inspection, including through the Internet,
in both electronic and hard copy formats, and may require payment of a
fee by service providers to cover the costs of maintaining the
directory.

(3) Elements of Notification.

(A) To be effective under this subsection, a notification of claimed
infringement must be a written communication provided to the designated
agent of a service provider that includes substantially the following:

(i) A physical or electronic signature of a person authorized to act on
behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been
infringed, or, if multiple copyrighted works at a single online site are
covered by a single notification, a representative list of such works at
that site.

(iii) Identification of the material that is claimed to be infringing or
to be the subject of infringing activity and that is to be removed or
access to which is to be disabled, and information reasonably sufficient
to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to
contact the complaining party, such as an address, telephone number,
and, if available, an electronic mail address at which the complaining
party may be contacted.

(v) A statement that the complaining party has a good faith belief that
use of the material in the manner complained of is not authorized by the
copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate,
and under penalty of perjury, that the complaining party is authorized
to act on behalf of the owner of an exclusive right that is allegedly
infringed.

(B)(i) Subject to clause (ii), a notification from a copyright owner or
from a person authorized to act on behalf of the copyright owner that
fails to comply substantially with the provisions of subparagraph (A)
shall not be considered under paragraph (1)(A) in determining whether a
service provider has actual knowledge or is aware of facts or
circumstances from which infringing activity is apparent.

(ii) In a case in which the notification that is provided to the service
provider's designated agent fails to comply substantially with all the
provisions of subparagraph (A) but substantially complies with clauses
(ii), (iii), and (iv) of subparagraph (A), clause (i) of this
subparagraph applies only if the service provider promptly attempts to
contact the person making the notification or takes other reasonable
steps to assist in the receipt of notification that substantially
complies with all the provisions of subparagraph (A).

(d) Information Location Tools. A service provider shall not be liable
for monetary relief, or, except as provided in subsection (j), for
injunctive or other equitable relief, for infringement of copyright by
reason of the provider referring or linking users to an online location
containing infringing material or infringing activity, by using
information location tools, including a directory, index, reference,
pointer, or hypertext link, if the service provider-

(1)(A) does not have actual knowledge that the material or activity is
infringing;

(B) in the absence of such actual knowledge, is not aware of facts or
circumstances from which infringing activity is apparent; or

(2) does not receive a financial benefit directly attributable to the
infringing activity, in a case in which the service provider has the
right and ability to control such activity; and

(3) upon notification of claimed infringement as described in subsection
(c)(3), responds expeditiously to remove, or disable access to, the
material that is claimed to be infringing or to be the subject of
infringing activity, except that, for purposes of this paragraph, the
information described in subsection (c)(3)(A)(iii) shall be
identification of the reference or link, to material or activity claimed
to be infringing, that is to be removed or access to which is to be
disabled, and information reasonably sufficient to permit the service
provider to locate that reference or link.

(e) Limitation on Liability of Nonprofit Educational Institutions. (1)
When a public or other nonprofit institution of higher education is a
service provider, and when a faculty member or graduate student who is
an employee of such institution is performing a teaching or research
function, for the purposes of subsections (a) and (b) such faculty
member or graduate student shall be considered to be a person other than
the institution, and for the purposes of subsections (c) and (d) such
faculty member's or graduate student's knowledge or awareness of his or
her infringing activities shall not be attributed to the institution,
if-

(A) such faculty member's or graduate student's infringing activities do
not involve the provision of online access to instructional materials
that are or were required or recommended, within the preceding 3-year
period, for a course taught at the institution by such faculty member or
graduate student;

(B) the institution has not, within the preceding 3-year period,
received more than 2 notifications described in subsection (c)(3) of
claimed infringement by such faculty member or graduate student, and
such notifications of claimed infringement were not actionable under
subsection (f); and

(C) the institution provides to all users of its system or network
informational materials that accurately describe, and promote compliance
with, the laws of the United States relating to copyright.

(2) 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
misrepresents under this section-

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or
misidentification,

shall be liable for any damages, including costs and attorneys' fees,
incurred by the alleged infringer, by any copyright owner or copyright
owner's authorized licensee, or by a service provider, who is injured by
such misrepresentation, as the result of the service provider relying
upon such misrepresentation in removing or disabling access to the
material or activity claimed to be infringing, or in replacing the
removed material or ceasing to disable access to it.

(g) Replacement of Removed or Disabled Material and Limitation on Other
Liability.

(1) No Liability for Taking Down Generally. Subject to paragraph (2), a
service provider shall not be liable to any person for any claim based
on the service provider's good faith disabling of access to, or removal
of, material or activity claimed to be infringing or based on facts or
circumstances from which infringing activity is apparent, regardless of
whether the material or activity is ultimately determined to be
infringing.

(2) Exception. Paragraph (1) shall not apply with respect to material
residing at the direction of a subscriber of the service provider on a
system or network controlled or operated by or for the service provider
that is removed, or to which access is disabled by the service provider,
pursuant to a notice provided under subsection (c)(1)(C), unless the
service provider-

(A) takes reasonable steps promptly to notify the subscriber that it has
removed or disabled access to the material;

(B) upon receipt of a counter notification described in paragraph (3),
promptly provides the person who provided the notification under
subsection (c)(1)(C) with a copy of the counter notification, and
informs that person that it will re-place the removed material or cease
disabling access to it in 10 business days; and

(C) replaces the removed material and ceases disabling access to it not
less than 10, nor more than 14, business days following receipt of the
counter notice, unless its designated agent first receives notice from
the person who submitted the notification under subsection (c)(1)(C)
that such person has filed an action seeking a court order to restrain
the subscriber from engaging in infringing activity relating to the
material on the service provider's system or network.

(3) Contents of Counter Notification. To be effective under this
subsection, a counter notification must be a written communication
provided to the service provider's designated agent that includes
substantially the following:

(A) A physical or electronic signature of the subscriber.

(B) Identification of the material that has been removed or to which
access has been disabled and the location at which the material appeared
before it was removed or access to it was disabled.

(C) A statement under penalty of perjury that the subscriber has a good
faith belief that the material was removed or disabled as a result of
mistake or misidentification of the material to be removed or disabled.

(D) The subscriber's name, address, and telephone number, and a
statement that the subscriber consents to the jurisdiction of Federal
District Court for the judicial district in which the address is
located, or if the subscriber's address is outside of the United States,
for any judicial district in which the service provider may be found,
and that the subscriber will accept service of process from the person
who provided notification under subsection (c)(1)(C) or an agent of such
person.

(4) Limitation on Other Liability. A service provider's compliance with
paragraph (2) shall not subject the service provider to liability for
copyright infringement with respect to the material identified in the
notice provided under subsection (c)(1)(C).

(h) Subpoena to Identify Infringer.

(1) Request. A copyright owner or a person authorized to act on the
owner's behalf may request the clerk of any United States district court
to issue a subpoena to a service provider for identification of an
alleged infringer in accordance with this subsection.

(2) Contents of Request. The request may be made by filing with the
clerk-

(A) a copy of a notification described in subsection (c)(3)(A);

(B) a proposed subpoena; and

(C) a sworn declaration to the effect that the purpose for which the
subpoena is sought is to obtain the identity of an alleged infringer and
that such information will only be used for the purpose of protecting
rights under this title.

(3) Contents of Subpoena. The subpoena shall authorize and order the
service provider receiving the notification and the subpoena to
expeditiously disclose to the copyright owner or person authorized by
the copyright owner information sufficient to identify the alleged
infringer of the material described in the notification to the extent
such information is available to the service provider.

(4) Basis for Granting Subpoena. If the notification filed satisfies the
provisions of subsection (c)(3)(A), the proposed subpoena is in proper
form, and the accompanying declaration is properly executed, the clerk
shall expeditiously issue and sign the proposed subpoena and return it
to the requester for delivery to the service provider.

(5) Actions of Service Provider Receiving Subpoena. Upon receipt of the
issued subpoena, either accompanying or subsequent to the receipt of a
notification described in subsection (c)(3)(A), the service provider
shall expeditiously disclose to the copyright owner or person authorized
by the copyright owner the information required by the subpoena,
notwithstanding any other provision of law and regardless of whether the
service provider responds to the notification.

(6) Rules Applicable to Subpoena. Unless otherwise provided by this
section or by applicable rules of the court, the procedure for issuance
and delivery of the subpoena, and the remedies for noncompliance with
the subpoena, shall be governed to the greatest extent practicable by
those provisions of the Federal Rules of Civil Procedure governing the
issuance, service, and enforcement of a subpoena duces tecum.

(i) Conditions for Eligibility.

(1) Accommodation of Technology. The limitations on liability
established by this section shall apply to a service provider only if
the service provider-

(A) has adopted and reasonably implemented, and informs subscribers and
account holders of the service provider's system or network of, a policy
that provides for the termination in appropriate circumstances of
subscribers and account holders of the service provider's system or
network who are repeat infringers; and

(B) accommodates and does not interfere with standard technical
measures.

(2) Definition. As used in this subsection, the term "standard technical
measures" means technical measures that are used by copyright owners to
identify or protect copyrighted works and-

(A) have been developed pursuant to a broad consensus of copyright
owners and service providers in an open, fair, voluntary, multi-industry
standards process;

(B) are available to any person on reasonable and nondiscriminatory
terms; and

(j) Injunctions. The following rules shall apply in the case of any
application for an injunction under section 502 against a service
provider that is not subject to monetary remedies under this section:

(1) Scope of Relief. (A) With respect to conduct other than that which
qualifies for the limitation on remedies set forth in subsection (a),
the court may grant injunctive relief with respect to a service provider
only in one or more of the following forms:

(i) An order restraining the service provider from providing access to
infringing material or activity residing at a particular online site on
the provider's system or network.

(ii) An order restraining the service provider from providing access to
a subscriber or account holder of the service provider's system or
network who is engaging in infringing activity and is identified in the
order, by terminating the accounts of the subscriber or account holder
that are specified in the order.

(iii) Such other injunctive relief as the court may consider necessary
to prevent or restrain infringement of copyrighted material specified in
the order of the court at a particular online location, if such relief
is the least burdensome to the service provider among the forms of
relief comparably effective for that purpose.

(B) If the service provider qualifies for the limitation on remedies
described in subsection (a), the court may only grant injunctive relief
in one or both of the following forms:

(i) An order restraining the service provider from providing access to a
subscriber or account holder of the service provider's system or network
who is using the provider's service to engage in infringing activity and
is identified in the order, by terminating the accounts of the
subscriber or account holder that are specified in the order.

(ii) An order restraining the service provider from providing access, by
taking reasonable steps specified in the order to block access, to a
specific, identified, online location outside the United States.

(2) Considerations. The court, in considering the relevant criteria for
injunctive relief under applicable law, shall consider-

(A) whether such an injunction, either alone or in combination with
other such injunctions issued against the same service provider under
this subsection, would significantly burden either the provider or the
operation of the provider's system or network;

(B) the magnitude of the harm likely to be suffered by the copyright
owner in the digital network environment if steps are not taken to
prevent or restrain the infringement;

(C) whether implementation of such an injunction would be technically
feasible and effective, and would not interfere with access to
noninfringing material at other online locations; and

(D) whether other less burdensome and comparably effective means of
preventing or restraining access to the infringing material are
available.

(3) Notice and Ex Parte Orders. Injunctive relief under this subsection
shall be available only after notice to the service provider and an
opportunity for the service provider to appear are provided, except for
orders ensuring the preservation of evidence or other orders having no
material adverse effect on the operation of the service provider's
communications network.

(k) Definitions.

(1) Service Provider. (A) As used in subsection (a), the term "service
provider" means an entity offering the transmission, routing, or
providing of connections for digital online communications, between or
among points specified by a user, of material of the user's choosing,
without modification to the content of the material as sent or received.

(B) As used in this section, other than subsection (a), the term
"service provider" means a provider of online services or network
access, or the operator of facilities therefor, and includes an entity
described in subparagraph (A).

(2) Monetary Relief. As used in this section, the term "monetary relief"
means damages, costs, attorneys' fees, and any other form of monetary
payment.

(l) Other Defenses Not Affected. The failure of a service provider's
conduct to qualify for limitation of liability under this section shall
not bear adversely upon the consideration of a defense by the service
provider that the service provider's conduct is not infringing under
this title or any other defense.

(m) Protection of Privacy. Nothing in this section shall be construed to
condition the applicability of subsections (a) through (d) on-

(1) a service provider monitoring its service or affirmatively seeking
facts indicating infringing activity, except to the extent consistent
with a standard technical measure complying with the provisions of
subsection (i); or

(2) a service provider gaining access to, removing, or disabling access
to material in cases in which such conduct is prohibited by law.

(n) Construction. Subsections (a), (b), (c), and (d) describe separate
and distinct functions for purposes of applying this section. Whether a
service provider qualifies for the limitation on liability in any one of
those subsections shall be based solely on the criteria in that
subsection, and shall not affect a determination of whether that service
provider qualifies for the limitations on liability under any other such
subsection.

Section 513. Determination of reasonable license fees for individual
proprietors [10]

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 non-publicly traded establishments in which
nondramatic musical works are performed publicly 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
determination of a reasonable license rate or fee by filing an
application in the applicable 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
proprietor'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
jurisdiction 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
magistrate judge named under paragraph (3) shall be reviewed by the
judge of the court with jurisdiction over the consent decree governing
the performing 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
provided 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 determined by the court for, a significant segment of the music
user industry to which the individual proprietor belongs.

------------------
Chapter 5 Endnotes

1 Concerning the liability of the United States Government for
copyright infringement, see 28 U.S.C. 1498. Title 28 of the *United
States Code* is entitled "Judiciary and Judicial Procedure."

2 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 five 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 Liability Limitation Act was enacted. This Act amended
chapter five 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 10*, infra.*

3 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 section
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 inserting "121" in lieu of "118." Pub. L. No. 106-44, 113
Stat. 221, 222. The Satellite Home Viewer 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.

4 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 paragraph (2), by
substituting "$150,000" for "$100,000." Pub. L. No. 106-160, 113 Stat.
1774.

5 The Piracy and Counterfeiting Amendments Act of 1982 amended section
506 by substituting 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 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." Pub. L.
No. 105-147, 111 Stat. 2678, 2680. See also endnote 2 in Part VII of the
Appendix.

6 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.

7 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.

8 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.

9 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.

10 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 2*,
supra.*

------------------------------------------------------------------------

Chapter 6

Manufacturing Requirements and Importation

+ 601. Manufacture, importation, and public distribution of certain
copies
+ 602. Infringing importation of copies or phonorecords
+ 603. Importation prohibitions: Enforcement and disposition of
excluded articles

Section 601. Manufacture, importation, and public distribution of certain
copies [1]

(a) Prior to July 1, 1986, and except as provided by subsection (b), the
importation into or public distribution in the United States of copies
of a work consisting preponderantly of nondramatic literary material
that is in the English 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 preceding 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 distributed in the United States; or

(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
distribute 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.

(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
photoengraving 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 reproduce 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
nondramatic 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

(3) that the infringement was commenced before the effective date of
registration for an authorized edition of the work, the copies of which
have been manufactured in the United States or Canada in accordance with
the provisions 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.

Section 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,
educational, 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 phonorecords is part of an activity
consisting of systematic reproduction or distribution, 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 lawfully 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 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.

Section 603. Importation prohibitions: Enforcement and disposition of
excluded articles [2]

(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
importation 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 exclusion 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.

------------------------------------------------------------------------

Chapter 7 [1]

+ 701. The Copyright Office: General responsibilities and organization
+ 702. Copyright Office regulations
+ 703. Effective date of actions in Copyright Office
+ 704. Retention and disposition of articles deposited in Copyright
Office
+ 705. Copyright Office records: Preparation, maintenance, public
inspection, and searching
+ 706. Copies of Copyright Office records
+ 707. Copyright Office forms and publications
+ 708. Copyright Office fees
+ 709. Delay in delivery caused by disruption of postal or other
services

Section 701. The Copyright Office: General responsibilities and
organization [2]

(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 appointed 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
copyright, other matters arising under this title, and related matters.

(2) Provide information and assistance to Federal departments and
agencies and the Judiciary on national and international issues relating
to copyright, other matters arising under this title, and related
matters.

(3) Participate in meetings of international intergovernmental
organizations and meetings with foreign government officials relating to
copyright, other matters arising under this title, and related matters,
including as a member of United States delegations as authorized by the
appropriate Executive branch authority.

(4) Conduct studies and programs regarding copyright, other matters
arising under this title, and related matters, the administration of the
Copyright Office, or any function vested in the Copyright Office by law,
including educational programs conducted cooperatively with foreign
intellectual property offices and international intergovernmental
organizations.

(5) Perform such other functions as Congress may direct, or as may be
appropriate in furtherance of the functions and duties specifically set
forth in this title.

(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 published 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 effect 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 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 Copyrights 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.

Section 702. Copyright Office regulations [4]

The Register of Copyrights is authorized to establish regulations not
inconsistent with law for the administration of the functions and duties
made the responsibility 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.

Section 703. Effective date of actions in Copyright Office

In any case in which time limits are prescribed under this title for the
performance 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.

Section 704. Retention and disposition of articles deposited 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
categories of works, to make a facsimile reproduction of all or any part
of the material deposited under section 408, and to make such
reproduction a part of the 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
section 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.

Section 705. Copyright Office records: Preparation, maintenance, public
inspection, and searching [5]

(a) The Register of Copyrights shall ensure that records of deposits,
registrations, 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
Copyright 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 particular deposits, registrations, or recorded
documents.

Section 706. Copies of Copyright Office records

(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 specified by section 708.

(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.

Section 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 practicability 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
Office 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.

Section 708. Copyright Office fees [6]

(a) Fees. Fees shall be paid to the Register of Copyrights-

(1) on filing each application under section 408 for registration of a
copyright 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 subsisting 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;

(7) for the issuance, under section 706, of an additional certificate of
registration;

(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 of Copyrights 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 subsection (a) in the following manner: [7]

(1) The Register shall conduct a study of the costs incurred by the
Copyright Office for the registration of claims, the recordation of
documents, and the provision of services. The study shall also consider
the timing of any 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
subject 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
nearest 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
adjusted, 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 occasional 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 expended. The Register
may, in accordance with regulations that he or she shall prescribe,
refund any sum paid by mistake or in excess of the fee required by this
section.

(2) In the case of fees deposited against future services, the Register
of Copyrights shall request the Secretary of the Treasury to invest in
interest-bearing securities in the United States Treasury any portion of
the fees that, as determined by the Register, is not required to meet
current deposit account demands. Funds 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.

Section 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."

4 Copyright Office regulations are published in the *Federal Register
[http://www.loc.gov/copyright/fedreg/] *and in title 37, Chapter II,
of the *Code of Federal Regulations.
[http://www.loc.gov/copyright/title37/] *

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 enactment of this Act" and shall apply to:

(A) claims to original, supplementary, and renewal copyright received
for registration, 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,
[http://www.loc.gov/copyright/title37/] * at 37 C.F.R. Sec. 201.3,
[http://www.loc.gov/copyright/title37/] 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 regulation.

------------------------------------------------------------------------

Chapter 8 [1]

+ 801. Copyright arbitration royalty panels: Establishment and purpose
+ 802. Membership and proceedings of copyright arbitration royalty
panels
+ 803. Institution and conclusion of proceedings

Section 801. Copyright arbitration royalty panels: Establishment and
purpose [2]

(a) Establishment. The Librarian of Congress, upon the recommendation of
the Register of Copyrights, is authorized to appoint and convene
copyright arbitration royalty panels.

(b) Purposes. Subject to the provisions of this chapter, the purposes of
the copyright arbitration royalty panels shall be as follows:

(1) To make determinations concerning the adjustment of reasonable
copyright royalty rates as provided in sections 114, 115, 116, and 119,
and to make determinations as to reasonable terms and rates of royalty
payments as provided in section 118. The rates applicable under sections
114(f)(1)(B), 115, and 116 shall be calculated 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 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 expression and media for their communication;

(D) To minimize any disruptive impact on the structure of the industries
involved and on generally prevailing industry practices.

(2) To make determinations concerning the adjustment of the copyright
royalty rates in 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 constant dollar
level of the royalty fee per subscriber which existed as of the date of
enactment of this Act: *Provided*, That 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 provided further, *That no increase in
the royalty fee shall be permitted based on any reduction in the average
number of distant signal equivalents per subscriber. The copyright
arbitration royalty panels may consider all factors relating to the
maintenance of such level of payments including, as an extenuating
factor, whether the industry has been restrained by subscriber rate
regulating authorities from increasing the rates for the basic service
of providing secondary transmissions.

(B) In the event that the rules and regulations of the Federal
Communications Commission are amended at any time after April 15, 1976,
to permit the carriage by cable systems of additional television
broadcast signals beyond the local service area of the primary
transmitters of such signals, the royalty rates established by section
111(d)(1)(B) may be adjusted to insure 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 reasonableness of rates proposed
following an amendment of Federal Communications Commission rules and
regulations, the copyright arbitration royalty panels shall consider,
among other factors, the economic impact on copyright owners and users:
*Provided*, That no adjustment in royalty rates shall be made under this
subclause 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, network, or noncommercial educational) substituted for
such permitted signal, or (ii) a television broadcast signal first
carried after April 15, 1976, pursuant 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
Federal 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) To distribute royalty fees deposited with the Register of Copyrights
under sections 111, 116, 119(b), and 1003, and to determine, in cases
where controversy exists, the distribution of such fees.

(c) Rulings. The Librarian of Congress, upon the recommendation of the
Register of Copyrights, may, before a copyright arbitration royalty
panel is convened, make any necessary procedural or evidentiary rulings
that would apply to the proceedings conducted by such panel, including-

(1) authorizing the distribution of those royalty fees collected under
sections 111, 119, and 1005 that the Librarian has found are not subject
to controversy; and

(2) accepting or rejecting royalty claims filed under sections 111, 119,
and 1007 on the basis of timeliness or the failure to establish the
basis for a claim.

(d) Support and Reimbursement of Arbitration Panels. The Librarian of
Congress, upon the recommendation of the Register of Copyrights, shall
provide the copyright arbitration royalty panels with the necessary
administrative services related to proceedings under this chapter, and
shall reimburse the arbitrators presiding in distribution proceedings at
such intervals and in such manner as the Librarian shall provide by
regulation. Each such arbitrator is an independent contractor acting on
behalf of the United States, and shall be hired pursuant to a signed
agreement between the Library of Congress and the arbitrator. Payments
to the arbitrators shall be considered reasonable costs incurred by the
Library of Congress and the Copyright Office for purposes of section
802(h)(1).

Section 802. Membership and proceedings of copyright arbitration royalty
panels [3]

(a) Composition of Copyright Arbitration Royalty Panels. A copyright
arbitration royalty panel shall consist of 3 arbitrators selected by the
Librarian of Congress pursuant to subsection (b).

(b) Selection of Arbitration Panel. Not later than 10 days after
publication of a notice in the Federal Register initiating an
arbitration proceeding under section 803, and in accordance with
procedures specified by the Register of Copyrights, the Librarian of
Congress shall, upon the recommendation of the Register of Copyrights,
select 2 arbitrators from lists provided by professional arbitration
associations. Qualifications of the arbitrators shall include experience
in conducting arbitration proceedings and facilitating the resolution
and settlement of disputes, and any qualifications which the Librarian
of Congress, upon the recommendation of the Register of Copyrights,
shall adopt by regulation. The 2 arbitrators so selected shall, within
10 days after their selection, choose a third arbitrator from the same
lists, who shall serve as the chairperson of the arbitrators. If such 2
arbitrators fail to agree upon the selection of a third arbitrator, the
Librarian of Congress shall promptly select the third arbitrator. The
Librarian of Congress, upon the recommendation of the Register of
Copyrights, shall adopt regulations regarding standards of conduct which
shall govern arbitrators and the proceedings under this chapter. [4]

(c) Arbitration Proceedings. Copyright arbitration royalty panels shall
conduct arbitration proceedings, subject to subchapter II of chapter 5
of title 5, for the purpose of making their determinations in carrying
out the purposes set forth in section 801. The arbitration panels shall
act on the basis of a fully documented written record, prior decisions
of the Copyright Royalty Tribunal, prior copyright arbitration panel
determinations, and rulings by the Librarian of Congress under section
801(c). Any copyright owner who claims to be entitled to royalties under
section 111, 112, 114, 116, or 119, any transmitting organization
entitled to a statutory license under section 112(f), any person
entitled to a statutory license under section 114(d), any person
entitled to a compulsory license under section 115, or any interested
copyright party who claims to be entitled to royalties under section
1006, may submit relevant information and proposals to the arbitration
panels in proceedings applicable to such copyright owner or interested
copyright party, and any other person participating in arbitration
proceedings may submit such relevant information and proposals to the
arbitration panel conducting the proceedings. In ratemaking proceedings,
the parties to the proceedings shall bear the entire cost thereof in
such manner and proportion as the arbitration panels shall direct. In
distribution proceedings, the parties shall bear the cost in direct
proportion to their share of the distribution.

(d) Procedures. Effective on the date of the enactment of the Copyright
Royalty Tribunal Reform Act of 1993, the Librarian of Congress shall
adopt the rules and regulations set forth in chapter 3 of title 37 of
the Code of Federal Regulations to govern proceedings under this
chapter. Such rules and regulations shall remain in effect unless and
until the Librarian, upon the recommendation of the Register of
Copyrights, adopts supplemental or superseding regulations under
subchapter II of chapter 5 of title 5.

(e) Report to the Librarian of Congress. Not later than 180 days after
publication of the notice in the Federal Register initiating an
arbitration proceeding, the copyright arbitration royalty panel
conducting the proceeding shall report to the Librarian of Congress its
determination concerning the royalty fee or distribution of royalty
fees, as the case may be. Such report shall be accompanied by the
written record, and shall set forth the facts that the arbitration panel
found relevant to its determination.

(f) Action by Librarian of Congress. Within 90 days after receiving the
report of a copyright arbitration royalty panel under subsection (e),
the Librarian of Congress, upon the recommendation of the Register of
Copyrights, shall adopt or reject the determination of the arbitration
panel. The Librarian shall adopt the determination of the arbitration
panel unless the Librarian finds that the determination is arbitrary or
contrary to the applicable provisions of this title. If the Librarian
rejects the determination of the arbitration panel, the Librarian shall,
before the end of an additional 30-day period, and after full
examination of the record created in the arbitration proceeding, issue
an order setting the royalty fee or distribution of fees, as the case
may be. The Librarian shall cause to be published in the Federal
Register the determination of the arbitration panel, and the decision of
the Librarian (including an order issued under the preceding sentence).
The Librarian shall also publicize such determination and decision in
such other manner as the Librarian considers appropriate. The Librarian
shall also make the report of the arbitration panel and the accompanying
record available for public inspection and copying.

(g) Judicial Review. Any decision of the Librarian of Congress under
subsection (f) with respect to a determination of an arbitration panel
may be appealed, by any aggrieved party who would be bound by the
determination, to the United States Court of Appeals for the District of
Columbia Circuit, within 30 days after the publication of the decision
in the Federal Register. If no appeal is brought within such 30-day
period, the decision of the Librarian is 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 the decision. When this title
provides that the royalty rates or terms that were previously in effect
are to expire on a specified date, any adjustment by the Librarian of
those rates or terms shall be effective as of the day following the date
of expiration of the rates or terms that were previously in effect, even
if the Librarian's decision is rendered on a later date. The pendency of
an appeal under this paragraph shall not relieve persons obligated to
make royalty payments under sections 111, 112, 114, 115, 116, 118, 119,
or 1003 who would be affected by the determination on appeal to deposit
the statement of account and royalty fees specified in those sections.
The court shall have jurisdiction to modify or vacate a decision of the
Librarian only if it finds, on the basis of the record before the
Librarian, that the Librarian acted in an arbitrary manner. If the court
modifies the decision of the Librarian, the court shall have
jurisdiction to enter its own determination with respect to the amount
or distribution of royalty fees and costs, to order the repayment of any
excess fees, and to order the payment of any underpaid fees, and the
interest pertaining respectively thereto, in accordance with its final
judgment. The court may further vacate the decision of the arbitration
panel and remand the case to the Librarian for arbitration proceedings
in accordance with subsection (c).

(h) Administrative Matters.

(1) Deduction of costs of library of congress and copyright office from
royalty fees. The Librarian of Congress and the Register of Copyrights
may, to the extent not otherwise provided under this title, deduct from
royalty fees deposited or collected under this title the reasonable
costs incurred by the Library of Congress and the Copyright Office under
this chapter. Such deduction may be made before the fees are distributed
to any copyright claimants. In addition, all funds made available by an
appropriations Act as offsetting collections and available for
deductions under this subsection shall remain available until expended.
In ratemaking proceedings, the reasonable costs of the Librarian of
Congress and the Copyright Office shall be borne by the parties to the
proceedings as directed by the arbitration panels under subsection (c).

(2) Positions required for administration of compulsory licensing.
Section 307 of the Legislative Branch Appropriations Act, 1994, shall
not apply to employee positions in the Library of Congress that are
required to be filled in order to carry out section 111, 112, 114, 115,
116, 118, or 119 or chapter 10.

Section 803. Institution and conclusion of proceedings [5]

(a)(1) With respect to proceedings under section 801(b)(1) concerning
the adjustment of royalty rates as provided in sections 112, 114, 115,
and 116, and with respect to proceedings under subparagraphs (A) and (D)
of section 801(b)(2), during the calendar years specified in the
schedule set forth in paragraphs (2), (3), (4), and (5), any owner or
user of a copyrighted work whose royalty rates are specified by this
title, established by the Copyright Royalty Tribunal before the date of
the enactment of the Copyright Royalty Tribunal Reform Act of 1993, or
established by a copyright arbitration royalty panel after such date of
enactment, may file a petition with the Librarian of Congress declaring
that the petitioner requests an adjustment of the rate. The Librarian of
Congress shall, upon the recommendation of the Register of Copyrights,
make a determination as to whether the petitioner has such a significant
interest in the royalty rate in which an adjustment is requested. If the
Librarian determines that the petitioner has such a significant
interest, the Librarian shall cause notice of this determination, with
the reasons therefor, to be published in the Federal Register, together
with the notice of commencement of proceedings under this chapter.

(2) In proceedings under section 801(b)(2)(A) and (D), a petition
described in paragraph (1) may be filed during 1995 and in each
subsequent fifth calendar year.

(3) In proceedings under section 801(b)(1) concerning the adjustment of
royalty rates as provided in section 115, a petition described in
paragraph (1) may be filed in 1997 and in each subsequent tenth calendar
year or as prescribed in section 115(c)(3)(D).

(4)(A) In proceedings under section 801(b)(1) concerning the adjustment
of royalty rates as provided in section 116, a petition described in
paragraph (1) 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 permission to use a quantity of musical works not substantially
smaller than the quantity of such works performed on coin-operated
phonorecord players during the 1-year period ending March 1, 1989, the
Librarian of Congress shall, upon petition filed under paragraph (1)
within 1 year after such termination or expiration, convene a copyright
arbitration royalty panel. The arbitration panel shall promptly
establish an interim royalty rate or rates for the public performance by
means of a coin-operated phonorecord player of non-dramatic 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 arbitration panel, in accordance with
section 802, to adjust the royalty rates applicable to such works, or
until superseded by a new negotiated license agreement, as provided in
section 116(b).

(5) With respect to proceedings under section 801(b)(1) concerning the
determination of reasonable terms and rates of royalty payments as
provided in section 112 or 114, the Librarian of Congress shall proceed
when and as provided by those sections.

(b) With respect to proceedings under subparagraph (B) or (C) of section
801(b)(2), following 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 by the Copyright
Royalty Tribunal or the Librarian of Congress, may, within twelve
months, file a petition with the Librarian declaring that the petitioner
requests an adjustment of the rate. In this event the Librarian shall
proceed as in subsection (a) of this section. Any change in royalty
rates made by the Copyright Royalty Tribunal or the Librarian of
Congress pursuant to this subsection may be reconsidered in 1980, 1985,
and each fifth calendar year thereafter, in accordance with the
provisions in section 801(b)(2)(B) or (C), as the case may be.

(c) With respect to proceedings under section 801(b)(1), concerning the
determination of reasonable terms and rates of royalty payments as
provided in section 118, the Librarian of Congress shall proceed when
and as provided by that section.

(d) With respect to proceedings under section 801(b)(3) or (4),
concerning the distribution of royalty fees in certain circumstances
under section 111, 116, 119, or 1007, the Librarian of Congress 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.

------------------
Chapter 8 Endnotes

1 The Copyright Royalty Tribunal Reform Act of 1993 amended chapter 8
by substituting a new chapter title heading and by repealing sections
803 and 805 through 810. Pub. L. No. 103-198, 107 Stat. 2304, 2308.

2 In 1986, section 801(b) was amended in paragraph (2)(A) by inserting
"111(d)(1)(B)" in lieu of "111(d)(2)(B)," wherever it appeared. Pub. L.
No. 99-397, 100 Stat. 848. The Satellite Home Viewer Act of 1988 amended
section 801(b)(3) by substituting ", 116 and 119(b)" in lieu of "and
116." Pub. L. No. 100-667, 102 Stat. 3935, 3949, 3958. The Copyright
Royalty Tribunal Reform Act of 1993 amended section 801 by giving it a
new heading, by amending subsection (a) in its entirety, by making
conforming amendments throughout subsection (b), by amending the first
sentence of subsection (c) and by adding subsection (d). Pub. L. No.
103-198, 107 Stat. 2304. In 1997, section 801 was amended by inserting
"119" in the first sentence of subsection (b)(1), by adding paragraphs
(1) and (2) of subsection (c) and by amending subsection (d) in its
entirety. Pub. L. No. 105-80, 111 Stat. 1529, 1533. In 1998, the Digital
Millennium Copyright Act amended the first sentence of section 801(b) by
inserting "114(f)(1)(B)" in lieu of "114." Pub. L. No. 105-304, 112
Stat. 2860, 2902.

3 The Copyright Royalty Tribunal Reform Act of 1993 amended section 802
in its entirety. Pub. L. No. 103-198, 107 Stat. 2304, 2305. In 1997,
section 802(h)(1) was amended in its entirety. Pub. L. No. 105-80, 111
Stat. 1529.

In 1998, the Digital Millennium Copyright Act amended section 802 as
follows: 1) in subsection (c), by inserting in the third sentence "any
transmitting organization entitled to a statutory license under section
112(f)" after "section 111, 112, 114, 116, and 119"; 2) in subsection
(f), by inserting "90" in lieu of "60" in the first sentence and "an
additional 30-day period" in lieu of "that additional 60 day period" in
the third sentence; 3) in subsection (g), by adding the third sentence,
which begins "When this title provides that the royalty rates" and by
inserting "112" after "111"; and 4) by inserting "112" after "111" in
subsection (h)(2). Pub. L. No. 105-304, 112 Stat. 2860, 2902.

4 See title 37, Chapter II, of the *Code of Federal Regulations.*

5 The Copyright Royalty Tribunal Reform Act of 1993 redesignated
section 804 as section 803 and amended the newly designated section 803
in its entirety. Pub. L. No. 103-198, 107 Stat. 2304, 2307. In 1995, the
Digital Performance Right in Sound Recordings Act amended section 803(a)
by adding paragraph (5) and by making conforming amendments throughout
chapter 8. Pub. L. No. 104-39, 109 Stat. 336, 349. In 1998, the Digital
Millennium Copyright Act amended section 803(a) by inserting "112"
before "114" in paragraphs (1) and (5) and by substituting "those
sections" in lieu of "that section" in paragraph (5). Pub. L. No.
105-304, 112 Stat. 2860, 2902.

------------------------------------------------------------------------

Chapter 9 [1]

Protection of Semiconductor Chip Products

+ 901. Definitions
+ 902. Subject matter of protection
+ 903. Ownership, transfer, licensure, and recordation [2]
+ 904. Duration of protection
+ 905. Exclusive rights in mask works
+ 906. Limitation on exclusive rights: reverse engineering; first sale
+ 907. Limitation on exclusive rights: innocent infringement
+ 908. Registration of claims of protection
+ 909. Mask work notice
+ 910. Enforcement of exclusive rights
+ 911. Civil actions
+ 912. Relation to other laws
+ 913. Transitional provisions
+ 914. International transitional provisions

Section 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
predetermined 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 pattern
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
embodiment 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 exploit" a mask work 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
semiconductor 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 employment, 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
respect 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
chapter; and

(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.

Section 902. Subject matter of protection [3]

(a)(1) Subject to the provisions of subsection (b), a mask work fixed in
a semiconductor 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 foreign 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

(2) Whenever the President finds that a foreign nation extends, to mask
works of owners who are nationals or domiciliaries of the United States
protection (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
authorities 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
semiconductor industry, or variations of such designs, combined in a way
that, considered as a whole, is not original.

(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.

Section 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
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. The Register of Copyrights shall, upon receipt of the
document and the fee specified pursuant to section 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
Government 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 exclusive rights in mask works transferred to
the Government under subsection (b).

Section 904. Duration of protection

(a) The protection provided for a mask work under this chapter shall
commence 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.

(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.

Section 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).

Section 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
paragraph (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.

Section 907. Limitation on exclusive rights: innocent infringement

(a) Notwithstanding any other provision of this chapter, an innocent
purchaser of an infringing semiconductor chip product-

(1) shall incur no liability under this chapter with respect to the
importation 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 distributes 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
determined 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
subsection (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 purchaser purchased before having notice of protection with
respect to the mask work embodied in the semiconductor chip product.

Section 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 anywhere in the world.

(b) The Register of Copyrights shall be responsible for all
administrative functions and duties under this chapter. Except for
section 708, the provisions of chapter 7 of this title relating to the
general responsibilities, organization, regulatory authority, actions,
records, 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.

(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. The
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
registration, 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 registration 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 requirements 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 under 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.

Section 909. Mask work notice [4]

(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 notice 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 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 [M in a circle]
(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.

Section 910. Enforcement of exclusive rights [5]

(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 issued 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
protection in a mask work and the required deposit of identifying
material and fee have been received in the Copyright Office in proper
form and registration 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 action 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 deprive 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:

(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.

Section 911. Civil actions [6]

(a) Any court having jurisdiction of a civil action arising under this
chapter may grant temporary restraining orders, preliminary injunctions,
and permanent 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 establishing 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 infringements 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.

(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
destruction 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 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 actual damages and profits under subsection (b),
statutory damages under subsection (c), impounding and disposition of
infringing articles under subsection (e), and costs and attorney's fees
under subsection (f).

Section 912. Relation to other laws [7]

(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.

(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, whether 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.

Section 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 chapter 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 before 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
semiconductor chip product units described in paragraph (2) of this
subsection without first paying or offering to pay the reasonable
royalty specified in such paragraph, 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.

Section 914. International transitional provisions [8]

(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 Secretary'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
misappropriation, 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 Secretary 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
section, registrations of claims of protection in mask works made
pursuant to that order shall remain valid for the period specified in
section 904.

(e) The authority of the Secretary of Commerce under this section shall
commence 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
Copyrights and the Committees on the Judiciary of the Senate and the
House of Representatives 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
Secretary 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 protection accorded under this chapter to mask
works owned by nationals, domiciliaries, 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 consultation with the
Register of Copyrights, shall transmit to the Committees on the
Judiciary of the Senate and the House of Representatives a report
updating 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. 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.

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 technical correction amended section
910(a) by capitalizing the first word of the second sentence. Pub. L.
No. 105-80, 111 Stat. 1529 1535.

6 In 1990, the Copyright Remedy Clarification Act amended section 911
by adding subsection (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 deleting subsection (d) and redesignating subsection (e)
as subsection (d). Pub. L. No. 100-702, 102 Stat. 4642, 4672. The Audio
Home Recording Act of 1992 amended section 912 by inserting "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 subsection (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-Related Aspects of Intellectual Property
Rights (TRIPs)(Annex 1C to the World Trade Organization (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 (34 countries as of February 10, 1999), as of
January 1, 1996. See Part IV of the Appendix.

For a discussion of Congressional findings regarding extending
protection to semiconductor chip products of foreign entities, see Pub.
L. No. 100-159, 101 Stat. 899, and the Semiconductor International
Protection Extension Act of 1991, Pub. L. No. 102-64, 105 Stat. 320.5

------------------------------------------------------------------------

Chapter 10 [1]

Digital Audio Recording Devices and Media

+ Subchapter A--Definitions
+ 1001. Definitions
+ Subchapter B--Copying Controls
+ 1002. Incorporation of copying controls
+ Subchapter C--Royalty Payments
+ 1003. Obligation to make royalty payments
+ 1004. Royalty payments
+ 1005. Deposit of royalty payments and deduction of expenses
+ 1006. Entitlement to royalty payments
+ 1007. Procedures for distributing royalty payments
+ Subchapter D--Prohibition on Certain Infringement Actions, Remedies,
and Arbitration
+ 1008. Prohibition on certain infringement actions
+ 1009. Civil remedies
+ 1010. Arbitration of certain disputes

Subchapter A Definitions

Section 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
recording 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
designed 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 recording 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 recording
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 consumers
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.

(B) A "digital musical recording" does not include a material object-

(i) in which the fixed sounds consist entirely of spoken word
recordings, or

(ii) in which one or more computer programs are fixed, except that a
digital musical recording may contain statements or instructions
constituting 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.

(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
accompanied 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 distributed;

(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
reproduction 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
professionals in the ordinary course of a lawful business, in accordance
with such requirements as the Secretary of Commerce shall establish by
regulation.

(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 musical 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
applicable 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
entities 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

Section 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
information 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 Commerce
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,
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 status 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 otherwise 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

Section 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
recording 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.

(1) Generally. Any importer or manufacturer that distributes any digital
audio recording device or digital audio recording medium that it
manufactured or imported shall file with the Register of Copyrights, in
such form 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
principal 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 regulations 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.

Section 1004. Royalty payments [2]

(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 distribute 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 combination
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
integrated unit and substantially similar devices have been distributed
separately 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
integrated 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.

(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
Librarian of Congress to increase the royalty maximum and, if more than
20 percent of the royalty payments are at the relevant royalty maximum,
the Librarian of Congress 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
distributed 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.

Section 1005. Deposit of royalty payments and deduction of expenses [3]

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 directs. 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 succeeding calendar year.

Section 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-

(1) whose musical work or sound recording has been-

(A) embodied in a digital musical recording or an analog musical
recording lawfully made under this title that has been distributed, and

(B) distributed in the form of digital musical recordings or analog
musical 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 2/3 percent of the royalty payments
shall be allocated to the Sound Recordings Fund. 2 5/8 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
entity) 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 3/8 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
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 distributed 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
Musical 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
payments allocated to the Musical Works Fund.

(ii) Writers shall be entitled to the other 50 percent of the royalty
payments 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 Librarian of Congress shall convene a
copyright arbitration royalty panel which shall, pursuant to the
procedures specified under 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
disseminated to the public in transmissions.

Section 1007. Procedures for distributing royalty payments [5]

(a) Filing of Claims and Negotiations.

(1) Filing of claims. During the first 2 months of each calendar year
after calendar year 1992, every interested copyright party seeking to
receive royalty payments to which such party is entitled under section
1006 shall file with the Librarian of Congress a claim for payments
collected during the preceding year in such form and manner as the
Librarian of Congress 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 after 1992, the Librarian of Congress shall determine whether
there exists a controversy concerning the distribution of royalty
payments under section 1006(c). If the Librarian of Congress determines
that no such controversy exists, the Librarian of Congress 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), after deducting its reasonable administrative costs under this
section.

(c) Resolution of Disputes. If the Librarian of Congress finds the
existence of a controversy, the Librarian shall, pursuant to chapter 8
of this title, convene a copyright arbitration royalty panel to
determine the distribution of royalty payments. During the pendency of
such a proceeding, the Librarian of Congress 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 Congress shall, before authorizing the distribution of such
royalty payments, deduct the reasonable administrative costs incurred by
the Librarian under this section.

Subchapter D - Prohibition on Certain Infringement Actions, Remedies,
and Arbitration

Section 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 recording 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 musical recordings.

Section 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.

(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 resulting 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
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 recover 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
judgment 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 subsection
(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 alleged violator and that the court has reasonable
cause to believe does not comply with, or was involved in a violation
of, section 1002.

(g) Remedial Modification and Destruction of Articles. In an action
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).

Section 1010. Arbitration of certain disputes [6]

(a) Scope of Arbitration. Before the date of first distribution in the
United States of a digital audio recording device or a digital audio
interface device, any party manufacturing, importing, or distributing
such device, and any interested copyright party may mutually agree to
binding arbitration for the purpose of determining 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 Arbitration Proceedings. Parties agreeing to such
arbitration shall file a petition with the Librarian of Congress
requesting the commencement of an arbitration proceeding. The petition
may include the names and qualifications of potential arbitrators.
Within 2 weeks after receiving such a petition, the Librarian of
Congress shall cause notice to be published in the Federal Register of
the initiation of an arbitration proceeding. Such notice shall include
the names and qualifications of 3 arbitrators chosen by the Librarian of
Congress from a list of available arbitrators obtained from the American
Arbitration Association or such similar organization as the Librarian of
Congress shall select, and from potential arbitrators listed in the
parties' petition. The arbitrators selected under this subsection shall
constitute an Arbitration Panel.

(c) Stay of Judicial Proceedings. Any civil action brought under section
1009 against a party to arbitration under this section shall, on
application of one of the parties to the arbitration, be stayed until
completion of the arbitration proceeding.

(d) Arbitration Proceeding. The Arbitration Panel shall conduct an
arbitration proceeding with respect to the matter concerned, in
accordance with such procedures as it may adopt. The Panel shall act on
the basis of a fully documented written record. Any party to the
arbitration may submit relevant information and proposals to the Panel.
The parties to the proceeding shall bear the entire cost thereof in such
manner and proportion as the Panel shall direct.

(e) Report to the Librarian of Congress. Not later than 60 days after
publication of the notice under subsection (b) of the initiation of an
arbitration proceeding, the Arbitration Panel shall report to the
Librarian of Congress its determination concerning whether the device
concerned is subject to section 1002, or the basis on which royalty
payments for the device are to be made under section 1003. Such report
shall be accompanied by the written record, and shall set forth the
facts that the Panel found relevant to its determination.

(f) Action by the Librarian of Congress. Within 60 days after receiving
the report of the Arbitration Panel under subsection (e), the Librarian
of Congress shall adopt or reject the determination of the Panel. The
Librarian of Congress shall adopt the determination of the Panel unless
the Librarian of Congress finds that the determination is clearly
erroneous. If the Librarian of Congress rejects the determination of the
Panel, the Librarian of Congress shall, before the end of that 60-day
period, and after full examination of the record created in the
arbitration proceeding, issue an order setting forth the Librarian's
decision and the reasons therefor. The Librarian of Congress shall cause
to be published in the Federal Register the determination of the Panel
and the decision of the Librarian of Congress under this subsection with
respect to the determination (including any order issued under the
preceding sentence).

(g) Judicial Review. Any decision of the Librarian of Congress under
subsection (f) with respect to a determination of the Arbitration Panel
may be appealed, by a party to the arbitration, to the United States
Court of Appeals for the District of Columbia Circuit, within 30 days
after the publication of the decision in the Federal Register. The
pendency of an appeal under this subsection shall not stay the decision
of the Librarian of Congress. The court shall have jurisdiction to
modify or vacate a decision of the Librarian of Congress only if it
finds, on the basis of the record before the Librarian of Congress, that
the Arbitration Panel or the Librarian of Congress acted in an arbitrary
manner. If the court modifies the decision of the Librarian of Congress,
the court shall have jurisdiction to enter its own decision in
accordance with its final judgment. The court may further vacate the
decision of the Librarian of Congress and remand the case for
arbitration proceedings as provided in this section.

-------------------
Chapter 10 Endnotes

1 The Audio Home Recording Act of 1992 added chapter 10, entitled
"Digital Audio Recording 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 appropriate. Pub. L. No. 103-198, 107 Stat.
2304, 2312.

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 substituting "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.

5 The Copyright Royalty Tribunal Reform Act of 1993 amended section
1007 by substituting "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 reasonable
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.

6 The Copyright Royalty Tribunal Reform Act of 1993 amended section
1010 by substituting "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 royalty rates and all determinations with respect to
the proportionate division of compulsory 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.

------------------------------------------------------------------------

Chapter 11 [1]

Sound Recordings and Music Videos

+ 1101. Unauthorized fixation and trafficking in sound recordings and
music videos

Section 1101. Unauthorized fixation and trafficking in sound recordings and
music videos

(a) Unauthorized Acts. Anyone who, without the consent of the performer
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.

------------------------------------------------------------------------

Chapter 12 [1] Copyright Protection and Management Systems

+ 1201. Circumvention of copyright protection systems
+ 1202. Integrity of copyright management information
+ 1203. Civil remedies
+ 1204. Criminal offenses and penalties
+ 1205. Savings clause

Section 1201. Circumvention of copyright protection systems [2]

(a) Violations Regarding Circumvention of Technological Measures. (1)(A)
No person shall circumvent a technological measure that effectively
controls access to a work protected under this title. The prohibition
contained in the preceding sentence shall take effect at the end of the
2-year period beginning on the date of the enactment of this chapter.

(B) 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
recommendation of the Register of Copyrights, who shall consult with the
Assistant Secretary for Communications and Information of the Department
of Commerce and report and comment on his or her views in making such
recommendation, shall make the determination in a rulemaking proceeding
for purposes of subparagraph (B) of whether persons who are users of a
copyrighted work are, or are likely to be in the succeeding 3-year
period, adversely affected by the prohibition under subparagraph (A) in
their ability to make noninfringing uses under this title of a
particular class of copyrighted works. In conducting such rule-making,
the Librarian shall examine-

(i) the availability for use of copyrighted works;

(ii) the availability for use of works for nonprofit archival,
preservation, and educational purposes;

(iii) the impact that the prohibition on the circumvention of
technological measures applied to copyrighted works has on criticism,
comment, news reporting, teaching, scholarship, or research;

(iv) the effect of circumvention of technological measures on the market
for or value of copyrighted works; and

(v) such other factors as the Librarian considers appropriate.

(D) The Librarian shall publish any class of copyrighted works for which
the Librarian has determined, pursuant to the rulemaking conducted under
subparagraph (C), that noninfringing uses by persons who are users of a
copyrighted work are, or are likely to be, adversely affected, and the
prohibition contained in subparagraph (A) shall not apply to such users
with respect to such class of works for the ensuing 3-year period.

(E) Neither the exception under subparagraph (B) from the applicability
of the prohibition contained in subparagraph (A), nor any determination
made in a rulemaking conducted under subparagraph (C), may be used as a
defense in any action to enforce any provision of this title other than
this paragraph.

(2) No person shall manufacture, import, offer to the public, provide,
or otherwise traffic in any technology, product, service, device,
component, or part thereof, that-

(A) is primarily designed or produced for the purpose of circumventing a
technological measure that effectively controls access to a work
protected under this title;

(B) has only limited commercially significant purpose or use other than
to circumvent a technological measure that effectively controls access
to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that
person with that person's knowledge for use in circumventing a
technological measure that effectively controls access to a work
protected under this title.

(3) As used in this subsection-

(A) to "circumvent a technological measure" means to descramble a
scrambled work, to decrypt an encrypted work, or otherwise to avoid,
bypass, remove, deactivate, or impair a technological measure, without
the authority of the copyright owner; and

(B) a technological measure "effectively controls access to a work" if
the measure, in the ordinary course of its operation, requires the
application of information, or a process or a treatment, with the
authority of the copyright owner, to gain access to the work.

(b) Additional Violations. (1) No person shall manufacture, import,
offer to the public, provide, or otherwise traffic in any technology,
product, service, device, component, or part thereof, that-

(A) is primarily designed or produced for the purpose of circumventing
protection afforded by a technological measure that effectively protects
a right of a copyright owner under this title in a work or a portion
thereof;

(B) has only limited commercially significant purpose or use other than
to circumvent protection afforded by a technological measure that
effectively protects a right of a copyright owner under this title in a
work or a portion thereof; or

(C) is marketed by that person or another acting in concert with that
person with that person's knowledge for use in circumventing protection
afforded by a technological measure that effectively protects a right of
a copyright owner under this title in a work or a portion thereof.

(2) As used in this subsection-

(A) to "circumvent protection afforded by a technological measure" means
avoiding, bypassing, removing, deactivating, or otherwise impairing a
technological measure; and

(B) a technological measure "effectively protects a right of a copyright
owner under this title" if the measure, in the ordinary course of its
operation, prevents, restricts, or otherwise limits the exercise of a
right of a copyright owner under this title.

(c) Other Rights, Etc., Not Affected. (1) Nothing in this section shall
affect rights, remedies, limitations, or defenses to copyright
infringement, including fair use, under this title.

(2) Nothing in this section shall enlarge or diminish vicarious or
contributory liability for copyright infringement in connection with any
technology, product, service, device, component, or part thereof.

(3) Nothing in this section shall require that the design of, or design
and selection of parts and components for, a consumer electronics,
telecommunications, or computing product provide for a response to any
particular technological measure, so long as such part or component, or
the product in which such part or component is integrated, does not
otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).

(4) Nothing in this section shall enlarge or diminish any rights of free
speech or the press for activities using consumer electronics,
telecommunications, or computing products.

(d) Exemption for Nonprofit Libraries, Archives, and Educational
Institutions.

(1) A nonprofit library, archives, or educational institution which
gains access to a commercially exploited copyrighted work solely in
order to make a good faith determination of whether to acquire a copy of
that work for the sole purpose of engaging in conduct permitted under
this title shall not be in violation of subsection (a)(1)(A). A copy of
a work to which access has been gained under this paragraph-

(A) may not be retained longer than necessary to make such good faith
determination; and

(B) may not be used for any other purpose.

(2) The exemption made available under paragraph (1) shall only apply
with respect to a work when an identical copy of that work is not
reasonably available in another form.

(3) A nonprofit library, archives, or educational institution that
willfully for the purpose of commercial advantage or financial gain
violates paragraph (1)-

(A) shall, for the first offense, be subject to the civil remedies under
section 1203; and

(B) shall, for repeated or subsequent offenses, in addition to the civil
remedies under section 1203, forfeit the exemption provided under
paragraph (1).

(4) This subsection may not be used as a defense to a claim under
subsection (a)(2) or (b), nor may this subsection permit a nonprofit
library, archives, or educational institution to manufacture, import,
offer to the public, provide, or otherwise traffic in any technology,
product, service, component, or part thereof, which circumvents a
technological measure.

(5) In order for a library or archives to qualify for the exemption
under this subsection, the collections of that library or archives shall
be-

(A) open to the public; or

(B) available not only to researchers affiliated with the library or
archives or with the institution of which it is a part, but also to
other persons doing research in a specialized field.

(e) Law Enforcement, Intelligence, and Other Government Activities. This
section does not prohibit any lawfully authorized investigative,
protective, information security, or intelligence activity of an
officer, agent, or employee of the United States, a State, or a
political subdivision of a State, or a person acting pursuant to a
contract with the United States, a State, or a political subdivision of
a State. For purposes of this subsection, the term "information
security" means activities carried out in order to identify and address
the vulnerabilities of a government computer, computer system, or
computer network.

(f) Reverse Engineering. (1) Notwithstanding the provisions of
subsection (a)(1)(A), a person who has lawfully obtained the right to
use a copy of a computer program may circumvent a technological measure
that effectively controls access to a particular portion of that program
for the sole purpose of identifying and analyzing those elements of the
program that are necessary to achieve interoperability of an
independently created computer program with other programs, and that
have not previously been readily available to the person engaging in the
circumvention, to the extent any such acts of identification and
analysis do not constitute infringement under this title.

(2) Notwithstanding the provisions of subsections (a)(2) and (b), a
person may develop and employ technological means to circumvent a
technological measure, or to circumvent protection afforded by a
technological measure, in order to enable the identification and
analysis under paragraph (1), or for the purpose of enabling
interoperability of an independently created computer program with other
programs, if such means are necessary to achieve such interoperability,
to the extent that doing so does not constitute infringement under this
title.

(3) The information acquired through the acts permitted under paragraph
(1), and the means permitted under paragraph (2), may be made available
to others if the person referred to in paragraph (1) or (2), as the case
may be, provides such information or means solely for the purpose of
enabling interoperability of an independently created computer program
with other programs, and to the extent that doing so does not constitute
infringement under this title or violate applicable law other than this
section.

(4) For purposes of this subsection, the term "interoperability" means
the ability of computer programs to exchange information, and of such
programs mutually to use the information which has been exchanged.

(g) Encryption Research.

(1) Definitions. For purposes of this subsection-

(A) the term "encryption research" means activities necessary to
identify and analyze flaws and vulnerabilities of encryption
technologies applied to copyrighted works, if these activities are
conducted to advance the state of knowledge in the field of encryption
technology or to assist in the development of encryption products; and

(B) the term "encryption technology" means the scrambling and
descrambling of information using mathematical formulas or algorithms.

(2) Permissible Acts of Encryption Research. Notwithstanding the
provisions of subsection (a)(1)(A), it is not a violation of that
subsection for a person to circumvent a technological measure as applied
to a copy, phonorecord, performance, or display of a published work in
the course of an act of good faith encryption research if-

(A) the person lawfully obtained the encrypted copy, phonorecord,
performance, or display of the published work;

(B) such act is necessary to conduct such encryption research;

(D) such act does not constitute infringement under this title or a
violation of applicable law other than this section, including section
1030 of title 18 and those provisions of title 18 amended by the
Computer Fraud and Abuse Act of 1986.

(3) Factors in Determining Exemption. In determining whether a person
qualifies for the exemption under paragraph (2), the factors to be
considered shall include-

(A) whether the information derived from the encryption research was
disseminated, and if so, whether it was disseminated in a manner
reasonably calculated to advance the state of knowledge or development
of encryption technology, versus whether it was disseminated in a manner
that facilitates infringement under this title or a violation of
applicable law other than this section, including a violation of privacy
or breach of security;

(B) whether the person is engaged in a legitimate course of study, is
employed, or is appropriately trained or experienced, in the field of
encryption technology; and

(C) whether the person provides the copyright owner of the work to which
the technological measure is applied with notice of the findings and
documentation of the research, and the time when such notice is
provided.

(4) Use of Technological Means for Research Activities. Notwithstanding
the provisions of subsection (a)(2), it is not a violation of that
subsection for a person to-

(A) develop and employ technological means to circumvent a technological
measure for the sole purpose of that person performing the acts of good
faith encryption research described in paragraph (2); and

(B) provide the technological means to another person with whom he or
she is working collaboratively for the purpose of conducting the acts of
good faith encryption research described in paragraph (2) or for the
purpose of having that other person verify his or her acts of good faith
encryption research described in paragraph (2).

(5) Report to Congress. Not later than 1 year after the date of the
enactment of this chapter, the 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

The report shall include legislative recommendations, if any.

(h) Exceptions Regarding Minors. In applying subsection (a) to a
component or part, the court may consider the necessity for its intended
and actual incorporation in a technology, product, service, or device,
which-

(1) does not itself violate the provisions of this title; and

(2) has the sole purpose to prevent the access of minors to material on
the Internet.

(i) Protection of Personally Identifying Information.

(1) Circumvention Permitted. Notwithstanding the provisions of
subsection (a)(1)(A), it is not a violation of that subsection for a
person to circumvent a technological measure that effectively controls
access to a work protected under this title, if-

(A) the technological measure, or the work it protects, contains the
capability of collecting or disseminating personally identifying
information reflecting the online activities of a natural person who
seeks to gain access to the work protected;

(B) in the normal course of its operation, the technological measure, or
the work it protects, collects or disseminates personally identifying
information about the person who seeks to gain access to the work
protected, without providing conspicuous notice of such collection or
dissemination to such person, and without providing such person with the
capability to prevent or restrict such collection or dissemination;

(C) the act of circumvention has the sole effect of identifying and
disabling the capability described in subparagraph (A), and has no other
effect on the ability of any person to gain access to any work; and

(D) the act of circumvention is carried out solely for the purpose of
preventing the collection or dissemination of personally identifying
information about a natural person who seeks to gain access to the work
protected, and is not in violation of any other law.

(2) Inapplicability to Certain Technological Measures.

This subsection does not apply to a technological measure, or a work it
protects, that does not collect or disseminate personally identifying
information and that is disclosed to a user as not having or using such
capability.

(j) Security Testing.

(1) Definition. For purposes of this subsection, the term "security
testing" means accessing a computer, computer system, or computer
network, solely for the purpose of good faith testing, investigating, or
correcting, a security flaw or vulnerability, with the authorization of
the owner or operator of such computer, computer system, or computer
network.

(2) Permissible Acts of Security Testing. Notwithstanding the provisions
of subsection (a)(1)(A), it is not a violation of that subsection for a
person to engage in an act of security testing, if such act does not
constitute infringement under this title or a violation of applicable
law other than this section, including section 1030 of title 18 and
those provisions of title 18 amended by the Computer Fraud and Abuse Act
of 1986.

(3) Factors in Determining Exemption. In determining whether a person
qualifies for the exemption under paragraph (2), the factors to be
considered shall include-

(A) whether the information derived from the security testing was used
solely to promote the security of the owner or operator of such
computer, computer system or computer network, or shared directly with
the developer of such computer, computer system, or computer network;
and

(B) whether the information derived from the security testing was used
or maintained in a manner that does not facilitate infringement under
this title or a violation of applicable law other than this section,
including a violation of privacy or breach of security.

(4) Use of Technological Means for Security Testing. Notwithstanding
the provisions of subsection (a)(2), it is not a violation of that
subsection for a person to develop, produce, distribute or employ
technological means for the sole purpose of performing the acts of
security testing described in subsection (2), provided such
technological means does not otherwise violate section (a)(2).

(k) Certain Analog Devices and Certain Technological Measures.

(1) Certain Analog Devices.

(A) Effective 18 months after the date of the enactment of this chapter,
no person shall manufacture, import, offer to the public, provide or
otherwise traffic in any-

(i) VHS format analog video cassette recorder unless such recorder
conforms to the automatic gain control copy control technology;

(ii) 8mm format analog video cassette camcorder unless such camcorder
conforms to the automatic gain control technology;

(iii) Beta format analog video cassette recorder, unless such recorder
conforms to the automatic gain control copy control technology, except
that this requirement shall not apply until there are 1,000 Beta format
analog video cassette recorders sold in the United States in any one
calendar year after the date of the enactment of this chapter;

(iv) 8mm format analog video cassette recorder that is not an analog
video cassette camcorder, unless such recorder conforms to the automatic
gain control copy control technology, except that this requirement shall
not apply until there are 20,000 such recorders sold in the United
States in any one calendar year after the date of the enactment of this
chapter; or

(v) analog video cassette recorder that records using an NTSC format
video input and that is not otherwise covered under clauses (i) through
(iv), unless such device conforms to the automatic gain control copy
control technology.

(B) Effective on the date of the enactment of this chapter, no person
shall manufacture, import, offer to the public, provide or otherwise
traffic in-

(i) any VHS format analog video cassette recorder or any 8mm format
analog video cassette recorder if the design of the model of such
recorder has been modified after such date of enactment so that a model
of recorder that previously conformed to the automatic gain control copy
control technology no longer conforms to such technology; or

(ii) any VHS format analog video cassette recorder, or any 8mm format
analog video cassette recorder that is not an 8mm analog video cassette
camcorder, if the design of the model of such recorder has been modified
after such date of enactment so that a model of recorder that previously
conformed to the four-line colorstripe copy control technology no longer
conforms to such technology.

Manufacturers that have not previously manufactured or sold a VHS format
analog video cassette recorder, or an 8mm format analog cassette
recorder, shall be required to conform to the four-line colorstripe copy
control technology in the initial model of any such recorder
manufactured after the date of the enactment of this chapter, and
thereafter to continue conforming to the four-line colorstripe copy
control technology. For purposes of this subparagraph, an analog video
cassette recorder "conforms to" the four-line colorstripe copy control
technology if it records a signal that, when played back by the playback
function of that recorder in the normal viewing mode, exhibits, on a
reference display device, a display containing distracting visible lines
through portions of the viewable picture.

(2) Certain Encoding Restrictions. No person shall apply the automatic
gain control copy control technology or colorstripe copy control
technology to prevent or limit consumer copying except such copying-

(A) of a single transmission, or specified group of transmissions, of
live events or of audiovisual works for which a member of the public has
exercised choice in selecting the transmissions, including the content
of the transmissions or the time of receipt of such transmissions, or
both, and as to which such member is charged a separate fee for each
such transmission or specified group of transmissions;

(B) from a copy of a transmission of a live event or an audiovisual work
if such transmission is provided by a channel or service where payment
is made by a member of the public for such channel or service in the
form of a subscription fee that entitles the member of the public to
receive all of the programming contained in such channel or service;

(D) from a copy of a transmission described in subparagraph (A) or from
a copy made from a physical medium described in subparagraph (C).

In the event that a transmission meets both the conditions set forth in
subparagraph (A) and those set forth in subparagraph (B), the
transmission shall be treated as a transmission described in
subparagraph (A).

(3) Inapplicability. This subsection shall not-

(A) require any analog video cassette camcorder to conform to the
automatic gain control copy control technology with respect to any video
signal received through a camera lens;

(B) apply to the manufacture, importation, offer for sale, provision of,
or other trafficking in, any professional analog video cassette
recorder; or

(C) apply to the offer for sale or provision of, or other trafficking
in, any previously owned analog video cassette recorder, if such
recorder was legally manufactured and sold when new and not subsequently
modified in violation of paragraph (1)(B).

(4) Definitions. For purposes of this subsection:

(A) An "analog video cassette recorder" means a device that records, or
a device that includes a function that records, on electromagnetic tape
in an analog format the electronic impulses produced by the video and
audio portions of a television program, motion picture, or other form of
audiovisual work.

(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.

(i) detects one or more of the elements of such technology and does not
record the motion picture or transmission protected by such technology;
or

(ii) records a signal that, when played back, exhibits a meaningfully
distorted or degraded display.

(D) The term "professional analog video cassette recorder" means an
analog video cassette recorder that is designed, manufactured, marketed,
and intended for use by a person who regularly employs such a device for
a lawful business or industrial use, including making, performing ,
displaying, distributing, or transmitting copies of motion pictures on a
commercial scale.

(E) The terms "VHS format," "8mm format," "Beta format," "automatic gain
control copy control technology," "colorstripe copy control technology,"
"four-line version of the colorstripe copy control technology," and
"NTSC" have the meanings that are commonly understood in the consumer
electronics and motion picture industries as of the date of the
enactment of this chapter.

(5) Violations. Any violation of paragraph (1) of this subsection shall
be treated as a violation of subsection (b)(1) of this section. Any
violation of paragraph (2) of this subsection shall be deemed an "act of
circumvention" for the purposes of section 1203(c)(3)(A) of this
chapter.

Section 1202. Integrity of copyright management information [3]

(a) False Copyright Management Information. No person shall knowingly
and with the intent to induce, enable, facilitate, or conceal
infringement-

(1) provide copyright management information that is false, or

(2) distribute or import for distribution copyright management
information that is false.

(b) Removal or Alteration of Copyright Management Information. No person
shall, without the authority of the copyright owner or the law-

(1) intentionally remove or alter any copyright management information,

(2) distribute or import for distribution copyright management
information knowing that the copyright management information has been
removed or altered without authority of the copyright owner or the law,
or

(3) distribute, import for distribution, or publicly perform works,
copies of works, or phonorecords, knowing that copyright management
information has been removed or altered without authority of the
copyright owner or the law,

knowing, or, with respect to civil remedies under section 1203, having
reasonable grounds to know, that it will induce, enable, facilitate, or
conceal an infringement of any right under this title.

(c) Definition. As used in this section, the term "copyright management
information" means any of the following information conveyed in
connection with copies or phonorecords of a work or performances or
displays of a work, including in digital form, except that such term
does not include any personally identifying information about a user of
a work or of a copy, phonorecord, performance, or display of a work:

(1) The title and other information identifying the work, including the
information set forth on a notice of copyright.

(2) The name of, and other identifying information about, the author of
a work.

(3) The name of, and other identifying information about, the copyright
owner of the work, including the information set forth in a notice of
copyright.

(4) With the exception of public performances of works by radio and
television broadcast stations, the name of, and other identifying
information about, a performer whose performance is fixed in a work
other than an audiovisual work.

(5) With the exception of public performances of works by radio and
television broadcast stations, in the case of an audiovisual work, the
name of, and other identifying information about, a writer, performer,
or director who is credited in the audiovisual work.

(6) Terms and conditions for use of the work.

(7) Identifying numbers or symbols referring to such information or
links to such information.

(8) Such other information as the Register of Copyrights may prescribe
by regulation, except that the Register of Copyrights may not require
the provision of any information concerning the user of a copyrighted
work.

(d) Law Enforcement, Intelligence, and Other Government Activities. This
section does not prohibit any lawfully authorized investigative,
protective, information security, or intelligence activity of an
officer, agent, or employee of the United States, a State, or a
political subdivision of a State, or a person acting pursuant to a
contract with the United States, a State, or a political subdivision of
a State. For purposes of this subsection, the term "information
security" means activities carried out in order to identify and address
the vulnerabilities of a government computer, computer system, or
computer network.

(e) Limitations on Liability.

(1) Analog Transmissions. In the case of an analog transmission, a
person who is making transmissions in its capacity as a broadcast
station, or as a cable system, or someone who provides programming to
such station or system, shall not be liable for a violation of
subsection (b) if-

(A) avoiding the activity that constitutes such violation is not
technically feasible or would create an undue financial hardship on such
person; and

(B) such person did not intend, by engaging in such activity, to induce,
enable, facilitate, or conceal infringement of a right under this title.

(2) Digital Transmissions.

(A) If a digital transmission standard for the placement of copyright
management information for a category of works is set in a voluntary,
consensus standard-setting process involving a representative cross-
section of broadcast stations or cable systems and copyright owners of a
category of works that are intended for public performance by such
stations or systems, a person identified in paragraph (1) shall not be
liable for a violation of subsection (b) with respect to the particular
copyright management information addressed by such standard if-

(i) the placement of such information by someone other than such person
is not in accordance with such standard; and

(ii) the activity that constitutes such violation is not intended to
induce, enable, facilitate, or conceal infringement of a right under
this title.

(B) Until a digital transmission standard has been set pursuant to
subparagraph (A) with respect to the placement of copyright management
information for a category 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 conflict
with-

(I) an applicable government regulation relating to transmission of
information in a digital signal;

(II) an applicable industry-wide standard relating to the transmission
of information in a digital signal that was adopted by a voluntary
consensus standards body prior to the effective date of this chapter; or

(III) an applicable industry-wide standard relating to the transmission
of information in a digital signal that was adopted in a voluntary,
consensus standards-setting process open to participation by a
representative cross-section of broadcast stations or cable systems and
copyright owners of a category of works that are intended for public
performance by such stations or systems.

(3) Definitions. As used in this subsection-

(A) the term "broadcast station" has the meaning given that term in
section 3 of the Communications Act of 1934 (47 U.S.C. 153); and

(B) the term "cable system" has the meaning given that term in section
602 of the Communications Act of 1934 (47 U.S.C. 522).

Section 1203. Civil remedies [5]

(a) Civil Actions. Any person injured by a violation of section 1201 or
1202 may bring a civil action in an appropriate United States district
court for such violation.

(b) Powers of the Court. In an action brought under subsection (a), the
court-

(1) may grant temporary and permanent injunctions on such terms as it
deems reasonable to prevent or restrain a violation, but in no event
shall impose a prior restraint on free speech or the press protected
under the 1st amendment to the Constitution;

(2) at any time while an action is pending, may order the impounding, on
such terms as it deems reasonable, of any device or product that is in
the custody or control of the alleged violator and that the court has
reasonable cause to believe was involved in a violation;

(3) may award damages under subsection (c);

(4) in its discretion may allow the recovery of costs by or against any
party other than the United States or an officer thereof;

(5) in its discretion may award reasonable attorney's fees to the
prevailing party; and

(6) may, as part of a final judgment or decree finding a violation,
order the remedial modification or the destruction of any device or
product involved in the violation that is in the custody or control of
the violator or has been impounded under paragraph (2).

(1) In General. Except as otherwise provided in this title, a person
committing a violation of section 1201 or 1202 is liable for either-

(A) the actual damages and any additional profits of the violator, as
provided in paragraph (2), or

(B) statutory damages, as provided in paragraph (3).

(2) Actual Damages. The court shall award to the complaining party the
actual damages suffered by the party as a result of the violation, and
any profits of the violator that are attributable to the violation and
are not taken into account in computing the actual damages, if the
complaining party elects such damages at any time before final judgment
is entered.

(3) Statutory Damages. (A) At any time before final judgment is entered,
a complaining party may elect to recover an award of statutory damages
for each violation of section 1201 in the sum of not less than $200 or
more than $2,500 per act of circumvention, device, product, component,
offer, or performance of service, as the court considers just.

(B) At any time before final judgment is entered, a complaining party
may elect to recover an award of statutory damages for each violation of
section 1202 in the sum of not less than $2,500 or more than $25,000.

(4) Repeated Violations. In any case in which the injured party sustains
the burden of proving, and the court finds, that a person has violated
section 1201 or 1202 within three years after a final judgment was
entered against the person for another such violation, the court may
increase the award of damages up to triple the amount that would
otherwise be awarded, as the court considers just.

(5) Innocent Violations.

(A) In General. The court in its discretion may reduce or remit the
total award of damages in any case in which the violator sustains the
burden of proving, and the court finds, that the violator was not aware
and had no reason to believe that its acts constituted a violation.

(B) Nonprofit Library, Archives, Educational Institutions, or Public
Broadcasting Entities.

(i) Definition. In this subparagraph, the term "public broadcasting
entity" has the meaning given such term under section 118(g).

(ii) In general. In the case of a nonprofit library, archives,
educational institution, or public broadcasting entity, the court shall
remit damages in any case in which the library, archives, educational
institution, or public broadcasting entity sustains the burden of
proving, and the court finds, that the library, archives, educational
institution, or public broadcasting entity was not aware and had no
reason to believe that its acts constituted a violation.

Section 1204. Criminal offenses and penalties [5]

(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
under this section unless such proceeding is commenced within five years
after the cause of action arose.

Section 1205. Savings clause

Nothing in this chapter abrogates, diminishes, or weakens the provisions
of, nor provides any defense or element of mitigation in a criminal
prosecution or civil action under, any Federal or State law that
prevents the violation of the privacy of an individual in connection
with the individual's use of the Internet.

-------------------
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.

------------------------------------------------------------------------

Chapter 13 [1]

Protection of Original Designs

+ 1301. Designs protected
+ 1302. Designs not subject to protection
+ 1303. Revisions, adaptations, and rearrangements
+ 1304. Commencement of protection
+ 1305. Term of protection
+ 1306. Design notice
+ 1307. Effect of omission of notice
+ 1308. Exclusive rights
+ 1309. Infringement
+ 1310. Application for registration
+ 1311. Benefit of earlier filing date in foreign country
+ 1312. Oaths and acknowledgments
+ 1313. Examination of application and issue or refusal of
registration
+ 1314. Certification of registration
+ 1315. Publication of announcements and indexes
+ 1316. Fees
+ 1317. Regulations
+ 1318. Copies of records
+ 1319. Correction of errors in certificates
+ 1320. Ownership and transfer
+ 1321. Remedy for infringement
+ 1322. Injunctions
+ 1323. Recovery for infringement
+ 1324. Power of court over registration
+ 1325. Liability for action on registration fraudulently obtained
+ 1326. Penalty for false marking
+ 1327. Penalty for false representation
+ 1328. Enforcement by Treasury and Postal Service
+ 1329. Relation to design patent law
+ 1330. Common law and other rights unaffected
+ 1331. Administrator; Office of the Administrator
+ 1332. No retroactive effect

Section 1301. Designs protected [3]

(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 similar articles which is more than merely trivial
and has not been copied from another source.

(2) A "useful article" is a vessel hull, including a plug or mold, which
in normal use has an intrinsic utilitarian function that is not merely
to portray the appearance of the article or to convey information. An
article which normally is part of a useful article shall be deemed to be
a useful article.

(3) A "vessel" is a craft-

(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.

Section 1302. Designs not subject to protection [3]

Protection under this chapter shall not be available for a design that
is-

(1) not original;

(2) staple or commonplace, such as a standard geometric figure, a
familiar symbol, an emblem, or a motif, or another shape, pattern, or
configuration which has become standard, common, prevalent, or ordinary;

(3) different from a design excluded by paragraph (2) only in
insignificant details or in elements which are variants commonly used in
the relevant trades;

(4) dictated solely by a utilitarian function of the article that
embodies it; or

(5) embodied in a useful article that was made public by the designer or
owner in the United States or a foreign country more than 2 years before
the date of the application for registration under this chapter.

Section 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.

Section 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).

Section 1305. Term of protection

(a) In General. Subject to subsection (b), the protection provided under
this chapter for a design shall continue for a term of 10 years
beginning on the date of the commencement of protection under section
1304.

(b) Expiration. All terms of protection provided in this section shall
run to the end of the calendar year in which they would otherwise
expire.

(c) Termination of Rights. Upon expiration or termination of protection
in a particular design under this chapter, all rights under this chapter
in the design shall terminate, regardless of the number of different
articles in which the design may have been used during the term of its
protection.

Section 1306. Design notice

(a) Contents of Design Notice.

(1) Whenever any design for which protection is sought under this
chapter is made public under section 1310(b), the owner of the design
shall, subject to the provisions of section 1307, mark it or have it
marked legibly with a design notice consisting of

(A) the words "Protected Design", the abbreviation "Prot'd Des.", or the
letter "D" with a circle, or the symbol "*D*";

(B) the year of the date on which protection for the design commenced;
and

(C) the name of the owner, an abbreviation by which the name can be
recognized, or a generally accepted alternative designation of the
owner.

Any distinctive identification of the owner may be used for purposes of
subparagraph (C) if it has been recorded by the Administrator before the
design marked with such identification is registered.

(2) After registration, the registration number may be used instead of
the elements specified in subparagraphs (B) and (C) of paragraph (1).

(b) Location of Notice. The design notice shall be so located and
applied as to give reasonable notice of design protection while the
useful article embodying the design is passing through its normal
channels of commerce.

(c) Subsequent Removal of Notice. When the owner of a design has
complied with the provisions of this section, protection under this
chapter shall not be affected by the removal, destruction, or
obliteration by others of the design notice on an article.

Section 1307. Effect of omission of notice

(a) Actions with Notice. Except as provided in subsection (b), the
omission of the notice prescribed in section 1306 shall not cause loss
of the protection under this chapter or prevent recovery for
infringement under this chapter against any person who, after receiving
written notice of the design protection, begins an undertaking leading
to infringement under this chapter.

(b) Actions without Notice. The omission of the notice prescribed in
section 1306 shall prevent any recovery under section 1323 against a
person who began an undertaking leading to infringement under this
chapter before receiving written notice of the design protection. No
injunction shall be issued under this chapter with respect to such
undertaking unless the owner of the design reimburses that person for
any reasonable expenditure or contractual obligation in connection with
such undertaking that was incurred before receiving written notice of
the design protection, as the court in its discretion directs. The
burden of providing written notice of design protection shall be on the
owner of the design.

Section 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.

Section 1309. Infringement

(a) Acts of Infringement. Except as provided in subsection (b), it shall
be infringement of the exclusive rights in a design protected under this
chapter for any person, without the consent of the owner of the design,
within the United States and during the term of such protection, to-

(1) make, have made, or import, for sale or for use in trade, any
infringing article as defined in subsection (e); or

(2) sell or distribute for sale or for use in trade any such infringing
article.

(b) Acts of Sellers and Distributors. A seller or distributor of an
infringing article who did not make or import the article shall be
deemed to have infringed on a design protected under this chapter only
if that person-

(1) induced or acted in collusion with a manufacturer to make, or an
importer to import such article, except that merely purchasing or giving
an order to purchase such article in the ordinary course of business
shall not of itself constitute such inducement or collusion; or

(2) refused or failed, upon the request of the owner of the design, to
make a prompt and full disclosure of that person's source of such
article, and that person orders or reorders such article after receiving
notice by registered or certified mail of the protection subsisting in
the design.

(c) Acts without Knowledge. It shall not be infringement under this
section to make, have made, import, sell, or distribute, any article
embodying a design which was created without knowledge that a design was
protected under this chapter and was copied from such protected design.

(d) Acts in Ordinary Course of Business. A person who incorporates into
that person's product of manufacture an infringing article acquired from
others in the ordinary course of business, or who, without knowledge of
the protected design embodied in an infringing article, makes or
processes the infringing article for the account of another person in
the ordinary course of business, shall not be deemed to have infringed
the rights in that design under this chapter except under a condition
contained in paragraph (1) or (2) of subsection (b). Accepting an order
or reorder from the source of the infringing article shall be deemed
ordering or reordering within the meaning of subsection (b)(2).

(e) Infringing Article Defined. As used in this section, an "infringing
article" is any article the design of which has been copied from a
design protected under this chapter, without the consent of the owner of
the protected design. An infringing article is not an illustration or
picture of a protected design in an advertisement, book, periodical,
newspaper, photograph, broadcast, motion picture, or similar medium. A
design shall not be deemed to have been copied from a protected design
if it is original and not substantially similar in appearance to a
protected design.

(f) Establishing Originality. The party to any action or proceeding
under this chapter who alleges rights under this chapter in a design
shall have the burden of establishing the design's originality whenever
the opposing party introduces an earlier work which is identical to such
design, or so similar as to make prima facie showing that such design
was copied from such work.

(g) Reproduction for Teaching or Analysis. It is not an infringement of
the exclusive rights of a design owner for a person to reproduce the
design in a useful article or in any other form solely for the purpose
of teaching, analyzing, or evaluating the appearance, concepts, or
techniques embodied in the design, or the function of the useful article
embodying the design.

Section 1310. Application for registration

(a) Time Limit for Application for Registration. Protection under this
chapter shall be lost if application for registration of the design is
not made within 2 years after the date on which the design is first made
public.

(b) When Design is Made Public. A design is made public when an existing
useful article embodying the design is anywhere publicly exhibited,
publicly distributed, or offered for sale or sold to the public by the
owner of the design or with the owner's consent.

(d) Contents of Application. The application for registration shall be
made to the Administrator and shall state-

(1) the name and address of the designer or designers of the design;

(2) the name and address of the owner if different from the designer;

(3) the specific name of the useful article embodying the design;

(4) the date, if any, that the design was first made public, if such
date was earlier than the date of the application;

(5) affirmation that the design has been fixed in a useful article; and

(6) such other information as may be required by the Administrator.

The application for registration may include a description setting forth
the salient features of the design, but the absence of such a
description shall not prevent registration under this chapter.

(e) Sworn Statement. The application for registration shall be
accompanied by a statement under oath by the applicant or the
applicant's duly authorized agent or representative, setting forth, to
the best of the applicant's knowledge and belief-

(1) that the design is original and was created by the designer or
designers named in the application;

(2) that the design has not previously been registered on behalf of the
applicant or the applicant's predecessor in title; and

(3) that the applicant is the person entitled to protection and to
registration under this chapter.

If the design has been made public with the design notice prescribed in
section 1306, the statement shall also describe the exact form and
position of the design notice.

(f) Effect of Errors. (1) Error in any statement or assertion as to the
utility of the useful article named in the application under this
section, the design of which is sought to be registered, shall not
affect the protection secured under this chapter.

(2) Errors in omitting a joint designer or in naming an alleged joint
designer shall not affect the validity of the registration, or the
actual ownership or the protection of the design, unless it is shown
that the error occurred with deceptive intent.

(g) Design Made in Scope of Employment. In a case in which the design
was made within the regular scope of the designer's employment and
individual authorship of the design is difficult or impossible to
ascribe and the application so states, the name and address of the
employer for whom the design was made may be stated instead of that of
the individual designer.

(h) Pictorial Representation of Design. The application for registration
shall be accompanied by two copies of a drawing or other pictorial
representation of the useful article embodying the design, having one or
more views, adequate to show the design, in a form and style suitable
for reproduction, which shall be deemed a part of the application.

(i) Design in More Than One Useful Article. If the distinguishing
elements of a design are in substantially the same form in different
useful articles, the design shall be protected as to all such useful
articles when protected as to one of them, but not more than one
registration shall be required for the design.

(j) Application for More Than One Design. More than one design may be
included in the same application under such conditions as may be
prescribed by the Administrator. For each design included in an
application the fee prescribed for a single design shall be paid.

Section 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.

Section 1312. Oaths and acknowledgments

(a) In General. Oaths and acknowledgments required by this chapter-

(1) may be made-

(A) before any person in the United States authorized by law to
administer oaths; or

(B) when made in a foreign country, before any diplomatic or consular
officer of the United States authorized to administer oaths, or before
any official authorized to administer oaths in the foreign country
concerned, whose authority shall be proved by a certificate of a
diplomatic or consular officer of the United States; and

(2) shall be valid if they comply with the laws of the State or country
where made.

(b) Written Declaration in Lieu of Oath. (1) The Administrator may by
rule prescribe that any document which is to be filed under this chapter
in the Office of the Administrator and which is required by any law,
rule, or other regulation to be under oath, may be subscribed to by a
written declaration in such form as the Administrator may prescribe, and
such declaration shall be in lieu of the oath otherwise required.

(2) Whenever a written declaration under paragraph (1) is used, the
document containing the declaration shall state that willful false
statements are punishable by fine or imprisonment, or both, pursuant to
section 1001 of title 18, and may jeopardize the validity of the
application or document or a registration resulting therefrom.

Section 1313. Examination of application and issue or refusal of
registration [4]

(a) Determination of Registrability of Design; Registration.

Upon the filing of an application for registration in proper form under
section 1310, and upon payment of the fee prescribed under section 1316,
the Administrator shall determine whether or not the application relates
to a design which on its face appears to be subject to protection under
this chapter, and, if so, the Register shall register the design.
Registration under this subsection shall be announced by publication.
The date of registration shall be the date of publication.

(b) Refusal To Register; Reconsideration. If, in the judgment of the
Administrator, the application for registration relates to a design
which on its face is not subject to protection under this chapter, the
Administrator shall send to the applicant a notice of refusal to
register and the grounds for the refusal. Within 3 months after the date
on which the notice of refusal is sent, the applicant may, by written
request, seek reconsideration of the application. After consideration of
such a request, the Administrator shall either register the design or
send to the applicant a notice of final refusal to register.

(c) Application To Cancel Registration. Any person who believes he or
she is or will be damaged by a registration under this chapter may, upon
payment of the prescribed fee, apply to the Administrator at any time to
cancel the registration on the ground that the design is not subject to
protection under this chapter, stating the reasons for the request. Upon
receipt of an application for cancellation, the Administrator shall send
to the owner of the design, as shown in the records of the Office of the
Administrator, a notice of the application, and the owner shall have a
period of 3 months after the date on which such notice is mailed in
which to present arguments to the Administrator for support of the
validity of the registration. The Administrator shall also have the
authority to establish, by regulation, conditions under which the
opposing parties may appear and be heard in support of their arguments.
If, after the periods provided for the presentation of arguments have
expired, the Administrator determines that the applicant for
cancellation has established that the design is not subject to
protection under this chapter, the Administrator shall order the
registration stricken from the record. Cancellation under this
subsection shall be announced by publication, and notice of the
Administrator's final determination with respect to any application for
cancellation shall be sent to the applicant and to the owner of record.
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.

Section 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.

Section 1315. Publication of announcements and indexes

(a) Publications of the Administrator. The Administrator shall publish
lists and indexes of registered designs and cancellations of designs and
may also publish the drawings or other pictorial representations of
registered designs for sale or other distribution.

(b) File of Representatives of Registered Designs. The Administrator
shall establish and maintain a file of the drawings or other pictorial
representations of registered designs. The file shall be available for
use by the public under such conditions as the Administrator may
prescribe.

Section 1316. Fees

The Administrator shall by regulation set reasonable fees for the filing
of applications to register designs under this chapter and for other
services relating to the administration of this chapter, taking into
consideration the cost of providing these services and the benefit of a
public record.

Section 1317. Regulations

The Administrator may establish regulations for the administration of
this chapter.

Section 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.

Section 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.

Section 1320. Ownership and transfer [5]

(a) Property Right in Design. The property right in a design subject to
protection under this chapter shall vest in the designer, the legal
representatives of a deceased designer or of one under legal incapacity,
the employer for whom the designer created the design in the case of a
design made within the regular scope of the designer's employment, or a
person to whom the rights of the designer or of such employer have been
transferred. The person in whom the property right is vested shall be
considered the owner of the design.

(b) Transfer of Property Right. The property right in a registered
design, or a design for which an application for registration has been
or may be filed, may be assigned, granted, conveyed, or mortgaged by an
instrument in writing, signed by the owner, or may be bequeathed by
will.

(c) Oath or Acknowledgment of Transfer. An oath or acknowledgment under
section 1312 shall be prima facie evidence of the execution of an
assignment, grant, conveyance, or mortgage under subsection (b).

(d) Recordation of Transfer. An assignment, grant, conveyance, or
mortgage under subsection (b) shall be void as against any subsequent
purchaser or mortgagee for a valuable consideration, unless it is
recorded in the Office of the Administrator within 3 months after its
date of execution or before the date of such subsequent purchase or
mortgage.

Section 1321. Remedy for infringement

(a) In General. The owner of a design is entitled, after issuance of a
certificate of registration of the design under this chapter, to
institute an action for any infringement of the design.

(b) Review of Refusal To Register. (1) Subject to paragraph (2), the
owner of a design may seek judicial review of a final refusal of the
Administrator to register the design under this chapter by bringing a
civil action, and may in the same action, if the court adjudges the
design subject to protection under this chapter, enforce the rights in
that design under this chapter.

(2) The owner of a design may seek judicial review under this section
if-

(A) the owner has previously duly filed and prosecuted to final refusal
an application in proper form for registration of the design;

(B) the owner causes a copy of the complaint in the action to be
delivered to the Administrator within 10 days after the commencement of
the action; and

(C) the defendant has committed acts in respect to the design which
would constitute infringement with respect to a design protected under
this chapter.

(c) Administrator as Party to Action. The Administrator may, at the
Administrator's option, become a party to the action with respect to the
issue of registrability of the design claim by entering an appearance
within 60 days after being served with the complaint, but the failure of
the Administrator to become a party shall not deprive the court of
jurisdiction to determine that issue.

(d) Use of Arbitration To Resolve Dispute. The parties to an
infringement dispute under this chapter, within such time as may be
specified by the Administrator by regulation, may determine the dispute,
or any aspect of the dispute, by arbitration. Arbitration shall be
governed by title 9. The parties shall give notice of any arbitration
award to the Administrator, and such award shall, as between the parties
to the arbitration, be dispositive of the issues to which it relates.
The arbitration award shall be unenforceable until such notice is given.
Nothing in this subsection shall preclude the Administrator from
determining whether a design is subject to registration in a
cancellation proceeding under section 1313(c).

Section 1322. Injunctions

(a) In General. A court having jurisdiction over actions under this
chapter may grant injunctions in accordance with the principles of
equity to prevent infringement of a design under this chapter,
including, in its discretion, prompt relief by temporary restraining
orders and preliminary injunctions.

(b) Damages for Injunctive Relief Wrongfully Obtained. A seller or
distributor who suffers damage by reason of injunctive relief wrongfully
obtained under this section has a cause of action against the applicant
for such injunctive relief and may recover such relief as may be
appropriate, including damages for lost profits, cost of materials, loss
of good will, and punitive damages in instances where the injunctive
relief was sought in bad faith, and, unless the court finds extenuating
circumstances, reasonable attorney's fees.

Section 1323. Recovery for infringement

(a) Damages. Upon a finding for the claimant in an action for
infringement under this chapter, the court shall award the claimant
damages adequate to compensate for the infringement. In addition, the
court may increase the damages to such amount, not exceeding $50,000 or
$1 per copy, whichever is greater, as the court determines to be just.
The damages awarded shall constitute compensation and not a penalty. The
court may receive expert testimony as an aid to the determination of
damages.

(b) Infringer's Profits. As an alternative to the remedies provided in
subsection (a), the court may award the claimant the infringer's profits
resulting from the sale of the copies if the court finds that the
infringer's sales are reasonably related to the use of the claimant's
design. In such a case, the claimant shall be required to prove only the
amount of the infringer's sales and the infringer shall be required to
prove its expenses against such sales.

(c) Statute of Limitations. No recovery under subsection (a) or (b)
shall be had for any infringement committed more than 3 years before the
date on which the complaint is filed.

(d) Attorney's Fees. In an action for infringement under this chapter,
the court may award reasonable attorney's fees to the prevailing party.

(e) Disposition of Infringing and Other Articles. The court may order
that all infringing articles, and any plates, molds, patterns, models,
or other means specifically adapted for making the articles, be
delivered up for destruction or other disposition as the court may
direct.

Section 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.

Section 1325. Liability for action on registration fraudulently obtained

Any person who brings an action for infringement knowing that
registration of the design was obtained by a false or fraudulent
representation materially affecting the rights under this chapter, shall
be liable in the sum of $10,000, or such part of that amount as the
court may determine. That amount shall be to compensate the defendant
and shall be charged against the plaintiff and paid to the defendant, in
addition to such costs and attorney's fees of the defendant as may be
assessed by the court.

Section 1326. Penalty for false marking

(a) In General. Whoever, for the purpose of deceiving the public, marks
upon, applies to, or uses in advertising in connection with an article
made, used, distributed, or sold, a design which is not protected under
this chapter, a design notice specified in section 1306, or any other
words or symbols importing that the design is protected under this
chapter, knowing that the design is not so protected, shall pay a civil
fine of not more than $500 for each such offense.

(b) Suit by Private Persons. Any person may sue for the penalty
established by subsection (a), in which event one-half of the penalty
shall be awarded to the person suing and the remainder shall be awarded
to the United States.

Section 1327. Penalty for false representation

Whoever knowingly makes a false representation materially affecting the
rights obtainable under this chapter for the purpose of obtaining
registration of a design under this chapter shall pay a penalty of not
less than $500 and not more than $1,000, and any rights or privileges
that individual may have in the design under this chapter shall be
forfeited.

Section 1328. Enforcement by Treasury and Postal Service

(a) Regulations. The Secretary of the Treasury and the United States
Postal Service shall separately or jointly issue regulations for the
enforcement of the rights set forth in section 1308 with respect to
importation. Such regulations may require, as a condition for the
exclusion of articles from the United States, that the person seeking
exclusion take any one or more of the following actions:

(1) Obtain a court order enjoining, or an order of the International
Trade Commission under section 337 of the Tariff Act of 1930 excluding,
importation of the articles.

(2) Furnish proof that the design involved is protected under this
chapter and that the importation of the articles would infringe the
rights in the design under this chapter.

(3) Post a surety bond for any injury that may result if the detention
or exclusion of the articles proves to be unjustified.

(b) Seizure and Forfeiture. Articles imported in violation of the rights
set forth in section 1308 are subject to seizure and forfeiture in the
same manner as property imported in violation of the customs laws. Any
such forfeited articles shall be destroyed as directed by the Secretary
of the Treasury or the court, as the case may be, except that the
articles may be returned to the country of export whenever it is shown
to the satisfaction of the Secretary of the Treasury that the importer
had no reasonable grounds for believing that his or her acts constituted
a violation of the law.

Section 1329. Relation to design patent law

The issuance of a design patent under title 35, United States Code, for
an original design for an article of manufacture shall terminate any
protection of the original design under this chapter.

Section 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.

Section 1331. Administrator; Office of the Administrator

In this chapter, the "Administrator" is the Register of Copyrights, and
the "Office of the Administrator" and the "Office" refer to the
Copyright Office of the Library of Congress.

Section 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.

-------------------
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.

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 adding 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.

------------------------------------------------------------------------

Appendix I. Transitional and Supplementary Provisions of the
Copyright Act of 1976 [1]

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.

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 statutes of the United States, shall continue in
force until terminated, suspended, or revised by the President.

Sec. 105. (a)(1) Section 505 of title 44 is amended to read as follows:

"Sec. 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 part VII of the Appendix, *infra*, as currently
amended.]

(c) In section 1498(b) of title 28, the phrase "section 101(b) of title
17" is amended 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 290(e) of title 15 is amended by deleting
the phrase "section 8" and inserting in lieu thereof the phrase "section
105". [2]

(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 under 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 compulsory license under the terms
of section 115 of title 17 as amended by the first section 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
subsisting 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 amended 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
deposit, 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 accordance 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 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 part VII of the
Appendix, *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
"Librarian") 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
phonorecords 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 unpublished 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

(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
tangible form, for the purposes of preservation or security or for
distribution under the conditions of clause (3) of this subsection; and

(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
subsection-

(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
authority 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 section, 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 I Endnotes

1 Part I of the 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 correct reference is to "290e," not "290(e)."

------------------------------------------------------------------------

Appendix II. Berne Convention Implementation Act of 1988 [1]

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 revisions 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
provisions of the Berne Convention itself.

(b) Certain Rights Not Affected. The provisions of the Berne Convention,
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-

(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
copyright 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 II Endnotes

1 Part II of the 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.

------------------------------------------------------------------------

Appendix III. Uruguay Round Agreements Act [1]

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
Committee of the United Nations Conference on Trade and Employment, as
subsequently rectified, amended, or modified by the terms of legal
instruments 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 Agreements" 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.

(9) WTO agreement. The term "WTO Agreement" means the Agreement
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 territory (within the
meaning of Article XII of the WTO Agreement), with respect to which the
United States applies the WTO Agreement.

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
agreements that was submitted to the Congress on September 27, 1994.

(b) Entry Into Force. At such time as the President determines that a
sufficient 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 under, 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.

(7) The Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994.

(8) The Agreement on Implementation of Article VII of the General
Agreement 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
established 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 conformity of State laws and practices with the Uruguay Round
Agreements.

(B) Federal-State Consultation Process. The Trade Representative shall
establish within the Office of the United States Trade Representative a
Federal-State consultation process for addressing issues relating to the
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
continuing 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.

(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 Agreements, the Trade Representative shall notify the
Governor of the State or the Governor's designee, and the chief legal
officer of the jurisdiction 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
consultations, 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
particular, 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
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
effort 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,
appropriate 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
consultations 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
convened under the Dispute Settlement Understanding regarding the State
law, or the law of any political subdivision thereof, shall not be
considered 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
inconsistent 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

(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
judgment becomes final and all timely appeals, including discretionary
review, of such judgment are exhausted.

(C) Reports to Congressional Committees. At least 30 days before 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
matter with the State concerned by other means; and

(iii) if the State law was the subject of consultations under the
Dispute 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.

(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 instrumentality
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,
including 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-

(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 administrative
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 application.

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 III Endnote

1 Part III of the 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.*

------------------------------------------------------------------------

Appendix IV. 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 [2]

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: importing, selling, or otherwise
distributing for commercial purposes a protected layout-design, an
integrated circuit in which a protected layout-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 Holder

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 integrated 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 circuit, 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 non-voluntary
licensing of a layout-design or of its use by or for the government
without the authorization of the right holder.

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 IV 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 The term "right holder" in this section shall be understood as having
the same meaning as the term "holder of the right" in the Treaty on
Intellectual Property in Respect of Integrated Circuits, done at
Washington, D.C., on May 26, 1989.

------------------------------------------------------------------------

Appendix V. Additional Provisions of the Digital Millennium
Copyright Act [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
Phonograms Treaties Implementation Act of 1998".

* * * * * * *

SEC. 104. EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON
ELECTRONIC COMMERCE AND TECHNOLOGICAL DEVELOPMENT.

(a) Evaluation by the Register of Copyrights and the Assistant Secretary
for Communications and Information. The Register of Copyrights and the
Assistant Secretary for Communications and Information of the Department
of Commerce shall jointly evaluate-

(1) the effects of the amendments made by this title and the development
of electronic commerce and associated technology on the operation of
sections 109 and 117 of title 17, United States Code; and

(2) the relationship between existing and emergent technology and the
operation of sections 109 and 117 of title 17, United States Code.

(b) Report to Congress. The Register of Copyrights and the Assistant
Secretary for Communications and Information of the Department of
Commerce shall, not later than 24 months after the date of the enactment
of this Act, submit to the Congress a joint report on the evaluation
conducted under subsection (a), including any legislative
recommendations the Register and the Assistant Secretary may have.

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
Copyright Treaty with respect to the United States:

(A) Paragraph (5) of the definition of "international agreement"
contained in section 101 of title 17, United States Code, as amended by
section 102(a)(4) of this Act.

(B) The amendment made by section 102(a)(6) of this Act.

(D) Subparagraph (C) of section 104A(h)(3) of title 17, United States
Code, as amended by section 102(c)(2) of this Act.

(2) The following shall take effect upon the entry into force of the
WIPO Performances and Phonograms Treaty with respect to the United
States:

(A) Paragraph (6) of the definition of "international agreement"
contained in section 101 of title 17, United States Code, as amended by
section 102(a)(4) of this Act.

(B) The amendment made by section 102(a)(7) of this Act.

(D) Subparagraph (D) of section 104A(h)(1) of title 17, United States
Code, as amended by section 102(c)(1) of this Act.

(E) Subparagraph (D) of section 104A(h)(3) of title 17, United States
Code, as amended by section 102(c)(2) of this Act.

(F) The amendments made by section 102(c)(3) of this Act.

* * * * * * *

Title II - Online Copyright Infringement Liability Limitation

SEC. 201. SHORT TITLE.

This title may be cited as the "Online Copyright Infringement Liability
Limitation Act".

* * * * * * *

SEC. 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. 403. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION.

(a) Recommendations by Register of Copyrights. Not later than 6 months
after the date of the enactment of this Act, the Register of Copyrights,
after consultation with representatives of copyright owners, nonprofit
educational institutions, and nonprofit libraries and archives, shall
submit to the Congress recommendations on how to promote distance
education through digital technologies, including interactive digital
networks, while maintaining an appropriate balance between the rights of
copyright owners and the needs of users of copyrighted works. Such
recommendations shall include any legislation the Register of Copyrights
considers appropriate to achieve the objective described in the
preceding sentence.

(b) Factors. In formulating recommendations under subsection (a), the
Register of Copyrights shall consider-

(1) the need for an exemption from exclusive rights of copyright owners
for distance education through digital networks;

(2) the categories of works to be included under any distance education
exemption;

(3) the extent of appropriate quantitative limitations on the portions
of works that may be used under any distance education exemption;

(4) the parties who should be entitled to the benefits of any distance
education exemption;

(5) the parties who should be designated as eligible recipients of
distance education materials under any distance education exemption;

(6) whether and what types of technological measures can or should be
employed to safeguard against unauthorized access to, and use or
retention of, copyrighted materials as a condition of eligibility for
any distance education exemption, including, in light of developing
technological capabilities, the exemption set out in section 110(2) of
title 17, United States Code;

(7) the extent to which the availability of licenses for the use of
copyrighted works in distance education through interactive digital
networks should be considered in assessing eligibility for any distance
education exemption; and

(8) such other issues relating to distance education through interactive
digital networks that the Register considers appropriate.

* * * * * * *

SEC. 405. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS;

EPHEMERAL RECORDINGS.

(a) Scope of Exclusive Rights in Sound Recordings.

* * * * * * *

(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
otherwise impair the rights that are preserved by section 114 of title
17, United States Code, including the rights preserved by subsections
(c), (d)(4), and (i) of such section.

* * * * * * *

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
adding at the end the following new chapter:

"CHAPTER 180-ASSUMPTION OF
CERTAIN CONTRACTUAL OBLIGATIONS

"Sec. 4001. Assumption of contractual obligations related to transfers
of rights in motion pictures.

"Sec. 4001. Assumption of contractual obligations related to transfers
of rights in motion pictures

"(a) Assumption of Obligations. (1) In the case of a transfer of
copyright ownership under United States law in a motion picture (as the
terms 'transfer of copyright ownership' and 'motion picture' are defined
in section 101 of title 17) that is produced subject to 1 or more
collective bargaining agreements negotiated under the laws of the United
States, if the transfer is executed on or after the effective date of
this chapter and is not limited to public performance rights, the
transfer instrument shall be deemed to incorporate the assumption
agreements applicable to the copyright ownership being transferred that
are required by the applicable collective bargaining agreement, and the
transferee shall be subject to the obligations under each such
assumption agreement to make residual payments and provide related
notices, accruing after the effective date of the transfer and
applicable to the exploitation of the rights transferred, and any
remedies under each such assumption agreement for breach of those
obligations, as those obligations and remedies are set forth in the
applicable collective bargaining agreement, if-

"(A) the transferee knows or has reason to know at the time of the
transfer that such collective bargaining agreement was or will be
applicable to the motion picture; or

"(B) in the event of a court order confirming an arbitration award
against the transferor under the collective bargaining agreement, the
transferor does not have the financial ability to satisfy the award
within 90 days after the order is issued.

"(2) For purposes of paragraph (1)(A), 'knows or has reason to know'
means any of the following:

"(A) Actual knowledge that the collective bargaining agreement was or
will be applicable to the motion picture.

"(B)(i) Constructive knowledge that the collective bargaining agreement
was or will be applicable to the motion picture, arising from
recordation of a document pertaining to copyright in the motion picture
under section 205 of title 17 or from publication, at a site available
to the public on-line that is operated by the relevant union, of
information that identifies the motion picture as subject to a
collective bargaining agreement with that union, if the site permits
commercially reasonable verification of the date on which the
information was available for access.

"(ii) Clause (i) applies only if the transfer referred to in subsection
(a)(1) occurs-

"(I) after the motion picture is completed, or

"(II) before the motion picture is completed and-

"(aa) within 18 months before the filing of an application for
copyright registration for the motion picture under section 408 of title
17, or

"(bb) if no such application is filed, within 18 months before the
first publication of the motion picture in the United States.

"(C) Awareness of other facts and circumstances pertaining to a
particular transfer from which it is apparent that the collective
bargaining agreement was or will be applicable to the motion picture.

"(b) Scope of Exclusion of Transfers of Public Performance Rights. For
purposes of this section, the exclusion under subsection (a) of
transfers of copyright ownership in a motion picture that are limited to
public performance rights includes transfers to a terrestrial broadcast
station, cable system, or programmer to the extent that the station,
system, or programmer is functioning as an exhibitor of the motion
picture, either by exhibiting the motion picture on its own network,
system, service, or station, or by initiating the transmission of an
exhibition that is carried on another network, system, service, or
station. When a terrestrial broadcast station, cable system, or
programmer, or other transferee, is also functioning otherwise as a
distributor or as a producer of the motion picture, the public
performance exclusion does not affect any obligations imposed on the
transferee to the extent that it is engaging in such functions.

"(c) Exclusion for Grants of Security Interests. Subsection (a) shall
not apply to-

"(1) a transfer of copyright ownership consisting solely of a mortgage,
hypothecation, or other security interest; or

"(2) a subsequent transfer of the copyright ownership secured by the
security interest described in paragraph (1) by or under the authority
of the secured party, including a transfer through the exercise of the
secured party's rights or remedies as a secured party, or by a
subsequent transferee.

"The exclusion under this subsection shall not affect any rights or
remedies under law or contract.

"(d) Deferral Pending Resolution of Bona Fide Dispute.

"A transferee on which obligations are imposed under subsection (a) by
virtue of paragraph (1) of that subsection may elect to defer
performance of such obligations that are subject to a bona fide dispute
between a union and a prior transferor until that dispute is resolved,
except that such deferral shall not stay accrual of any union claims due
under an applicable collective bargaining agreement.

"(e) Scope of Obligations Determined by Private Agreement. Nothing in
this section shall expand or diminish the rights, obligations, or
remedies of any person under the collective bargaining agreements or
assumption agreements referred to in this section.

"(f) Failure to Notify. If the transferor under subsection (a) fails to
notify the transferee under subsection (a) of applicable collective
bargaining obligations before the execution of the transfer instrument,
and subsection (a) is made applicable to the transferee solely by virtue
of subsection (a)(1)(B), the transferor shall be liable to the
transferee for any damages suffered by the transferee as a result of the
failure to notify.

"(g) Determination of Disputes and Claims. Any dispute concerning the
application of subsections (a) through (f) shall be determined by an
action in United States district court, and the court in its discretion
may allow the recovery of full costs by or against any party and may
also award a reasonable attorney's fee to the prevailing party as part
of the costs.

"(h) Study. The Comptroller General, in consultation with the Register
of Copyrights, shall conduct a study of the conditions in the motion
picture industry that gave rise to this section, and the impact of this
section on the 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."

* * * * * * *

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. 503. CONFORMING AMENDMENTS.

* * * * * * *

(b) Jurisdictions of District Courts Over Design Actions. (1) Section
1338(c) of title 28, United States Code, is amended by inserting ", and
to exclusive rights in designs under chapter 13 of title 17," after
"title 17".

(2)(A) The section heading for section 1338 of title 28, United States
Code, is amended by inserting "designs," after "mask works,".

(B) The item relating to section 1338 in the table of sections at the
beginning of chapter 85 of title 28, United States Code, is amended by
inserting "designs," after "mask works,".

(c) Place for Bringing Design Actions. (1) Section 1400(a) of title 28,
United States Code, is amended by inserting "or designs" after "mask
works".

(2) The section heading for section 1400 of title 28, United States Code
is amended to read as follows:

"Patents and copyrights, mask works, and designs".

(3) The item relating to section 1400 in the table of sections at the
beginning of chapter 87 of title 28, United States Code, is amended to
read as follows:

"1400. Patents and copyrights, mask works, and designs.".

(d) Actions Against the United States. Section 1498(e) of title 28,
United States Code, is amended by inserting ", and to exclusive rights
in designs under chapter 13 of title 17," after "title 17".

SEC. 504. JOINT STUDY OF THE EFFECT OF THIS TITLE [2]

(a) In General. Not later than November 1, 2003, the Register of
Copyrights and the Commissioner of Patents and Trademarks shall submit
to the Committees on the Judiciary of the Senate and the House of
Representatives a joint report evaluating the effect of the amendments
made by this title.

(b) Elements for Consideration. In carrying out subsection (a), the
Register of Copyrights and the Commissioner of Patents and Trademarks
shall consider-

(1) the extent to which the amendments made by this title has been
effective in suppressing infringement of the design of vessel hulls;

(2) the extent to which the registration provided for in chapter 13 of
title 17, United States Code, as added by this title, has been utilized;

(3) the extent to which the creation of new designs of vessel hulls have
been encouraged by the amendments made by this title;

(4) the effect, if any, of the amendments made by this title on the
price of vessels with hulls protected under such amendments; and

(5) such other considerations as the Register and the Commissioner may
deem relevant to accomplish the purposes of the evaluation conducted
under subsection (a).

SEC. 505. EFFECTIVE DATE. [3]

The amendments made by sections 502 and 503 shall take effect on the
date of the enactment of this Act.

-------------------
Appendix V Endnotes

1 Part V of the Appendix contains provisions from the Digital
Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, that do
not amend title 17 of the *United States Code.*

2 The Satellite Home Viewer Improvement Act of 1999 amended section
504(a) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at
1501A-593.

3 The Intellectual Property and Communications Omnibus Reform Act of
1999 amended 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-593.

------------------------------------------------------------------------

Appendix VI. Definition of "Berne Convention Work"

The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 deleted the definition of "Berne Convention
work" from section 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
Convention, 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
domiciled, 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
building 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 considered to have been simultaneously published in two
or more nations if its dates of publication are within 30 days of one
another.

-------------------
Appendix VI Endnote

1 For a discussion of the legislative history of the definition of
"Berne Convention work," see endnote 2, chapter 1, *supra.*

------------------------------------------------------------------------

Appendix VII. Selected Provisions of the U.S. Code Relating to Copyright

Title 18 - Crimes and Criminal Procedure

Part I - Crimes

Chapter 113 - Stolen Property

* * * * * * *

Sec. 2318. Trafficking in counterfeit labels for phonorecords, copies
of computer programs or computer program documentation or packaging, and
copies of motion pictures or other audio visual works, and trafficking
in counterfeit computer program documentation or packaging. [1]

(a) Whoever, in any of the circumstances described in subsection (c) of
this section, knowingly traffics in a counterfeit label affixed or
designed to be affixed to a phonorecord, or a copy of a computer program
or documentation or packaging for a computer program, or a copy of a
motion picture or other audiovisual work, and whoever, in any of the
circumstances described in subsection (c) of this section, knowingly
traffics in counterfeit documentation or packaging for a computer
program, shall be fined under this title or imprisoned for not more than
five 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;
and

(3) the terms "copy", "phonorecord", "motion picture", "computer
program", and "audiovisual work" have, respectively, the meanings given
those terms in section 101 (relating to definitions) of title 17.

(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
intended to be used in the commission of the offense;

(3) the counterfeit label is affixed to or encloses, or is designed to
be affixed to or enclose, a copy of a copyrighted computer program or
copyrighted documentation or packaging for a computer program, a
copyrighted motion picture or other audiovisual work, or a phonorecord
of a copyrighted sound recording; or

(4) the counterfeited documentation or packaging for a computer program
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 and all articles to which
counterfeit labels have been affixed or which were intended to have had
such labels affixed.

(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 violations of subsection (a).

Sec. 2319. Criminal infringement of a copyright [2]

(a) Whoever violates section 506(a) (relating to criminal offenses) of
title 17 shall be punished as provided in subsections (b) and (c) of
this section 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) 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 distribution, 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

(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.

(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 distribution 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 distribution 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) (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,
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
involved in the offense;

(B) holders of intellectual property rights in such works; and

(e) As used in this section-

(1) the terms "phonorecord" and "copies" have, respectively, the
meanings set forth in section 101 (relating to definitions) of title 17;
and

(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 120, of title 17.

Sec. 2319A. Unauthorized fixation of and trafficking in sound recordings
and music videos of live musical performances [3]

(a) Offense. Whoever, without the consent of the performer or performers
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

shall be imprisoned for not more than 5 years or fined in the amount set
forth in this title, or 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
violation 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 forfeiture 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 copies 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 enactment of the Uruguay
Round Agreements Act, issue regulations to carry out this subsection,
including regulations by which any performer may, upon payment 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.

(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,
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
involved in the offense;

(B) holders of intellectual property rights in such works; and

(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.

* * * * * * *

Title 28 - Judiciary and Judicial Procedure

Part IV - Jurisdiction and Venue

Chapter 85 - District Courts; Jurisdiction

* * * * * * *

Sec. 1338. Patents, plant variety protection, copyrights, mask works,
trade-marks, and unfair competition {4}

(a) The district courts shall have original jurisdiction of any civil
action arising under any Act of Congress relating to patents, plant
variety protection, copyrights and trade-marks. 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 asserting a claim of unfair competition when joined with a
substantial and related claim under the copyright, patent, plant variety
protection or trade-mark laws.

(c) Subsections (a) and (b) apply to exclusive rights in mask works
under chapter 9 of title 17 to the same extent as such subsections apply
to copyrights.

* * * * * * * * *

Chapter 91 - United States Court of Federal Claims

* * * * * * * * *

Sec. 1498. Patent and copyright cases [5]

* * * * * * * * *

(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 action 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 except where he was in a position to order, influence, or
induce use of the copyrighted 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 preparation 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
infringement 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, having 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.

* * * * * * * * * *

(e) Subsections (b) and (c) of this section apply to exclusive rights in
mask works under chapter 9 of title 17 to the same extent as such
subsections apply to copyrights.

* * * * * * * * * *

Title 44 - Public Printing and Documents

Chapter 21 - National Archives and Records Administration

* * * * * * * * * *

Sec. 2117. Limitation on liability [6]

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 copyright or analogous rights arising
out of use of the materials for display, inspection, research,
reproduction, or other purposes.

---------------------
Appendix VII 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 amendment 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 U.S.C. Sec. 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 documentation" through to "knowingly traffics in
counterfeit documentation or packaging for a computer 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.

2 The Piracy and Counterfeiting Amendments Act of 1982 added section
2319 to title 18 of the *United States Code.* 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 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 5, chapter 5, *supra.*

3 In 1994, the Uruguay Round Agreements Act added section 2319A to
title 18 of the *United States Code.* Pub. L. No. 103-465, 108 Stat.
4809, 4974. In 1997, the No Electronic Theft Act amended section 2319A
by redesignating subsections (d) and (e) as subsections (e) and (f),
respectively, and by adding subsection (d). Pub. L. No. 105-147, 111
Stat. 2678. See also endnote 2, *supra*, regarding the United States
Sentencing Commission.

4 In 1948, section 1338, entitled "Patents, copyrights, trade-marks,
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 protection" after "patent." Pub. L. No. 91-577, 84 Stat. 1542,
1559. In 1988, the Judicial Improvements 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.

5 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 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.

6 In 1968, section 2113, entitled "Limitation on liability," was added
to title 44 of the *United States Code.* Pub. L. No. 90-620, 82 Stat.
1238, 1291. The Copyright Act of 1976 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.

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09-Aug-2001

*** End of this LibraryBlog Digital Book "Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, Circular 92" ***

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