[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2281 Engrossed in House (EH)]
2d Session
H. R. 2281
_______________________________________________________________________
AN ACT
To amend title 17, United States Code, to implement the World
Intellectual Property Organization Copyright Treaty and Performances
and Phonograms Treaty, and for other purposes.
105th CONGRESS
2d Session
H. R. 2281
_______________________________________________________________________
AN ACT
To amend title 17, United States Code, to implement the World
Intellectual Property Organization Copyright Treaty and Performances
and Phonograms Treaty, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Digital Millennium Copyright Act''.
SEC. 2. TABLE OF CONTENTS.
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--WIPO COPYRIGHT TREATIES IMPLEMENTATION
Sec. 101. Short title.
Sec. 102. Technical amendments.
Sec. 103. Copyright protection systems and copyright management
information.
Sec. 104. Development and implementation of technological protection
measures.
Sec. 105. Evaluation of impact of copyright law and amendments on
electronic commerce and technological
development.
Sec. 106. Effective date.
TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
Sec. 201. Short title.
Sec. 202. Limitations on liability for copyright infringement.
Sec. 203. Effective date.
TITLE III-COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
Sec. 301. Short title.
Sec. 302. Limitations on exclusive rights; computer programs.
TITLE IV--MISCELLANEOUS PROVISIONS
Subtitle A--Establishment of the Under Secretary of Commerce for
Intellectual Property Policy
Sec. 401. Under Secretary of Commerce for Intellectual Property Policy.
Sec. 402. Relationship with existing authorities.
Subtitle B--Related Provisions
Sec. 411. Ephemeral recordings.
Sec. 412. Limitations on exclusive rights; distance education.
Sec. 413. Exemption for libraries and archives.
Sec. 414. Fair use.
Sec. 415. Scope of exclusive rights in sound recordings; ephemeral
recordings.
Sec. 416. Assumption of contractual obligations related to transfers of
rights in motion pictures.
Sec. 417. First sale clarification.
TITLE V--COLLECTIONS OF INFORMATION ANTIPIRACY ACT
Sec. 501. Short title.
Sec. 502. Misappropriation of collections of information.
Sec. 503. Conforming amendment.
Sec. 504. Conforming amendments to title 28, United States Code.
Sec. 505. Effective date.
TITLE VI--PROTECTION OF CERTAIN ORIGINAL DESIGNS
Sec. 601. Short title.
Sec. 602. Protection of certain original designs.
Sec. 603. Conforming amendments.
Sec. 604. Effective date.
TITLE I--WIPO COPYRIGHT TREATIES IMPLEMENTATION
SEC. 101. SHORT TITLE.
This title may be cited as the ``WIPO Copyright Treaties
Implementation Act''.
SEC. 102. TECHNICAL AMENDMENTS.
(a) Definitions.--Section 101 of title 17, United States Code, is
amended--
(1) by striking the definition of ``Berne Convention
work'';
(2) in the definition of ``The `country of origin' of a
Berne Convention work''--
(A) by striking ``The `country of origin' of a
Berne Convention work, for purposes of section 411, is
the United States if'' and inserting ``For purposes of
section 411, a work is a `United States work' only
if'';
(B) in paragraph (1)--
(i) in subparagraph (B) by striking
``nation or nations adhering to the Berne
Convention'' and inserting ``treaty party or
parties'';
(ii) in subparagraph (C) by striking ``does
not adhere to the Berne Convention'' and
inserting ``is not a treaty party''; and
(iii) in subparagraph (D) by striking
``does not adhere to the Berne Convention'' and
inserting ``is not a treaty party''; and
(C) in the matter following paragraph (3) by
striking ``For the purposes of section 411, the
`country of origin' of any other Berne Convention work
is not the United States.'';
(3) by inserting after the definition of ``fixed'' the
following:
``The `Geneva Phonograms Convention' is the Convention for
the Protection of Producers of Phonograms Against Unauthorized
Duplication of Their Phonograms, concluded at Geneva,
Switzerland, on October 29, 1971.'';
(4) by inserting after the definition of ``including'' the
following:
``An `international agreement' is--
``(1) the Universal Copyright Convention;
``(2) the Geneva Phonograms Convention;
``(3) the Berne Convention;
``(4) the WTO Agreement;
``(5) the WIPO Copyright Treaty;
``(6) the WIPO Performances and Phonograms Treaty;
and
``(7) any other copyright treaty to which the
United States is a party.'';
(5) by inserting after the definition of ``transmit'' the
following:
``A `treaty party' is a country or intergovernmental
organization other than the United States that is a party to an
international agreement.'';
(6) by inserting after the definition of ``widow'' the
following:
``The `WIPO Copyright Treaty' is the WIPO Copyright Treaty
concluded at Geneva, Switzerland, on December 20, 1996.'';
(7) by inserting after the definition of ``The `WIPO
Copyright Treaty''' the following:
``The `WIPO Performances and Phonograms Treaty' is the WIPO
Performances and Phonograms Treaty concluded at Geneva,
Switzerland, on December 20, 1996.''; and
(8) by inserting after the definition of ``work made for
hire'' the following:
``The terms `WTO Agreement' and `WTO member country' have
the meanings given those terms in paragraphs (9) and (10),
respectively, of section 2 of the Uruguay Round Agreements
Act.''.
(b) Subject Matter of Copyright; National Origin.--Section 104 of
title 17, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1) by striking ``foreign nation
that is a party to a copyright treaty to which the
United States is also a party'' and inserting ``treaty
party'';
(B) in paragraph (2) by striking ``party to the
Universal Copyright Convention'' and inserting ``treaty
party'';
(C) by redesignating paragraph (5) as paragraph
(6);
(D) by redesignating paragraph (3) as paragraph (5)
and inserting it after paragraph (4);
(E) by inserting after paragraph (2) the following:
``(3) the work is a sound recording that was first fixed in
a treaty party; or'';
(F) in paragraph (4) by striking ``Berne Convention
work'' and inserting ``pictorial, graphic, or
sculptural work that is incorporated in a building or
other structure, or an architectural work that is
embodied in a building and the building or structure is
located in the United States or a treaty party''; and
(G) by inserting after paragraph (6), as so
redesignated, the following:
``For purposes of paragraph (2), a work that is published in the United
States or a treaty party within 30 days after publication in a foreign
nation that is not a treaty party shall be considered to be first
published in the United States or such treaty party, as the case may
be.''; and
(2) by adding at the end the following new subsection:
``(d) Effect of Phonograms Treaties.--Notwithstanding the
provisions of subsection (b), no works other than sound recordings
shall be eligible for protection under this title solely by virtue of
the adherence of the United States to the Geneva Phonograms Convention
or the WIPO Performances and Phonograms Treaty.''.
(c) Copyright in Restored Works.--Section 104A(h) of title 17,
United States Code, is amended--
(1) in paragraph (1), by striking subparagraphs (A) and (B)
and inserting the following:
``(A) a nation adhering to the Berne Convention;
``(B) a WTO member country;
``(C) a nation adhering to the WIPO Copyright
Treaty;
``(D) a nation adhering to the WIPO Performances
and Phonograms Treaty; or
``(E) subject to a Presidential proclamation under
subsection (g).'';
(2) by amending paragraph (3) to read as follows:
``(3) The term `eligible country' means a nation, other
than the United States, that--
``(A) becomes a WTO member country after the date
of the enactment of the Uruguay Round Agreements Act;
``(B) on such date of enactment is, or after such
date of enactment becomes, a nation adhering to the
Berne Convention;
``(C) adheres to the WIPO Copyright Treaty;
``(D) adheres to the WIPO Performances and
Phonograms Treaty; or
``(E) after such date of enactment becomes subject
to a proclamation under subsection (g).'';
(3) in paragraph (6)--
(A) in subparagraph (C)(iii) by striking ``and''
after the semicolon;
(B) at the end of subparagraph (D) by striking the
period and inserting ``; and''; and
(C) by adding after subparagraph (D) the following:
``(E) if the source country for the work is an
eligible country solely by virtue of its adherence to
the WIPO Performances and Phonograms Treaty, is a sound
recording.'';
(4) in paragraph (8)(B)(i)--
(A) by inserting ``of which'' before ``the
majority''; and
(B) by striking ``of eligible countries''; and
(5) by striking paragraph (9).
(d) Registration and Infringement Actions.--Section 411(a) of title
17, United States Code, is amended in the first sentence--
(1) by striking ``actions for infringement of copyright in
Berne Convention works whose country of origin is not the
United States and''; and
(2) by inserting ``United States'' after ``no action for
infringement of the copyright in any''.
(e) Statute of Limitations.--Section 507(a) of title 17, United
State Code, is amended by striking ``No'' and inserting ``Except as
expressly provided otherwise in this title, no''.
SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT MANAGEMENT
INFORMATION.
(a) In General.--Title 17, United States Code is amended by adding
at the end the following new chapter:
``CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS
``Sec.
``1201. Circumvention of copyright protection systems.
``1202. Integrity of copyright management information.
``1203. Civil remedies.
``1204. Criminal offenses and penalties.
``1205. Savings clause.
``1203. Civil remedies.
``Sec. 1201. Circumvention of copyright protection systems
``(a) Violations Regarding Circumvention of Technological
Measures.--(1)(A) No person shall circumvent a technological measure
that effectively controls access to a work protected 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)(i) The prohibition contained in subparagraph (A) shall not
apply to persons with respect to a copyrighted work which is in a
particular class of works and to which such persons have gained initial
lawful access, 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).
``(ii) The prohibition contained in subparagraph (A) shall not
apply to nonprofit libraries, archives, or educational institutions, or
to any entity described in section 501(c)(3), (4), or (6) of the
Internal Revenue Code of 1986 that is exempt from tax under section
501(a) of such Code, with respect to a particular class of works, if
such entities 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 Secretary of Commerce, in
consultation with the Under Secretary of Commerce for Intellectual
Property Policy, the Assistant Secretary of Commerce for Communications
and Information, and the Register of Copyrights, shall conduct a
rulemaking on the record to make the determination for purposes of
subparagraph (B) of whether nonprofit libraries, archives, or
educational institutions and other entities described in subparagraph
(B) or persons who have gained initial lawful access to a copyrighted
work are, or are likely to be in the succeeding 3-year period,
adversely affected by the prohibition under subparagraph (A) in their
ability to make noninfringing uses under this title of a particular
class of copyrighted works. In conducting such rulemaking, the
Secretary 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 of the prohibition on the circumvention
of technological measures applied to copyrighted works 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 Secretary, in consultation
with the Under Secretary of Commerce for Intellectual Property
Policy, the Assistant Secretary of Commerce for Communications
and Information, and the Register of Copyrights, considers
appropriate.
``(D) The Secretary shall publish any class of copyrighted works
for which the Secretary has determined, pursuant to the rulemaking
conducted under subparagraph (C), that noninfringing uses by nonprofit
libraries, archives, or educational institutions and other entities
described in subparagraph (B) or by persons who have gained initial
lawful access to a copyrighted work are, or are likely to be, adversely
affected, and the prohibition contained in subparagraph (A) shall not
apply to such entities with respect to such class of works, or to such
persons with respect to such copyrighted work, 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.
``(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 and Intelligence Activities.--This section
does not prohibit any lawfully authorized investigative, protective, 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.
``(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 for that person to make the
identification and analysis permitted under paragraph (1), or for the
limited purpose of that person achieving 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 paragraphs (1) and (2)
provides such information or means solely for the purpose of achieving
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 other applicable law.
``(4) For purposes of this subsection, the term `interoperability'
means the ability of computer programs to exchange information, and of
such programs mutually to use the information which has been exchanged.
``(g) Encryption Research.--
``(1) Definitions.--For purposes of this subsection--
``(A) the term `encryption research' means
activities necessary to identify and analyze flaws and
vulnerabilities of encryption technologies applied to
copyrighted works, if these activities are conducted to
advance the state of knowledge in the field of
encryption technology or to assist in the development
of encryption products; and
``(B) the term `encryption technology' means the
scrambling and descrambling of information using
mathematical formulas or algorithms.
``(2) Permissible acts of encryption research.--
Notwithstanding the provisions of subsection (a)(1)(A), it is
not a violation of that subsection for a person to circumvent a
technological measure as applied to a copy, phonorecord,
performance, or display of a published work in the course of an
act of good faith encryption research if--
``(A) the person lawfully obtained the encrypted
copy, phonorecord, performance, or display of the
published work;
``(B) such act is necessary to conduct such
encryption research;
``(C) the person made a good faith effort to obtain
authorization before the circumvention; and
``(D) such act does not constitute infringement
under this title or a violation of applicable law other
than this section, including section 1030 of title 18
and those provisions of title 18 amended by the
Computer Fraud and Abuse Act of 1986.
``(3) Factors in determining exemption.--In determining
whether a person qualifies for the exemption under paragraph
(2), the factors to be considered shall include--
``(A) whether the information derived from the
encryption research was disseminated, and if so,
whether 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 Under Secretary of
Commerce for Intellectual Property Policy, the Assistant
Secretary of Commerce for Communications and Information, and
the Register of Copyrights shall jointly report to the Congress
on the effect this subsection has had on--
``(A) encryption research and the development of
encryption technology;
``(B) the adequacy and effectiveness of
technological measures designed to protect copyrighted
works; and
``(C) protection of copyright owners against the
unauthorized access to their encrypted copyrighted
works.
The report shall include legislative recommendations, if any.
``(h) Excpetions Regarding Minors.--(1) 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--
``(A) does not itself violate the provisions of this title;
and
``(B) has the sole purpose to prevent the access of minors
to material on the Internet.
``(2) Notwithstanding the provisions of subsection (a)(1)(A), it is
not a violation of that subsection for a parent to circumvent a
technological measure that effectively controls access to a test,
examination, or other evaluation of his or her minor child's abilities
that is given by a nonprofit educational institution if--
``(A) the parent made a good faith effort to obtain
authorization before the circumvention; and
``(B) such act is necessary to obtain a copy of such test,
examination, or other evaluation.
``(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.
``Sec. 1202. Integrity of copyright management information
``(a) False Copyright Management Information.--No person shall
knowingly and with the intent to induce, enable, facilitate, or conceal
infringement--
``(1) provide copyright management information that is
false, or
``(2) distribute or import for distribution copyright
management information that is false.
``(b) Removal or Alteration of Copyright Management Information.--
No person shall, without the authority of the copyright owner or the
law--
``(1) intentionally remove or alter any copyright
management information,
``(2) distribute or import for distribution copyright
management information knowing that the copyright management
information has been removed or altered without authority of
the copyright owner or the law, or
``(3) distribute, import for distribution, or publicly
perform works, copies of works, or phonorecords, knowing that
copyright management information has been removed or altered
without authority of the copyright owner or the law,
knowing, or, with respect to civil remedies under section 1203, having
reasonable grounds to know, that it will induce, enable, facilitate, or
conceal an infringement of any right under this title.
``(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 and Intelligence Activities.--This section
does not prohibit any lawfully authorized investigative, protective, 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.
``(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 or works, a person identified in paragraph (1)
shall not be liable for a violation of subsection (b)
with respect to such copyright management information,
if the activity that constitutes such violation is not
intended to induce, enable, facilitate, or conceal
infringement of a right under this title, and if--
``(i) the transmission of such information
by such person would result in a perceptible
visual or aural degradation of the digital
signal; or
``(ii) the transmission of such information
by such person would conflict with--
``(I) an applicable government
regulation relating to transmission of
information in a digital signal;
``(II) an applicable industry-wide
standard relating to the transmission
of information in a digital signal that
was adopted by a voluntary consensus
standards body prior to the effective
date of this chapter; or
``(III) an applicable industry-wide
standard relating to the transmission
of information in a digital signal that
was adopted in a voluntary, consensus
standards-setting process open to
participation by a representative
cross-section of broadcast stations or
cable systems and copyright owners of a
category of works that are intended for
public performance by such stations or
systems.
``(3) Definitions.--As used in this subsection--
``(A) the term `broadcast station' has the meaning
given that term in section 3 of the Communications Act
of 1934 (47 U.S.C. 153)); and
``(B) the term `cable system' has the meaning given
that term in section 602 of the Communications Act of
1934 (47 U.S.C. 522)).
``Sec. 1203. Civil remedies
``(a) Civil Actions.--Any person injured by a violation of section
1201 or 1202 may bring a civil action in an appropriate United States
district court for such violation.
``(b) Powers of the Court.--In an action brought under subsection
(a), the court--
``(1) may grant temporary and permanent injunctions on such
terms as it deems reasonable to prevent or restrain a
violation, but in no event shall impose a prior restraint on
free speech or the press protected under the 1st amendment to
the Constitution;
``(2) at any time while an action is pending, may order the
impounding, on such terms as it deems reasonable, of any device
or product that is in the custody or control of the alleged
violator and that the court has reasonable cause to believe was
involved in a violation;
``(3) may award damages under subsection (c);
``(4) in its discretion may allow the recovery of costs by
or against any party other than the United States or an officer
thereof;
``(5) in its discretion may award reasonable attorney's
fees to the prevailing party; and
``(6) may, as part of a final judgment or decree finding a
violation, order the remedial modification or the destruction
of any device or product involved in the violation that is in
the custody or control of the violator or has been impounded
under paragraph (2).
``(c) Award of Damages.--
``(1) In general.--Except as otherwise provided in this
title, a person committing a violation of section 1201 or 1202
is liable for either--
``(A) the actual damages and any additional profits
of the violator, as provided in paragraph (2), or
``(B) statutory damages, as provided in paragraph
(3).
``(2) Actual damages.--The court shall award to the
complaining party the actual damages suffered by the party as a
result of the violation, and any profits of the violator that
are attributable to the violation and are not taken into
account in computing the actual damages, if the complaining
party elects such damages at any time before final judgment is
entered.
``(3) Statutory damages.--(A) At any time before final
judgment is entered, a complaining party may elect to recover
an award of statutory damages for each violation of section
1201 in the sum of not less than $200 or more than $2,500 per
act of circumvention, device, product, component, offer, or
performance of service, as the court considers just.
``(B) At any time before final judgment is entered, a
complaining party may elect to recover an award of statutory
damages for each violation of section 1202 in the sum of not
less than $2,500 or more than $25,000.
``(4) Repeated violations.--In any case in which the
injured party sustains the burden of proving, and the court
finds, that a person has violated section 1201 or 1202 within
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, or educational
institutions.--In the case of a nonprofit library,
archives, or educational institution, the court shall
remit damages in any case in which the library,
archives, or educational institution sustains the
burden of proving, and the court finds, that the
library, archives, or educational institution was not
aware and had no reason to believe that its acts
constituted a violation.
``Sec. 1204. Criminal offenses and penalties
``(a) In General.--Any person who violates section 1201 or 1202
willfully and for purposes of commercial advantage or private financial
gain--
``(1) shall be fined not more than $500,000 or imprisoned
for not more than 5 years, or both, for the first offense; and
``(2) shall be fined not more than $1,000,000 or imprisoned
for not more than 10 years, or both, for any subsequent
offense.
``(b) Limitation for Nonprofit Library, Archives, or Educational
Institution.--Subsection (a) shall not apply to a nonprofit library,
archives, or educational institution.
``(c) Statute of Limitations.--No criminal proceeding shall be
brought under this section unless such proceeding is commenced within
five years after the cause of action arose.
``Sec. 1205. Savings clause
``Nothing in this chapter abrogates, diminishes, or weakens the
provisions of, nor provides any defense or element of mitigation in a
criminal prosecution or civil action under, any Federal or State law
that prevents the violation of the privacy of an individual in
connection with the individual's use of the Internet.''.
(b) Conforming amendment.--The table of chapters for title 17,
United States Code, is amended by adding after the item relating to
chapter 11 the following:
``12. Copyright Protection and Management Systems........... 1201''.
SEC. 104. DEVELOPMENT AND IMPLEMENTATION OF TECHNOLOGICAL PROTECTION
MEASURES.
(a) Statement of Congressional Policy and Objective.--It is the
sense of the Congress that technological measures that effectively
control access to works protected under title 17, United States Code,
or that effectively protect a right of a copyright owner under such
title play a crucial role in safeguarding the interests of both
copyright owners and lawful users of copyrighted works in digital
formats, by facilitating lawful uses of such works while protecting the
private property interests of holders of rights under title 17, United
States Code. Accordingly, the expeditious implementation of such
measures, developed by the private sector is a key factor in realizing
the full benefits of making available copyrighted works through digital
networks, including the benefits set forth in this section.
(b) Technological Measures.--The technological measures referred to
in subsection (a) shall include, but not be limited to, those which--
(1) enable nonprofit libraries, for nonprofit purposes, to
continue to lend to library users copies or phonorecords that
such libraries have lawfully acquired, including the lending of
such copies or phonorecords in digital formats in a manner that
prevents infringement;
(2) effectively protect against the infringement of
exclusive rights under title 17, United States Code, and
facilitate the exercise of those exclusive rights; and
(3) promote the development and implementation of diverse
methods, mechanisms, and arrangements in the marketplace for
making available copyrighted works in digital formats which
provide opportunities for individual members of the public to
make lawful uses of copyrighted works in digital formats.
(c) Procedures for Developing and Implementing Technological
Measures.--The technological measures whose development and
implementation the Congress anticipates include, but are not limited
to, those which--
(1) are developed pursuant to a broad consensus in an open,
fair, voluntary, and multi-industry process;
(2) are made available on reasonable and nondiscriminatory
terms; and
(3) do not impose substantial costs or burdens on copyright
owners or on manufacturers of hardware or software used in
conjunction with copyrighted works in digital formats.
(d) Oversight and Reporting.--(1) The Under Secretary of Commerce
for Intellectual Property Policy, the Assistant Secretary of Commerce
for Communications and Information, and the Register of Copyrights
shall jointly review the impact of the enactment of section 1201 of
title 17, United States Code, on the access of individual users to
copyrighted works in digital formats and shall jointly report annually
thereon to the Committees on the Judiciary and on Commerce of the House
of Representatives and the Committees on the Judiciary and on Commerce,
Science, and Transportation of the Senate.
(2) Each report under paragraph (1) shall address the following
issues:
(A) The status of the development and implementation of
technological measures described in this section, including
measures that advance the objectives of this section, and the
effectiveness of such technological measures in protecting the
private property interests of copyright owners under title 17,
United States Code.
(B) The degree to which individual lawful users of
copyrighted works--
(i) have access to the Internet and digital
networks generally;
(ii) are dependent upon such access for their use
of copyrighted works;
(iii) have available to them other channels for
obtaining and using copyrighted works, other than the
Internet and digital networks generally;
(iv) are required to pay copyright owners or
intermediaries for each lawful use of copyrighted works
in digital formats to which they have access; and
(v) are able to utilize nonprofit libraries to
obtain access, through borrowing without payment by the
user, to copyrighted works in digital formats.
(C) The degree to which infringement of copyrighted works
in digital formats is occurring.
(D) Whether and the extent to which section 1201 of title
17, United States Code, is asserted as a basis for liability in
claims brought against persons conducting research and
development, including reverse engineering of copyrighted
works, and the extent to which such claims constitute a serious
impediment to the development and production of competitive
goods and services.
(E) The degree to which individual users of copyrighted
materials in digital formats are able effectively to protect
themselves against the use of technological measures to carry
out or facilitate the undisclosed collection and dissemination
of personally identifying information concerning the access to
and use of such materials by such users.
(F) Such other issues as the Under Secretary of Commerce
for Intellectual Property Policy, the Assistant Secretary of
Commerce for Communications and Information, and the Register
of Copyrights identify as relevant to the impact of the
enactment of section 1201 of title 17, United States Code, on
the access of individual users to copyrighted works in digital
formats.
(3) The first report under this subsection shall be submitted not
later than one year after the date of the enactment of this Act, and
the last such report shall be submitted not later than three years
after the date of the enactment of this Act.
(4) The reports under this subsection may include such
recommendations for additional legislative action as the Under
Secretary of Commerce for Intellectual Property Policy, the Assistant
Secretary of Commerce for Communications and Information, and the
Register of Copyrights consider advisable in order to further the
objectives of this section.
SEC. 105. EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON
ELECTRONIC COMMERCE AND TECHNOLOGICAL DEVELOPMENT.
(a) Evaluation by Under Secretary of Commerce and Register of
Copyrights.--The Under Secretary of Commerce for Intellectual Property
Policy, the Assistant Secretary of Commerce for Communications and
Information, and the Register of Copyrights 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.
(c) Report to Congress.--The Under Secretary of Commerce for
Intellectual Property Policy, the Assistant Secretary of Commerce for
Communications and Information, and the Register of Copyrights 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 (b), including any legislative recommendations the Under
Secretary, the Assistant Secretary, and the Register may have.
SEC. 106. EFFECTIVE DATE.
(a) In General.--Subject to subsection (b), this title and the
amendments made by this title shall take effect on the date of the
enactment of this Act.
(b) Amendments Relating to Certain International Agreements.--(1)
The following shall take effect upon the entry into force of the WIPO
Copyright Treaty with respect to the United States:
(A) Paragraph (5) of the definition of ``international
agreement'' contained in section 101 of title 17, United States
Code, as amended by section 102(a)(4) of this Act.
(B) The amendment made by section 102(a)(6) of this Act.
(C) Subparagraph (C) of section 104A(h)(1) of title 17,
United States Code, as amended by section 102(c)(1) of this
Act.
(D) Subparagraph (C) of section 104A(h)(3) of title 17,
United States Code, as amended by section 102(c)(2) of this
Act.
(2) The following shall take effect upon the entry into force of
the WIPO Performances and Phonograms Treaty with respect to the United
States:
(A) Paragraph (6) of the definition of ``international
agreement'' contained in section 101 of title 17, United States
Code, as amended by section 102(a)(4) of this Act.
(B) The amendment made by section 102(a)(7) of this Act.
(C) The amendment made by section 102(b)(2) of this Act.
(D) Subparagraph (D) of section 104A(h)(1) of title 17,
United States Code, as amended by section 102(c)(1) of this
Act.
(E) Subparagraph (D) of section 104A(h)(3) of title 17,
United States Code, as amended by section 102(c)(2) of this
Act.
(F) The amendments made by section 102(c)(3) of this Act.
TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
SEC. 201. SHORT TITLE.
This title may be cited as the ``Online Copyright Infringement
Liability Limitation Act''.
SEC. 202. LIMITATIONS ON LIABILITY FOR COPYRIGHT INFRINGEMENT.
(a) In General.--Chapter 5 of title 17, United States Code, is
amended by adding after section 511 the following new section:
``Sec. 512. Limitations on liability relating to material online
``(a) Transitory Digital Network Communications.--A service
provider shall not be liable for monetary relief, or, except as
provided in subsection (i), 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 (i), 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.
``(c) Information Residing on Systems or Networks At
Direction of Users.--
``(1) In general.--A service provider shall not be liable
for monetary relief, or, except as provided in subsection (i),
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 (4), 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) Limitation on liability of nonprofit educational
institutions.--A nonprofit educational institution that is a
service provider shall not be liable for monetary relief, or,
except as provided in subsection (i), for injunctive or other
equitable relief, by reason of the acts or omissions of a
faculty member, administrative employee, student, or graduate
student, unless such faculty member, administrative employee,
student, or graduate student is exercising managerial or
operational responsibilities that directly relate to the
institution's function as a service provider.
``(3) 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
(4), 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.
``(4) 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 (i),
for injunctive or other equitable relief, for infringement of copyright
by reason of the provider referring or linking users to an online
location containing infringing material or infringing activity, by
using information location tools, including a directory, index,
reference, pointer, or hypertext link, if the service provider--
``(1)(A) does not have actual knowledge that the material
or activity is infringing;
``(B) in the absence of such actual knowledge, is not aware
of facts or circumstances from which infringing activity is
apparent; or
``(C) upon obtaining such knowledge or awareness, acts
expeditiously to remove, or disable access to, the material;
``(2) does not receive a financial benefit directly
attributable to the infringing activity, in a case in which the
service provider has the right and ability to control such
activity; and
``(3) upon notification of claimed infringement as
described in subsection (c)(4), 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)(4)(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) 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.
``(f) 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 replace the removed
material or cease disabling access to it in 10 business
days; and
``(C) replaces the removed material and ceases
disabling access to it not less than 10, nor more than
14, business days following receipt of the counter
notice, unless its designated agent first receives
notice from the person who submitted the notification
under subsection (c)(1)(C) that such person has filed
an action seeking a court order to restrain the
subscriber from engaging in infringing activity
relating to the material on the service provider's
system or network.
``(3) Contents of counter notification.--To be effective
under this subsection, a counter notification must be a written
communication provided to the service provider's designated
agent that includes substantially the following:
``(A) A physical or electronic signature of the
subscriber.
``(B) Identification of the material that has been
removed or to which access has been disabled and the
location at which the material appeared before it was
removed or access to it was disabled.
``(C) A statement under penalty of perjury that the
subscriber has a good faith belief that the material
was removed or disabled as a result of mistake or
misidentification of the material to be removed or
disabled.
``(D) The subscriber's name, address, and telephone
number, and a statement that the subscriber consents to
the jurisdiction of Federal District Court for the
judicial district in which the address is located, or
if the subscriber's address is outside of the United
States, for any judicial district in which the service
provider may be found, and that the subscriber will
accept service of process from the person who provided
notification under subsection (c)(1)(C) or an agent of
such person.
``(4) Limitation on other liability.--A service provider's
compliance with paragraph (2) shall not subject the service
provider to liability for copyright infringement with respect
to the material identified in the notice provided under
subsection (c)(1)(C).
``(g) 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)(4)(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)(4)(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)(4)(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.
``(h) Conditions for Eligibility.--
``(1) Accommodation of technology.--The limitations on
liability established by this section shall apply to a service
provider only if the service provider--
``(A) has adopted and reasonably implemented, and
informs subscribers and account holders of the service
provider's system or network of, a policy that provides
for the termination in appropriate circumstances of
subscribers and account holders of the service
provider's system or network who are repeat infringers;
and
``(B) accommodates and does not interfere with
standard technical measures.
``(2) Definition.--As used in this subsection, the term
`standard technical measures' means technical measures that are
used by copyright owners to identify or protect copyrighted
works and--
``(A) have been developed pursuant to a broad
consensus of copyright owners and service providers in
an open, fair, voluntary, multi-industry standards
process;
``(B) are available to any person on reasonable and
nondiscriminatory terms; and
``(C) do not impose substantial costs on service
providers or substantial burdens on their systems or
networks.
``(i) 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.
``(j) 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.
``(k) 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.
``(l) 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 (h); or
``(2) a service provider gaining access to, removing, or
disabling access to material in cases in which such conduct is
prohibited by law.
``(m) Construction.--Subsections (a), (b), (c), and (d) describe
separate and distinct functions for purposes of applying this section.
Whether a service provider qualifies for the limitation on liability in
any one of those subsections shall be based solely on the criteria in
that subsection, and shall not affect a determination of whether that
service provider qualifies for the limitations on liability under any
other such subsection.''.
(b) Conforming Amendment.--The table of sections for chapter 5 of
title 17, United States Code, is amended by adding at the end the
following:
``512. Limitations on liability relating to material online.''.
(c) Effective Date.--The amendments made by this section take
effect on the date of the enactment of this 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 III-COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
SEC. 301. SHORT TITLE.
This title may be cited as the ``Computer Maintenance Competition
Assurance Act''.
SEC. 302. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER PROGRAMS.
Section 117 of title 17, United States Code, is amended--
(1) by striking ``Notwithstanding'' and inserting the following:
``(a) Making of Additional Copy or Adaptation by Owner of Copy.--
Notwithstanding'';
(2) by striking ``Any exact'' and inserting the following:
``(b) Lease, Sale, or Other Transfer of Additional Copy or
Adaptation.--Any exact''; and
(3) by adding at the end the following:
``(c) Machine Maintenance or Repair.--Notwithstanding the
provisions of section 106, it is not an infringement for the owner or
lessee of a machine to make or authorize the making of a copy of a
computer program if such copy is made solely by virtue of the
activation of a machine that lawfully contains an authorized copy of
the computer program, for purposes only of maintenance or repair of
that machine, if--
``(1) such new copy is used in no other manner and is
destroyed immediately after the maintenance or repair is
completed; and
``(2) with respect to any computer program or part thereof
that is not necessary for that machine to be activated, such
program or part thereof is not accessed or used other than to
make such new copy by virtue of the activation of the machine.
``(d) Definitions.--For purposes of this section--
``(1) the `maintenance' of a machine is the servicing of
the machine in order to make it work in accordance with its
original specifications and any changes to those specifications
authorized for that machine; and
``(2) the `repair' of a machine is the restoring of the
machine to the state of working in accordance with its original
specifications and any changes to those specifications
authorized for that machine.''.
TITLE IV--MISCELLANEOUS PROVISIONS
Subtitle A--Establishment of the Under Secretary of Commerce for
Intellectual Property Policy
SEC. 401. UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY POLICY.
(a) Appointment.--There shall be within the Department of Commerce
an Under Secretary of Commerce for Intellectual Property Policy, who
shall be appointed by the President, by and with the advice and consent
of the Senate, at level II of the Executive Schedule. On or after the
effective date of this subtitle, the President may designate an
individual to serve as the Acting Under Secretary until the date on
which an Under Secretary qualifies under this subsection.
(b) Duties.--The Under Secretary of Commerce for Intellectual
Property Policy, under the direction of the Secretary of Commerce,
shall perform the following functions with respect to intellectual
property policy:
(1) In coordination with the Under Secretary of Commerce
for International Trade, promote exports of goods and services
of the United States industries that rely on intellectual
property.
(2) Advise the President, through the Secretary of
Commerce, on national and certain international issues relating
to intellectual property policy, including issues in the areas
of patents, trademarks, and copyrights.
(3) Advise Federal departments and agencies on matters of
intellectual property protection in other countries.
(4) Provide guidance, as appropriate, with respect to
proposals by agencies to assist foreign governments and
international intergovernmental organizations on matters of
intellectual property protection.
(5) Conduct programs and studies related to the
effectiveness of intellectual property protection throughout
the world.
(6) Advise the Secretary of Commerce on programs and
studies relating to intellectual property policy that are
conducted, or authorized to be conducted, cooperatively with
foreign patent and trademark offices and international
intergovernmental organizations.
(7) In coordination with the Department of State, conduct
programs and studies cooperatively with foreign intellectual
property offices and international intergovernmental
organizations.
(c) Deputy Under Secretaries.--To assist the Under Secretary of
Commerce for Intellectual Property Policy, the Under Secretary shall
appoint a Deputy Under Secretary for Patent Policy and a Deputy Under
Secretary for Trademark Policy, as members of the Senior Executive
Service in accordance with the provisions of title 5, United States
Code. The Deputy Under Secretaries shall perform such duties and
functions as the Under Secretary shall prescribe.
(d) Compensation.--Section 5313 of title 5, United States Code, is
amended by adding at the end the following: ``Under Secretary of
Commerce for Intellectual Property Policy.''
(e) Funding.--Funds available to the Patent and Trademark Office
shall be made available for all expenses of the Office of the Under
Secretary of Commerce for Intellectual Property Policy, subject to
prior approval in appropriations Acts. Amounts made available under
this subsection shall not exceed 2 percent of the projected annual
revenues of the Patent and Trademark Office from fees for services and
goods of that Office. The Secretary of Commerce shall determine the
budget requirements of the Office of the Under Secretary for
Intellectual Property Policy.
(f) Consultation.--In connection with the performance of his or her
duties under this section, the Under Secretary shall, on appropriate
matters, consult with the Register of Copyrights.
SEC. 402. RELATIONSHIP WITH EXISTING AUTHORITIES.
(a) No Derogation.--Nothing in section 401 shall derogate from the
duties of the United States Trade Representative or from the duties of
the Secretary of State. In addition, nothing in this subtitle shall
derogate from the duties and functions of the Register of Copyrights or
otherwise alter current authorities relating to copyright matters.
(b) Clarification of Authority of the Copyright Office.--Section
701 of title 17, United States Code, is amended--
(1) by redesignating subsections (b) through (e) as
subsections (c) through (f), respectively; and
(2) by inserting after subsection (a) the following:
``(b) In addition to the functions and duties set out elsewhere in
this chapter, the Register of Copyrights shall perform the following
functions:
``(1) Advise Congress on national and international issues
relating to copyright, other matters arising under chapters 9,
12, 13, and 14 of 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 chapters 9, 12, 13, and 14 of 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 chapters 9, 12, 13, and 14 of 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 chapters 9, 12, 13, and 14 of 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.''
Subtitle B--Related Provisions
SEC. 411. EPHEMERAL RECORDINGS.
Section 112(a) of title 17, United States Code, is amended--
(1) by redesignating paragraphs (1), (2), and (3) as
subparagraphs (A), (B), and (C), respectively;
(2) by inserting ``(1)'' after ``(a)''; and
(3) by inserting after ``114(a),'' the following: ``or for
a transmitting organization that is a broadcast radio or
television station licensed as such by the Federal
Communications Commission that broadcasts a performance of a
sound recording in a digital format on a nonsubscription
basis,''; and
(4) by adding at the end the following:
``(2) In a case in which a transmitting organization entitled to
make a copy or phonorecord under paragraph (1) in connection with the
transmission to the public of a performance or display of a work is
prevented from making such copy or phonorecord by reason of the
application by the copyright owner of technical measures that prevent
the reproduction of the work, the copyright owner shall make available
to the transmitting organization the necessary means for permitting the
making of such copy or phonorecord as permitted under that paragraph,
if it is technologically feasible and economically reasonable for the
copyright owner to do so. If the copyright owner fails to do so in a
timely manner in light of the transmitting organization's reasonable
business requirements, the transmitting organization shall not be
liable for a violation of section 1201(a)(1) of this title for engaging
in such activities as are necessary to make such copies or phonorecords
as permitted under paragraph (1) of this subsection.''.
SEC. 412. 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. 413. EXEMPTION FOR LIBRARIES AND ARCHIVES.
Section 108 of title 17, United States Code, is amended--
(1) in subsection (a)--
(A) by striking ``Notwithstanding'' and inserting
``Except as otherwise provided in this title and
notwithstanding'';
(B) by inserting after ``no more than one copy or
phonorecord of a work'' the following: ``, except as
provided in subsections (b) and (c)''; and
(C) in paragraph (3) by inserting after
``copyright'' the following: ``that appears on the copy
or phonorecord that is reproduced under the provisions
of this section, or includes a legend stating that the
work may be protected by copyright if no such notice
can be found on the copy or phonorecord that is
reproduced under the provisions of this section'';
(2) in subsection (b)--
(A) by striking ``a copy or phonorecord'' and
inserting ``three copies or phonorecords'';
(B) by striking ``in facsimile form''; and
(C) by striking ``if the copy or phonorecord
reproduced is currently in the collections of the
library or archives.'' and inserting ``if--
``(1) the copy or phonorecord reproduced is currently in
the collections of the library or archives; and
``(2) any such copy or phonorecord that is reproduced in
digital format is not otherwise distributed in that format and
is not made available to the public in that format outside the
premises of the library or archives.''; and
(3) in subsection (c)--
(A) by striking ``a copy or phonorecord'' and
inserting ``three copies or phonorecords'';
(B) by striking ``in facsimile form'';
(C) by inserting ``or if the existing format in
which the work is stored has become obsolete,'' after
``stolen,''; and
(D) by striking ``if the library or archives has,
after a reasonable effort, determined that an unused
replacement cannot be obtained at a fair price.'' and
inserting ``if--
``(1) the library or archives has, after a reasonable
effort, determined that an unused replacement cannot be
obtained at a fair price; and
``(2) any such copy or phonorecord that is reproduced in
digital format is not made available to the public in that
format outside the premises of the library or archives in
lawful possession of such copy.''; and
(E) by adding at the end the following:
``For purposes of this subsection, a format shall be considered
obsolete if the machine or device necessary to render perceptible a
work stored in that format is no longer manufactured or is no longer
reasonably available in the commercial marketplace.''.
SEC. 414. FAIR USE.
Section 107 of title 17, United States Code, is amended in the
first sentence by striking ``, including such use'' and all that
follows through ``section,''.
SEC. 415. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS; EPHEMERAL
RECORDINGS.
(a) Scope of Exclusive Rights in Sound Recordings.--Section 114 of
title 17, United States Code, is amended as follows:
(1) Subsection (d) is amended--
(A) by striking subparagraph (A) and inserting the
following:
``(A) a nonsubscription broadcast transmission;'';
and
(B) by amending paragraph (2) to read as follows:
``(2) Statutory Licensing of Certain Transmissions.--The
performance of a sound recording publicly by means of a
subscription digital audio transmission not exempt under
paragraph (1) or an eligible nonsubscription digital audio
transmission shall be subject to statutory licensing, in
accordance with subsection (f) if--
``(A) in the case of a subscription transmission
not exempt under paragraph (1) or an eligible
nonsubscription transmission--
``(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 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) by a preexisting
subscription service in the same transmission medium
used by such service on July 31, 1998--
``(i) the transmission does not exceed the
sound recording performance complement;
``(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) 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 the broadcast station
makes broadcast transmissions--
``(I) in digital format that
regularly exceed the sound recording
performance complement; or
``(II) in analog format, a
substantial portion of which, on a
weekly basis, exceed the sound
recording performance complement;
Provided, however, That 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 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 any 1-
hour period, no more than 3 such announcements
are made with respect to no more than 2 artists
in each announcement;
``(iii) the transmission is not part of--
``(I) an archived program of less
than 5 hours duration;
``(II) an archived program of
greater than 5 hours duration that is
made available for a period exceeding 2
weeks;
``(III) a continuous program which
is of less than 3 hours duration; or
``(IV) a program, other than an
archived or continuous program, that is
transmitted at a scheduled time more
than 3 additional times in a 2-week
period following the first transmission
of the program and for an additional 2-
week period more than 1 month following
the end of the first such 2-week
period;
``(iv) the transmitting entity does not
knowingly perform the sound recording 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 together
with transmissions by other transmitting
entities to select a particular sound recording
to be transmitted to the transmission
recipient;
``(vi) the transmitting entity takes
reasonable steps to ensure, to the extent
within its control, that the transmission
recipient cannot make a phonorecord in a
digital format of the transmission, and the
transmitting entity takes no affirmative steps
to cause or induce the making of a phonorecord
by the transmission recipient;
``(vii) phonorecords of the sound recording
have been distributed to the public in the
United States 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 this title;
``(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; and
``(ix) in the case of an eligible
nonsubscription transmission, the transmitting
entity identifies 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 perceived
by the transmission recipient, 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.''.
(2) Subsection (f) is amended to read as follows:
(A) in paragraph (1)--
(i) in the first sentence--
(I) by striking ``(1) No'' and
inserting ``(1)(A) No'';
(II) by striking ``the activities''
and inserting ``subscription
transmissions by preexisting
subscription services''; and
(III) by striking ``2000'' and
inserting ``2001''; and
(ii) by amending the third sentence to read
as follows: ``Any copyright owners of sound
recordings or any preexisting subscription
services may submit to the Librarian of
Congress licenses covering such subscriptions
transmissions with respect to such sound
recordings.''; and
(B) by striking paragraphs (2), (3), (4), and (5)
and inserting the following:
``(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 preexisting
subscription services. In establishing rates and terms for
preexisting subscription services, in addition to the
objectives set forth in section 801(b)(1), the copyright
arbitration royalty panel may consider the rates and terms for
comparable types of subscription digital audio transmission
services and comparable circumstances under voluntary license
agreements negotiated as provided in subparagraph (A).
``(C)(i) 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 preexisting subscription 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 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 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 section
may submit to the Librarian of Congress licenses covering such
eligible nonsubscription transmissions 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 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 copyright user 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.
``(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 if
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).
``(ii) The procedures specified in subparagraph (B) shall
be repeated, in accordance with regulations that the Librarian
of Congress shall prescribe, upon filing of a petition in
accordance with section 803(a)(1) during a 60-day period
commencing--
``(I) 6 months after publication of a notice of the
initiation of voluntary negotiation proceedings under
subparagraph (A) pursuant to a petition under clause
(i)(I); or
``(II) on July 1, 2000, and at 2-year intervals
thereafter, except to the extent that different years
for the repeating of such proceedings may be determined
in accordance with subparagraph (A).
``(iii) The procedures specified in subparagraph (B) shall
be concluded in accordance with section 802.
``(3) License agreements voluntarily negotiated at any time
between 1 or more copyright owners of sound recordings and 1 or
more entities performing sound recordings shall be given effect
in lieu of any determination by a copyright arbitration royalty
panel or decision by the Librarian of Congress.
``(4)(A) The Librarian of Congress shall also establish
requirements by which copyright owners may receive reasonable
notice of the use of their sound recordings under this section,
and under which records of such use shall be kept and made
available by entities performing sound recordings.
``(B) Any person who wishes to perform a sound recording
publicly by means of a transmission eligible for statutory
licensing under this subsection may do so without infringing
the exclusive right of the copyright owner of the sound
recording--
``(i) by complying with such notice requirements as
the Librarian of Congress shall prescribe by regulation
and by paying royalty fees in accordance with this
subsection; or
``(ii) if such royalty fees have not been set, by
agreeing to pay such royalty fees as shall be
determined in accordance with this subsection.
``(C) Any royalty payments in arrears shall be made on or
before the twentieth day of the month next succeeding the month
in which the royalty fees are set.''.
(3) Subsection (g) is amended--
(A) in the subsection heading by striking
``Subscription'';
(B) in paragraph (1) in the matter preceding
subparagraph (A), by striking ``subscription
transmission licensed'' and inserting ``transmission
licensed under a statutory license'';
(C) in subparagraphs (A) and (B) by striking
``subscription''; and
(D) in paragraph (2) by striking ``subscription''.
(4) Subsection (j) is amended--
(A) by redesignating paragraphs (2), (3), (5), (6),
(7), and (8) as paragraphs (3), (5), (9), (11), (12),
and (13), respectively;
(B) by inserting after paragraph (1) the following:
``(2) An `archived program' is a prerecorded program that
is available repeatedly on demand and that is performed in the
same predetermined order from the beginning.'';
(C) by inserting after paragraph (3), as so
redesignated, the following:
``(4) A `continuous program' is a prerecorded program that
is continuously performed in the same predetermined order and
the point in the program at which it is accessed is beyond the
control of the transmission recipient.'';
(D) by inserting after paragraph (5), as so
redesignated, the following:
``(6) An `eligible nonsubscription transmission' is a
noninteractive, nonsubscription transmission 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
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 subscription digital
audio transmissions and that is not a preexisting subscription
service.'';
(E) by inserting after paragraph (9), as so
redesignated, the following:
``(10) 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 transmission to the public for
a fee on or before July 31, 1998.''; and
(F) by adding at the end the following:
``(14) A `transmission' is either an initial transmission
or a retransmission.''.
(b) Ephemeral Recordings.--Section 112 of title 17, United States
Code, is amended by adding at the end the following:
``(f) Statutory License.--(1) An ephemeral recording of a sound
recording by a transmitting organization entitled to transmit to the
public a performance of that sound recording by means of a digital
audio transmission under a statutory license in accordance with section
114(f) or an exemption provided in section 114(d)(1)(B) or (C) is
subject to statutory licensing under the conditions specified by this
subsection.
``(2) A statutory license under this subsection grants a
transmitting organization entitled to transmit to the public a
performance of a sound recording by means of a digital audio
transmission under a statutory license in accordance with section
114(f) or an exemption provided in section 114(d)(1)(B) or (C) the
privilege of making no more than 1 phonorecord of the sound recording
(unless the terms and conditions of the statutory license allow for
more), if--
``(A) the phonorecord is retained and used solely by the
transmitting organization that made it, and no further
phonorecords are reproduced from it; and
``(B) the phonorecord is used solely for the transmitting
organization's own transmissions in the United States under a
statutory license in accordance with section 114(f) or an
exemption provided in section 114(d)(1)(B) or (C);
``(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; and
``(D) phonorecords of the sound recording have been
distributed to the public in the United States 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 and acquired under this title.
``(3) Notwithstanding any provision of the antitrust laws, any
copyright owners of sound recordings and any transmitting organizations
entitled to obtain a statutory license under this subsection may
negotiate and agree upon royalty rates and license terms and conditions
for ephemeral recordings of such sound recordings and the proportionate
division of fees paid among copyright owners, and may designate common
agents to negotiate, agree to, pay, or receive such royalty payments.
``(4) No later than 30 days after the date of the enactment of the
Digital Millennium Copyright Act, the Librarian of Congress shall cause
notice to be published in the Federal Register of the initiation of
voluntary negotiation proceedings for the purpose of determining
reasonable terms and rates of royalty payments for the activities
specified by paragraph (2) of this subsection during the period
beginning on the date of the enactment of such Act and ending on
December 31, 2000, or such other date as the parties may agree. Such
rates shall include a minimum fee for each type of service. Any
copyright owners of sound recordings or any transmitting organizations
entitled to obtain a statutory license under this subsection may submit
to the Librarian of Congress licenses covering such activities with
respect to such sound recordings. The parties to each negotiation
proceeding shall bear their own costs.
``(5) In the absence of license agreements negotiated under
paragraph (3), during the 60-day period commencing 6 months after
publication of the notice specified in paragraph (4), and upon the
filing of a petition in accordance with section 803(a)(1), the
Librarian of Congress shall, pursuant to chapter 8, convene a copyright
arbitration royalty panel to determine and publish in the Federal
Register a schedule of reasonable rates and terms which, subject to
paragraph (6), shall be binding on all copyright owners of sound
recordings and transmitting organizations entitled to obtain 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.
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;
``(B) the relative rules of the copyright owner and the
copyright user 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 (3) and (4). The
Librarian of Congress shall also establish requirements by which
copyright owners may receive reasonable notice of the use of their
sound recordings under this section, and under which records of such
use shall be kept and made available by transmitting organizations
entitled to obtain a statutory license under this subsection.
``(6) License agreements voluntarily negotiated at any time between
1 or more copyright owners of sound recordings and 1 or more
transmitting organizations entitled to obtain a statutory license under
this subsection shall be given effect in lieu of any determination by a
copyright arbitration royalty panel or decision by the Librarian of
Congress.
``(7) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in paragraph (4) shall be
repeated, in accordance with regulations that the Librarian of Congress
shall prescribe, in the first week of January 2000, and at 2-year
intervals thereafter, except to the extent that different years for the
repeating of such proceedings may be determined in accordance with
paragraph (4). The procedures specified in paragraph (5) shall be
repeated, in accordance with regulations that the Librarian of Congress
shall prescribe, upon filing of a petition in accordance with section
803(a)(1) during a 60-day period commencing on July 1, 2000, and at 2-
year intervals thereafter, except to the extent that different years
for the repeating of such proceedings may be determined in accordance
with paragraph (4). The procedures specified in paragraph (5) shall be
concluded in accordance with section 802.
``(8)(A) Any person who wishes to make an ephemeral recording of a
sound recording under a statutory license in accordance with this
subsection may do so without infringing the exclusive right of the
copyright owner of the sound recording under section 106(1)--
``(i) by complying with such notice requirements as the
Librarian of Congress shall prescribe by regulation and by
paying royalty fees in accordance with this subsection; or
``(ii) if such royalty fees have not been set, by agreeing
to pay such royalty fees as shall be determined in accordance
with this subsection.
``(B) Any royalty payments in arrears shall be made on or before
the 20th day of the month next succeeding the month in which the
royalty fees are set.
``(9) If a transmitting organization entitled to make a phonorecord
under this subsection is prevented from making such phonorecord by
reason of the application by the copyright owner of technical measures
that prevent the reproduction of the sound recording, the copyright
owner shall make available to the transmitting organization the
necessary means for permitting the making of such phonorecord within
the meaning of 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.''.
SEC. 416. 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.--In the case of a transfer of
copyright ownership in a motion picture (as 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--
``(1) 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
``(2) 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.
``(b) 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)(2), the transferor shall be liable
to the transferee for any damages suffered by the transferee as a
result of the failure to notify.
``(c) Determination of Disputes and Claims.--Any dispute concerning
the application of subsection (a) and any claim made under subsection
(b) 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.''.
(b) Conforming Amendment.--The table of chapters for part VI of
title 28, United States Code, is amended by adding at the end the
following:
``180. Assumption of Certain Contractual Obligations4001''.<plus-minus>
SEC. 417. FIRST SALE CLARIFICATION.
Section 109(a) of title 17, United States Code, is amended by
striking the first sentence and inserting the following:
``Notwithstanding the provisions of section 106(3), the owner of a
particular lawfully made copy or phonorecord that has been distributed
in the United States by the authority of the copyright owner, or any
person authorized by the owner of that copy or phonorecord, is
entitled, without the authority of the copyright owner, to sell or
otherwise dispose of the possession of that copy or phonorecord.''.
TITLE V--COLLECTIONS OF INFORMATION ANTIPIRACY ACT
SEC. 501. SHORT TITLE.
This title may be cited as the ``Collections of Information
Antipiracy Act''.
SEC. 502. MISAPPROPRIATION OF COLLECTIONS OF INFORMATION.
Title 17, United States Code, is amended by adding at the end the
following new chapter:
``CHAPTER 13--MISAPPROPRIATION OF COLLECTIONS OF INFORMATION
``Sec.
``1301. Definitions.
``1302. Prohibition against misappropriation.
``1303. Permitted acts.
``1304. Exclusions.
``1305. Relationship to other laws.
``1306. Civil remedies.
``1307. Criminal offenses and penalties.
``1308. Limitations on actions.
``Sec. 1301. Definitions
``As used in this chapter:
``(1) Collection of information.--The term `collection of
information' means information that has been collected and has
been organized for the purpose of bringing discrete items of
information together in one place or through one source so that
users may access them.
``(2) Information.--The term `information' means facts,
data, works of authorship, or any other intangible material
capable of being collected and organized in a systematic way.
``(3) Potential market.--The term `potential market' means
any market that a person claiming protection under section 1302
has current and demonstrable plans to exploit or that is
commonly exploited by persons offering similar products or
services incorporating collections of information.
``(4) Commerce.--The term `commerce' means all commerce
which may be lawfully regulated by the Congress.
``(5) Product or service.--A product or service
incorporating a collection of information does not include a
product or service incorporating a collection of information
gathered, organized, or maintained to address, route, forward,
transmit, or store digital online communications or provide or
receive access to connections for digital online
communications.
``Sec. 1302. Prohibition against misappropriation
``Any person who extracts, or uses in commerce, all or a
substantial part, measured either quantitatively or qualitatively, of a
collection of information gathered, organized, or maintained by another
person through the investment of substantial monetary or other
resources, so as to cause harm to the actual or potential market of
that other person, or a successor in interest of that other person, for
a product or service that incorporates that collection of information
and is offered or intended to be offered for sale or otherwise in
commerce by that other person, or a successor in interest of that
person, shall be liable to that person or successor in interest for the
remedies set forth in section 1306.
``Sec. 1303. Permitted acts
``(a) Individual Items of Information and Other Insubstantial
Parts.--Nothing in this chapter shall prevent the extraction or use of
an individual item of information, or other insubstantial part of a
collection of information, in itself. An individual item of
information, including a work of authorship, shall not itself be
considered a substantial part of a collection of information under
section 1302. Nothing in this subsection shall permit the repeated or
systematic extraction or use of individual items or insubstantial parts
of a collection of information so as to circumvent the prohibition
contained in section 1302.
``(b) Gathering or Use of Information Obtained Through Other
Means.--Nothing in this chapter shall restrict any person from
independently gathering information or using information obtained by
means other than extracting it from a collection of information
gathered, organized, or maintained by another person through the
investment of substantial monetary or other resources.
``(c) Use of Information for Verification.--Nothing in this chapter
shall restrict any person from extracting or using a collection of
information within any entity or organization, for the sole purpose of
verifying the accuracy of information independently gathered,
organized, or maintained by that person. Under no circumstances shall
the information so used be extracted from the original collection and
made available to others in a manner that harms the actual or potential
market for the collection of information from which it is extracted or
used.
``(d) Nonprofit Educational, Scientific, or Research Uses.--
Notwithstanding section 1302, no person shall be restricted from
extracting or using information for nonprofit educational, scientific,
or research purposes in a manner that does not harm directly the actual
market for the product or service referred to in section 1302.
``(e) News Reporting.--Nothing in this chapter shall restrict any
person from extracting or using information for the sole purpose of
news reporting, including news gathering, dissemination, and comment,
unless the information so extracted or used is time sensitive and has
been gathered by a news reporting entity, and the extraction or use is
part of a consistent pattern engaged in for the purpose of direct
competition.
``(f) Transfer of Copy.--Nothing in this chapter shall restrict the
owner of a particular lawfully made copy of all or part of a collection
of information from selling or otherwise disposing of the possession of
that copy.
``Sec. 1304. Exclusions
``(a) Government Collections of Information.--
``(1) Exclusion.--Protection under this chapter shall not
extend to collections of information gathered, organized, or
maintained by or for a government entity, whether Federal,
State, or local, including any employee or agent of such
entity, or any person exclusively licensed by such entity,
within the scope of the employment, agency, or license. Nothing
in this subsection shall preclude protection under this chapter
for information gathered, organized, or maintained by such an
agent or licensee that is not within the scope of such agency or
license, or by a Federal or State educational institution in the course
of engaging in education or scholarship.
``(2) Exception.--The exclusion under paragraph (1) does
not apply to any information required to be collected and
disseminated--
``(A) under the Securities Exchange Act of 1934 by
a national securities exchange, a registered securities
association, or a registered securities information
processor, subject to section 1305(g) of this title; or
``(B) under the Commodity Exchange Act by a
contract market, subject to section 1305(g) of this
title.
``(b) Computer Programs.--
``(1) Protection not extended.--Subject to paragraph (2),
protection under this chapter shall not extend to computer
programs, including, but not limited to, any computer program
used in the manufacture, production, operation, or maintenance
of a collection of information, or any element of a computer
program necessary to its operation.
``(2) Incorporated collections of information.--A
collection of information that is otherwise subject to
protection under this chapter is not disqualified from such
protection solely because it is incorporated into a computer
program.
``Sec. 1305. Relationship to other laws
``(a) Other Rights Not Affected.--Subject to subsection (b),
nothing in this chapter shall affect rights, limitations, or remedies
concerning copyright, or any other rights or obligations relating to
information, including laws with respect to patent, trademark, design
rights, antitrust, trade secrets, privacy, access to public documents,
and the law of contract.
``(b) Preemption of State Law.--On or after the effective date of
this chapter, all rights that are equivalent to the rights specified in
section 1302 with respect to the subject matter of this chapter shall
be governed exclusively by Federal law, and no person is entitled to
any equivalent right in such subject matter under the common law or
statutes of any State. State laws with respect to trademark, design
rights, antitrust, trade secrets, privacy, access to public documents,
and the law of contract shall not be deemed to provide equivalent
rights for purposes of this subsection.
``(c) Relationship to Copyright.--Protection under this chapter is
independent of, and does not affect or enlarge the scope, duration,
ownership, or subsistence of, any copyright protection or limitation,
including, but not limited to, fair use, in any work of authorship that
is contained in or consists in whole or part of a collection of
information. This chapter does not provide any greater protection to a
work of authorship contained in a collection of information, other than
a work that is itself a collection of information, than is available to
that work under any other chapter of this title.
``(d) Antitrust.--Nothing in this chapter shall limit in any way
the constraints on the manner in which products and services may be
provided to the public that are imposed by Federal and State antitrust
laws, including those regarding single suppliers of products and
services.
``(e) Licensing.--Nothing in this chapter shall restrict the rights
of parties freely to enter into licenses or any other contracts with
respect to the use of collections of information.
``(f) Communications Act of 1934.--Nothing in this chapter shall
affect the operation of the provisions of the Communications Act of
1934 (47 U.S.C. 151 et seq.), or shall restrict any person from
extracting or using subscriber list information, as such term is
defined in section 222(f)(3) of the Communications Act of 1934 (47
U.S.C. 222(f)(3)), for the purpose of publishing telephone directories
in any format.
``(g) Securities and Commodities Market Information.--
``(1) Federal agencies and acts.--Nothing in this Act shall
affect:
``(A) the operation of the provisions of the
Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.)
or the Commodity Exchange Act (7 U.S.C. 1 et seq.);
``(B) the jurisdiction or authority of the
Securities and Exchange Commission and the Commodity
Futures Trading Commission; or
``(C) the functions and operations of self-
regulatory organizations and securities information
processors under the provisions of the Securities
Exchange Act of 1934 and the rules and regulations
thereunder, including making market information
available pursuant to the provisions of that Act and
the rules and regulations promulgated thereunder.
``(2) Prohibition.--Notwithstanding any provision in
subsection (a), (b), (c), (d), or (f) of section 1303, nothing
in this chapter shall permit the extraction, use, resale, or
other disposition of real-time market information except as the
Securities Exchange Act of 1934, the Commodity Exchange Act,
and the rules and regulations thereunder may otherwise provide.
In addition, nothing in subsection (e) of section 1303 shall be
construed to permit any person to extract or use real-time
market information in a manner that constitutes a market
substitute for a real-time market information service
(including the real-time systematic updating of or display of a
substantial part of market information) provided on a real-time
basis.
``(3) Definition.--As used in this subsection, the term
`market information' means information relating to quotations
and transactions that is collected, processed, distributed, or
published pursuant to the provisions of the Securities Exchange
Act of 1934 or by a contract market that is designated by the
Commodity Futures Trading Commission pursuant to the Commodity
Exchange Act and the rules and regulations thereunder.
``Sec. 1306. Civil remedies
``(a) Civil Actions.--Any person who is injured by a violation of
section 1302 may bring a civil action for such a violation in an
appropriate United States district court without regard to the amount
in controversy, except that any action against a State governmental
entity may be brought in any court that has jurisdiction over claims
against such entity.
``(b) Temporary and Permanent Injunctions.--Any court having
jurisdiction of a civil action under this section shall have the power
to grant temporary and permanent injunctions, according to the
principles of equity and upon such terms as the court may deem
reasonable, to prevent a violation of section 1302. Any such injunction
may be served anywhere in the United States on the person enjoined, and
may be enforced by proceedings in contempt or otherwise by any United
States district court having jurisdiction over that person.
``(c) Impoundment.--At any time while an action under this section
is pending, the court may order the impounding, on such terms as it
deems reasonable, of all copies of contents of a collection of
information extracted or used in violation of section 1302, and of all
masters, tapes, disks, diskettes, or other articles by means of which
such copies may be reproduced. The court may, as part of a final
judgment or decree finding a violation of section 1302, order the
remedial modification or destruction of all copies of contents of a
collection of information extracted or used in violation of section
1302, and of all masters, tapes, disks, diskettes, or other articles by
means of which such copies may be reproduced.
``(d) Monetary Relief.--When a violation of section 1302 has been
established in any civil action arising under this section, the
plaintiff shall be entitled to recover any damages sustained by the
plaintiff and defendant's profits not taken into account in computing
the damages sustained by the plaintiff. The court shall assess such
profits or damages or cause the same to be assessed under its
direction. In assessing profits the plaintiff shall be required to
prove defendant's gross revenue only and the defendant shall be
required to prove all elements of cost or deduction claims. In
assessing damages the court may enter judgment, according to the
circumstances of the case, for any sum above the amount found as actual
damages, not exceeding three times such amount. The court in its
discretion may award reasonable costs and attorney's fees to the
prevailing party and shall award such costs and fees where it
determines that an action was brought under this chapter in bad faith
against a nonprofit educational, scientific, or research institution,
library, or archives, or an employee or agent of such an entity, acting
within the scope of his or her employment.
``(e) Reduction or Remission of Monetary Relief for Nonprofit
Educational, Scientific, or Research Institutions.--The court shall
reduce or remit entirely monetary relief under subsection (d) in any
case in which a defendant believed and had reasonable grounds for
believing that his or her conduct was permissible under this chapter,
if the defendant was an employee or agent of a nonprofit educational,
scientific, or research institution, library, or archives acting within
the scope of his or her employment.
``(f) Actions Against United States Government.--Subsections (b)
and (c) shall not apply to any action against the United States
Government.
``(g) Relief Against State Entities.--The relief provided under
this section shall be available against a State governmental entity to
the extent permitted by applicable law.
``Sec. 1307. Criminal offenses and penalties
``(a) Violation.--
``(1) In general.--Any person who violates section 1302
willfully, and--
``(A) does so for direct or indirect commercial
advantage or financial gain; or
``(B) causes loss or damage aggregating $10,000 or
more in any 1-year period to the person who gathered,
organized, or maintained the information concerned,
shall be punished as provided in subsection (b).
``(2) Inapplicability.--This section shall not apply to an
employee or agent of a nonprofit educational, scientific, or
research institution, library, or archives acting within the
scope of his or her employment.
``(b) Penalties.--An offense under subsection (a) shall be
punishable by a fine of not more than $250,000 or imprisonment for not
more than 5 years, or both. A second or subsequent offense under
subsection (a) shall be punishable by a fine of not more than $500,000
or imprisonment for not more than 10 years, or both.
``Sec. 1308. Limitations on actions
``(a) Criminal Proceedings.--No criminal proceeding shall be
maintained under this chapter unless it is commenced within three years
after the cause of action arises.
``(b) Civil Actions.--No civil action shall be maintained under
this chapter unless it is commenced within three years after the cause
of action arises or claim accrues.
``(c) Additional Limitation.--No criminal or civil action shall be
maintained under this chapter for the extraction or use of all or a
substantial part of a collection of information that occurs more than
15 years after the investment of resources that qualified the portion
of the collection of information for protection under this chapter that
is extracted or used.''.
SEC. 503. CONFORMING AMENDMENT.
The table of chapters for title 17, United States Code, is amended
by adding at the end the following:
``13. Misappropriation of Collections of Information........ 1301''.
SEC. 504. CONFORMING AMENDMENTS TO TITLE 28, UNITED STATES CODE.
(a) District Court Jurisdiction.--Section 1338 of title 28, United
States Code, is amended--
(1) in the section heading by inserting ``misappropriations
of collections of information,'' after ``trade-marks,''; and
(2) by adding at the end the following:
``(d) The district courts shall have original jurisdiction of any
civil action arising under chapter 13 of title 17, relating to
misappropriation of collections of information. Such jurisdiction shall
be exclusive of the courts of the States, except that any action
against a State governmental entity may be brought in any court that
has jurisdiction over claims against such entity.''.
(b) Conforming Amendment.--The item relating to section 1338 in the
table of sections for chapter 85 of title 28, United States Code, is
amended by inserting ``misappropriations of collections of
information,'' after ``trade-marks,''.
(c) Court of Federal Claims Jurisdiction.--Section 1498(e) of title
28, United States Code, is amended by inserting ``and to protections
afforded collections of information under chapter 13 of title 17''
after ``chapter 9 of title 17''.
SEC. 505. EFFECTIVE DATE.
(a) In General.--This title and the amendments made by this title
shall take effect on the date of the enactment of this Act, and shall
apply to acts committed on or after that date.
(b) Prior Acts Not Affected.--No person shall be liable under
chapter 13 of title 17, United States Code, as added by section 502 of
this Act, for the use of information lawfully extracted from a
collection of information prior to the effective date of this Act, by
that person or by that person's predecessor in interest.
TITLE VI--PROTECTION OF CERTAIN ORIGINAL DESIGNS
SEC. 601. SHORT TITLE.
This Act may be referred to as the ``Vessel Hull Design Protection
Act''.
SEC. 602. PROTECTION OF CERTAIN ORIGINAL DESIGNS.
Title 17, United States Code, is amended by adding at the end the
following new chapter:
``CHAPTER 14--PROTECTION OF ORIGINAL DESIGNS
``Sec.
``1401. Designs protected.
``1402. Designs not subject to protection.
``1403. Revisions, adaptations, and rearrangements.
``1404. Commencement of protection.
``1405. Term of protection.
``1406. Design notice.
``1407. Effect of omission of notice.
``1408. Exclusive rights.
``1409. Infringement.
``1410. Application for registration.
``1411. Benefit of earlier filing date in foreign country.
``1412. Oaths and acknowledgments.
``1413. Examination of application and issue or refusal of
registration.
``1414. Certification of registration.
``1415. Publication of announcements and indexes.
``1416. Fees.
``1417. Regulations.
``1418. Copies of records.
``1419. Correction of errors in certificates.
``1420. Ownership and transfer.
``1421. Remedy for infringement.
``1422. Injunctions.
``1423. Recovery for infringement.
``1424. Power of court over registration.
``1425. Liability for action on registration fraudulently obtained.
``1426. Penalty for false marking.
``1427. Penalty for false representation.
``1428. Enforcement by Treasury and Postal Service .
``1429. Relation to design patent law.
``1430. Common law and other rights unaffected.
``1431. Administrator; Office of the Administrator.
``1432. No retroactive effect.
``Sec. 1401. Designs protected
``(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 1402(4).
``(b) Definitions.--For the purpose of this chapter, the following
terms have the following meanings:
``(1) A design is `original' if it is the result of the
designer's creative endeavor that provides a distinguishable
variation over prior work pertaining to similar articles which
is more than merely trivial and has not been copied from
another source.
``(2) A `useful article' is a vessel hull, including a plug
or mold, which in normal use has an intrinsic utilitarian
function that is not merely to portray the appearance of the
article or to convey information. An article which normally is
part of a useful article shall be deemed to be a useful
article.
``(3) A `vessel' is a craft, especially one larger than a
rowboat, designed to navigate on water, but does not include
any such craft that exceeds 200 feet in length.
``(4) A `hull' is the frame or body of a vessel, including
the deck of a vessel, exclusive of masts, sails, yards, and
rigging.
``(5) A `plug' means a device or model used to make a mold
for the purpose of exact duplication, regardless of whether the
device or model has an intrinsic utilitarian function that is
not only to portray the appearance of the product or to convey
information.
``(6) A `mold' means a matrix or form in which a substance
for material is used, regardless of whether the matrix or form
has an intrinsic utilitarian function that is not only to
portray the appearance of the product or to convey information.
``Sec. 1402. Designs not subject to protection
``Protection under this chapter shall not be available for a design
that is--
``(1) not original;
``(2) staple or commonplace, such as a standard geometric
figure, a familiar symbol, an emblem, or a motif, or another
shape, pattern, or configuration which has become standard,
common, prevalent, or ordinary;
``(3) different from a design excluded by paragraph (2)
only in insignificant details or in elements which are variants
commonly used in the relevant trades;
``(4) dictated solely by a utilitarian function of the
article that embodies it; or
``(5) embodied in a useful article that was made public by
the designer or owner in the United States or a foreign country
more than 1 year before the date of the application for
registration under this chapter.
``Sec. 1403. 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 1402 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.
``Sec. 1404. 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 1413(a) or the date the design is first made
public as defined by section 1410(b).
``Sec. 1405. 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 1404.
``(b) Expiration.--All terms of protection provided in this section
shall run to the end of the calendar year in which they would otherwise
expire.
``(c) Termination of Rights.--Upon expiration or termination of
protection in a particular design under this chapter, all rights under
this chapter in the design shall terminate, regardless of the number of
different articles in which the design may have been used during the
term of its protection.
``Sec. 1406. Design notice
``(a) Contents of Design Notice.--(1) Whenever any design for which
protection is sought under this chapter is made public under section
1410(b), the owner of the design shall, subject to the provisions of
section 1407, mark it or have it marked legibly with a design notice
consisting of--
``(A) the words `Protected Design', the abbreviation
`Prot'd Des.', or the letter `D' with a circle, or the symbol
*D*;
``(B) the year of the date on which protection for the
design commenced; and
``(C) the name of the owner, an abbreviation by which the
name can be recognized, or a generally accepted alternative
designation of the owner.
Any distinctive identification of the owner may be used for purposes of
subparagraph (C) if it has been recorded by the Administrator before
the design marked with such identification is registered.
``(2) After registration, the registration number may be used
instead of the elements specified in subparagraphs (B) and (C) of
paragraph (1).
``(b) Location of Notice.--The design notice shall be so located
and applied as to give reasonable notice of design protection while the
useful article embodying the design is passing through its normal
channels of commerce.
``(c) Subsequent Removal of Notice.--When the owner of a design has
complied with the provisions of this section, protection under this
chapter shall not be affected by the removal, destruction, or
obliteration by others of the design notice on an article.
``Sec. 1407. Effect of omission of notice
``(a) Actions With Notice.--Except as provided in subsection (b),
the omission of the notice prescribed in section 1406 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 1406 shall prevent any recovery under section
1423 against a person who began an undertaking leading to infringement
under this chapter before receiving written notice of the design
protection. No injunction shall be issued under this chapter with
respect to such undertaking unless the owner of the design reimburses
that person for any reasonable expenditure or contractual obligation in
connection with such undertaking that was incurred before receiving
written notice of the design protection, as the court in its discretion
directs. The burden of providing written notice of design protection
shall be on the owner of the design.
``Sec. 1408. Exclusive rights
``The owner of a design protected under this chapter has the
exclusive right to--
``(1) make, have made, or import, for sale or for use in
trade, any useful article embodying that design; and
``(2) sell or distribute for sale or for use in trade any
useful article embodying that design.
``Sec. 1409. Infringement
``(a) Acts of Infringement.--Except as provided in subjection (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.
``Sec. 1410. 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 two years after the date on which the design
is first made public.
``(b) When Design Is Made Public.--A design is made public when an
existing useful article embodying the design is anywhere publicly
exhibited, publicly distributed, or offered for sale or sold to the
public by the owner of the design or with the owner's consent.
``(c) Application by Owner of Design.--Application for registration
may be made by the owner of the design.
``(d) Contents of Application.--The application for registration
shall be made to the Administrator and shall state--
``(1) the name and address of the designer or designers of
the design;
``(2) the name and address of the owner if different from
the designer;
``(3) the specific name of the useful article embodying the
design;
``(4) the date, if any, that the design was first made
public, if such date was earlier than the date of the
application;
``(5) affirmation that the design has been fixed in a
useful article; and
``(6) such other information as may be required by the
Administrator.
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 1406, the statement shall also describe the exact form and
position of the design notice.
``(f) Effect of Errors.--(1) Error in any statement or assertion as
to the utility of the useful article named in the application under
this section, the design of which is sought to be registered, shall not
affect the protection secured under this chapter.
``(2) Errors in omitting a joint designer or in naming an alleged
joint designer shall not affect the validity of the registration, or
the actual ownership or the protection of the design, unless it is
shown that the error occurred with deceptive intent.
``(g) Design Made in Scope of Employment.--In a case in which the
design was made within the regular scope of the designer's employment
and individual authorship of the design is difficult or impossible to
ascribe and the application so states, the name and address of the
employer for whom the design was made may be stated instead of that of
the individual designer.
``(h) Pictorial Representation of Design.--The application for
registration shall be accompanied by two copies of a drawing or other
pictorial representation of the useful article embodying the design,
having one or more views, adequate to show the design, in a form and
style suitable for reproduction, which shall be deemed a part of the
application.
``(i) Design in More Than One Useful Article.--If the
distinguishing elements of a design are in substantially the same form
in different useful articles, the design shall be protected as to all
such useful articles when protected as to one of them, but not more
than one registration shall be required for the design.
``(j) Application for More Than One Design.--More than one design
may be included in the same application under such conditions as may be
prescribed by the Administrator. For each design included in an
application the fee prescribed for a single design shall be paid.
``Sec. 1411. 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.
``Sec. 1412. Oaths and acknowledgments
``(a) In General.--Oaths and acknowledgments required by this
chapter--
``(1) may be made--
``(A) before any person in the United States
authorized by law to administer oaths; or
``(B) when made in a foreign country, before any
diplomatic or consular officer of the United States
authorized to administer oaths, or before any official
authorized to administer oaths in the foreign country
concerned, whose authority shall be proved by a
certificate of a diplomatic or consular officer of the
United States; and
``(2) shall be valid if they comply with the laws of the
State or country where made.
``(b) Written Declaration in Lieu of Oath.--(1) The Administrator
may by rule prescribe that any document which is to be filed under this
chapter in the Office of the Administrator and which is required by any
law, rule, or other regulation to be under oath, may be subscribed to
by a written declaration in such form as the Administrator may
prescribe, and such declaration shall be in lieu of the oath otherwise
required.
``(2) Whenever a written declaration under paragraph (1) is used,
the document containing the declaration shall state that willful false
statements are punishable by fine or imprisonment, or both, pursuant to
section 1001 of title 18, and may jeopardize the validity of the
application or document or a registration resulting therefrom.
``Sec. 1413. Examination of application and issue or refusal of
registration
``(a) Determination of Registrability of Design; Registration.--
Upon the filing of an application for registration in proper form under
section 1410, and upon payment of the fee prescribed under section
1416, 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.
``Sec. 1414. Certification of registration
``Certificates of registration shall be issued in the name of the
United States under the seal of the Office of the Administrator and
shall be recorded in the official records of the Office. The
certificate shall state the name of the useful article, the date of
filing of the application, the date of registration, and the date the
design was made public, if earlier than the date of filing of the
application, and shall contain a reproduction of the drawing or other
pictorial representation of the design. If a description of the salient
features of the design appears in the application, the description
shall also appear in the certificate. A certificate of registration
shall be admitted in any court as prima facie evidence of the facts
stated in the certificate.
``Sec. 1415. Publication of announcements and indexes
``(a) Publications of the Administrator.--The Administrator shall
publish lists and indexes of registered designs and cancellations of
designs and may also publish the drawings or other pictorial
representations of registered designs for sale or other distribution.
``(b) File of Representatives of Registered Designs.--The
Administrator shall establish and maintain a file of the drawings or
other pictorial representations of registered designs. The file shall
be available for use by the public under such conditions as the
Administrator may prescribe.
``Sec. 1416. Fees
``The Administrator shall by regulation set reasonable fees for the
filing of applications to register designs under this chapter and for
other services relating to the administration of this chapter, taking
into consideration the cost of providing these services and the benefit
of a public record.
``Sec. 1417. Regulations
``The Administrator may establish regulations for the
administration of this chapter.
``Sec. 1418. Copies of records
``Upon payment of the prescribed fee, any person may obtain a
certified copy of any official record of the Office of the
Administrator that relates to this chapter. That copy shall be
admissible in evidence with the same effect as the original.
``Sec. 1419. Correction of errors in certificates
``The Administrator may, by a certificate of correction under seal,
correct any error in a registration incurred through the fault of the
Office, or, upon payment of the required fee, any error of a clerical
or typographical nature occurring in good faith but not through the
fault of the Office. Such registration, together with the certificate,
shall thereafter have the same effect as if it had been originally
issued in such corrected form.
``Sec. 1420. Ownership and transfer
``(a) Property Right in Design.--The property right in a design
subject to protection under this chapter shall vest in the designer,
the legal representatives of a deceased designer or of one under legal
incapacity, the employer for whom the designer created the design in
the case of a design made within the regular scope of the designer's
employment, or a person to whom the rights of the designer or of such
employer have been transferred. The person in whom the property right
is vested shall be considered the owner of the design.
``(b) Transfer of Property Right.--The property right in a
registered design, or a design for which an application for
registration has been or may be filed, may be assigned, granted,
conveyed, or mortgaged by an instrument in writing, signed by the
owner, or may be bequeathed by will.
``(c) Oath or Acknowledgement of Transfer.--An oath or
acknowledgment under section 1412 shall be prima facie evidence of the
execution of an assignment, grant, conveyance, or mortgage under
subsection (b).
``(d) Recordation of Transfer.--An assignment, grant, conveyance,
or mortgage under subsection (b) shall be void as against any
subsequent purchaser or mortgagee for a valuable consideration, unless
it is recorded in the Office of the Administrator within 3 months after
its date of execution or before the date of such subsequent purchase or
mortgage.
``Sec. 1421. 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 1413(c).
Sec. 1422. Injunctions
``(a) In General.--A court having jurisdiction over actions under
this chapter may grant injunctions in accordance with the principles of
equity to prevent infringement of a design under this chapter,
including, in its discretion, prompt relief by temporary restraining
orders and preliminary injunctions.
``(b) Damages for Injunctive Relief Wrongfully Obtained.--A seller
or distributor who suffers damage by reason of injunctive relief
wrongfully obtained under this section has a cause of action against
the applicant for such injunctive relief and may recover such relief as
may be appropriate, including damages for lost profits, cost of
materials, loss of good will, and punitive damages in instances where
the injunctive relief was sought in bad faith, and, unless the court
finds extenuating circumstances, reasonable attorney's fees.
``Sec. 1423. 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.
``Sec. 1424. Power of court over registration
``In any action involving the protection of a design under this
chapter, the court, when appropriate, may order registration of a
design under this chapter or the cancellation of such a registration.
Any such order shall be certified by the court to the Administrator,
who shall make an appropriate entry upon the record.
``Sec. 1425. Liability for action on registration fraudulently obtained
``Any person who brings an action for infringement knowing that
registration of the design was obtained by a false or fraudulent
representation materially affecting the rights under this chapter,
shall be liable in the sum of $10,000, or such part of that amount as
the court may determine. That amount shall be to compensate the
defendant and shall be charged against the plaintiff and paid to the
defendant, in addition to such costs and attorney's fees of the
defendant as may be assessed by the court.
``Sec. 1426. 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
1406, or any other words or symbols importing that the design is
protected under this chapter, knowing that the design is not so
protected, shall pay a civil fine of not more than $500 for each such
offense.
``(b) Suit by Private Persons.--Any person may sue for the penalty
established by subsection (a), in which event one-half of the penalty
shall be awarded to the person suing and the remainder shall be awarded
to the United States.
``Sec. 1427. 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.
``Sec. 1428. 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 1408 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 1408 are subject to seizure and
forfeiture in the same manner as property imported in violation of the
customs laws. Any such forfeited articles shall be destroyed as
directed by the Secretary of the Treasury or the court, as the case may
be, except that the articles may be returned to the country of export
whenever it is shown to the satisfaction of the Secretary of the
Treasury that the importer had no reasonable grounds for believing that
his or her acts constituted a violation of the law.
``Sec. 1429. Relation to design patent law
``The issuance of a design patent under title 35 for an original
design for an article of manufacture shall terminate any protection of
the original design under this chapter.
``Sec. 1430. Common law and other rights unaffected
``Nothing in this chapter shall annul or limit--
``(1) common law or other rights or remedies, if any,
available to or held by any person with respect to a design
which has not been registered under this chapter; or
``(2) any right under the trademark laws or any right
protected against unfair competition.
``Sec. 1431. Administrator; Office of the Administrator
``In this chapter, the `Administrator' is the Register of
Copyrights, and the `Office of the Administrator' and the `Office'
refer to the Copyright Office of the Library of Congress.
``Sec. 1432. No retroactive effect
``Protection under this chapter shall not be available for any
design that has been made public under section 1410(b) before the
effective date of this chapter.''.
SEC. 603. CONFORMING AMENDMENTS.
(a) Table of Chapters.--The table of chapters for title 17, United
States Code, is amended by adding at the end the following:
``14. Protection of Original Designs........................ 1401''.
(b) Jurisdiction of District Courts Over Design Actions.--(1)
Section 1338(c) of title 28, United States Code, is amended by
inserting ``, and to exclusive rights in designs under chapter 14 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.--Section 1400(a) of title
28, United States Code, is amended by inserting ``or designs'' after
``mask works''.
(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 14 of title 17,'' after ``title 17''.
SEC. 604. EFFECTIVE DATE.
The amendments made by sections 602 and 603 shall take effect one
year after the date of the enactment of this Act.
Passed the House of Representatives August 4, 1998.
Attest:
Clerk.