[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4894 Introduced in House (IH)]
103d CONGRESS
2d Session
H. R. 4894
To prohibit unauthorized fixation of sound recordings and music videos
of live musical performances and provide copyright protection in
restored works, and for certain other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
August 3, 1994
Mr. Hughes introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To prohibit unauthorized fixation of sound recordings and music videos
of live musical performances and provide copyright protection in
restored works, and for certain 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 ``General Agreement on Tariffs and
Trade Copyright Act of 1994''.
SEC. 2. RENTAL RIGHTS IN COMPUTER PROGRAMS.
Section 804(c) of Public Law 101-650, 104 Stat. 5136, is amended by
striking the first sentence.
TITLE I--FEDERAL ANTI-BOOTLEG PROVISIONS
SEC. 101. SHORT TITLE.
This title may be cited as the ``Federal Anti-Bootleg Act of
1994''.
SEC. 102. UNAUTHORIZED FIXATION OF AND TRAFFICKING IN SOUND RECORDINGS
AND MUSIC VIDEOS OF LIVE MUSICAL PERFORMANCES.
Title 18, United States Code, is amended by adding the following:
``Sec. 2319A. Unauthorized fixation of and trafficking in sound
recordings and music videos of live musical performances
``(a) Whoever, without the consent of a featured performer,
knowingly and for purposes of commercial advantage or private financial
gain--
``(1) fixes the sounds or sounds and images of a live
musical performance in a copy or phonorecord, or reproduces
phonorecords or copies of such a performance from an
unauthorized fixation;
``(2) transmits or otherwise communicates to the public the
sounds or sounds and images of a live musical performance; or
``(3) distributes or offers to distribute, sells or offers
to sell, rents or offers to rent, or traffics any copy or
phonorecord fixed without the consent of a featured performer,
regardless of whether the fixations occurred in the United
States;
shall, upon judgment of conviction, be fined not more than $250,000 or
imprisoned for not more than 5 years, or both.
``(b) When a person is convicted of a violation of subsection (a),
the court shall in its judgment of conviction order the forfeiture and
destruction of any copies of phonorecords created in violation thereof,
as well as any plates, molds, matrices, masters, tapes, and film
negatives by means of which such copies or phonorecords may be made.
The court may also, in its discretion, order the forfeiture and
destruction of any other equipment by means of which such copies or
phonorecords may be reproduced, taking into account the nature, scope,
and proportionality of the use of the equipment in the offense.
``(c) If copies or phonorecords of sounds or sounds and images of a
live musical performance are fixed outside of the United States without
the consent of a featured performer, such copies or phonorecords are
subject to seizure and forfeiture in the same manner as property
imported in violation of the customs revenue laws. The Secretary of the
Treasury and the United States Postal Service shall, separately or
jointly, make regulations for the enforcement of the provisions of this
subsection, including regulations by which any featured performer may,
upon payment of a specified fee, be entitled to notification by the
United States Customs Service of the importation of phonorecords or
copies that appear to consist of unauthorized fixations of the sounds
or sounds and images of a live musical performance.
``(d) As used in this section--
``(1) The terms `copy', `fixed', `musical work',
`phonorecord', `reproduce', `sound recordings', and `transmit'
have the same meanings given such terms in section 101 of title
17, United States Code.
``(2) The term `traffic' means transport, transfer, or
otherwise dispose of, to another, as consideration for anything
of value, or make or obtain control of with intent to
transport, transfer, or dispose of.
``(e) This section shall apply to the following acts that occur 1
year after the entry into force of the World Trade Organization
Agreement--
``(1) live musical performances fixed without the consent
of a featured performer;
``(2) distributions, offers to sell, sales, offers to sell,
rentals, offers to rent, or trafficking in any copy or
phonorecord fixed without the consent of a featured performer,
regardless of when the fixation occurred; and
``(3) transmissions or other communications to the public
of sounds or sounds and images of a live musical performance
fixed without consent of a featured performer.''.
TITLE II--COPYRIGHT IN RESTORED WORKS
SEC. 201. SHORT TITLE.
This title may be cited as the ``Berne and GATT Retroactivity Act
of 1994''.
SEC. 202. RESTORED WORKS.
(a) In General.--Section 104A of title 17, United States Code, is
amended to read as follows:
``SEC. 104A. COPYRIGHT IN RESTORED WORKS.
``(a) Automatic Protection and Term.--
``(1) Term.--Copyright subsists, in accordance with this
section, in restored works, and vests automatically on the date
of restoration.
``(A) Copyright in restored works published or
registered with the Copyright Office before January 1,
1978, shall endure for a term of 75 years from the date
of first publication or registration as the case may
be.
``(B) Copyright in works created on or after
January 1, 1978, shall endure for the term of
protection established in section 302.
``(2) Exception.--No work in which the copyright was ever
owned or administered by the Alien Property Custodian and in
which the restored copyright would be owned by a government or
instrumentality thereof, shall be a restored work.
``(b) Ownership of Restored Copyright.--A restored work vests
initially in the author of the work as determined according to the law
of its source country.
``(c) Filing of Notice of Intent to Enforce Restored Copyright
Against Reliance Parties.--Any person owning copyright in a restored
work or an exclusive right therein may file with the Copyright Office a
notice of intent to enforce that copyright against reliance parties.
Acceptance of a notice by the Copyright Office shall not create a
presumption of the validity of any of the facts stated therein.
``(d) Remedies for Infringement of Restored Copyrights.--
``(1) Enforcement of copyright in restored works in the
absence of a reliance party.--As against any party who is not a
reliance party, the remedies provided in chapter 5 of this
title shall be available immediately upon restoration with
respect to any infringing act commenced on or after the date of
restoration.
``(2) Enforcement of copyright in restored works as against
reliance parties.--As against a reliance party, subject to
paragraph (3), the remedies provided in chapter 5 of this title
shall be available upon restoration--
``(A)(i) if the owner of the restored work files
with the Copyright Office, between the date of
restoration and 24 months thereafter, a notice of
intent to enforce a restored work; and
``(ii) the act of infringement commenced on or
after 12 months from the date of publication of the
notice in the Federal Register;
``(B)(i) if the owner of the copyright in the
restored work or an exclusive right therein serves upon
that reliance party a notice of intent to enforce a
restored work; and
``(ii) the act of infringement commenced prior to
receipt of the notice;
``(C) if copies of a restored work are made after
publication of the notice of intent in the Federal
Register; or
``(D) in the case of a particular reliance party,
after receipt of a notice of intent to enforce the
restored work.
``(3) Commencement of infringement for reliance parties.--
For purposes of section 412, in the case of reliance parties,
infringement shall be deemed to have commenced prior to
registration when acts which would have constituted
infringement were committed prior to the date of the
restoration and continued after such date.
``(e) Notices of Intent to Enforce a Restored Copyright.--
``(1) Notices of intent filed with the copyright office.--
(A)(i) Notices of intent filed with the Copyright Office to
enforce a restored work shall be signed by the owner of the
copyright or the owner of the exclusive right filing the notice
and shall identify the title of the restored work. If the
notice is signed by an agent, the agency relationship must have
been constituted in a writing signed by the owner of the
restored work or the owner of the exclusive right therein prior
to the filing of the notice. The notice may contain any other
information specified in regulations established by the
Register of Copyrights pursuant to this section.
``(ii) If a restored work has no formal title, it shall be
described in the notice of intent in detail sufficient to aid
in its identification. Minor errors or omissions may be
corrected after the period established in subsection (d)(2)(A)
and shall be published by the Register of Copyrights in the
Federal Register pursuant to subparagraph (B).
``(B)(i) The Register of Copyrights shall publish in the
Federal Register, commencing not later than 4 months after the
date of the Agreement on Trade-Related Aspects of Intellectual
Property of the General Agreement on Tariffs and Trade becomes
effective with respect to the United States and every 4 months
thereafter, lists identifying restored works and the ownership
thereof if a notice of intent to enforce a restored work has
been filed.
``(ii) Not less than 1 list containing all notices of
intent to enforce a restored work filed with the Copyright
Office shall be maintained in the Public Information Office of
the Copyright Office and shall be available for inspection and
copying during regular business hours pursuant to sections 705
and 708.
``(C) The Register of Copyrights is authorized to fix
reasonable fees based on the costs of receipt, processing,
recording, and publication of notices of intent to enforce a
restored work.
``(D)(i) Not later than 30 days after the date the
Agreement on Trade-Related Aspects of Intellectual Property of
the General Agreement on Tariffs and Trade becomes effective
with respect to the United States, the Copyright Office shall
establish and publish in the Federal Register regulations
governing the filing under this subsection of notices of intent
to enforce a restored work.
``(ii) Such regulations shall permit owners of restored
works to simultaneously obtain registration for a claim of
copyright in the restored work.
``(2) Notices of intent served on a reliance party.--
``(A) Notices of the intent to enforce a restored
work may be served by the copyright owner of the
restored work or by the owner of any exclusive right
therein on a reliance party.
``(B) Such notice shall identify the restored work
and the use to which the owner objects and shall
include an address and telephone number at which the
reliance party may contact the owner.
``(f) Immunity From Warranty and Related Liability.--An individual
who warranted, promised, or guaranteed that a work that such individual
created did not violate 1 of the exclusive rights granted in section
106, shall not be liable for legal, equitable, arbitral, or
administrative relief if the warranty, promise, or guarantee is
breached by virtue of the restoration of copyright under this section.
``(g) Definitions.--For purposes of this section and section
109(a):
``(1) The term `date of adherence' means the earlier of the
dates upon which a foreign country that is not a member of the
Berne Union or the World Trade Organization, as of the date of
the enactment of the General Agreement on Tariffs and Trade
Intellectual Property Act of 1994, becomes a member of the
Berne Union or the World Trade Organization.
``(2) The term `date of restoration' of a restored
copyright means--
``(A) the date the Agreement on Trade-Related
Aspects of Intellectual Property of the General
Agreement on Tariffs and Trade becomes effective with
respect to the United States, if the work is a restored
work on such date; or
``(B) the date of adherence.
``(3) The term `eligible country' means a country, other
than the United States, which, on the date that copyright is
restored under the provisions of this section, has joined the
World Trade Organization or adhered to the Berne Convention for
the Protection of Literary and Artistic Works.
``(4) The term `reliance party' means any person who, prior
to the date the Agreement on Trade-Related Aspects of
Intellectual Property of the General Agreement on Tariffs and
Trade becomes effective with respect to the United States, or
who, prior to the date of adherence of a source country which
became an eligible country after the date of the enactment of
such Act--
``(A) engaged in acts which would have violated
section 106 if the restored work had been subject to
copyright protection, and who, after the date the
Agreement on Trade-Related Aspects of Intellectual
Property of the General Agreement on Tariffs and Trade
becomes effective with respect to the United States, or
after the date of adherence, continued to engage in
such acts; or
``(B) made substantial monetary investments in a
creation of a work which incorporates material portions
of a restored work.
``(5) The term `restored work' means an original work of
authorship that--
``(A) is protected under subsection (a);
``(B) is not in the public domain in its source
country;
``(C) is in the public domain in the United States
due to--
``(i) noncompliance with formalities
imposed at any time by United States copyright
law, including failure of renewal, lack of
proper notice, or failure to comply with any
manufacturing requirement; or
``(ii) lack of subject matter protection in
the case of sound recordings fixed before
February 15, 1972; and
``(D) has not less than 1 author who was, at the
time the work was created, a national or domiciliary of
an eligible country, and if published, was first
published in an eligible country but not published in
the United States during the 30-day period following
publication in such eligible country.
``(6) The term `source country' of a restored work means--
``(A) a country other than the United States;
``(B) in the case of an unpublished work--
``(i) the eligible country in which the
author is a national or domiciliary, or, if a
restored work has more than 1 author, the
majority of foreign authors are nationals or
domiciliaries of such eligible countries; or
``(ii) if the majority of authors are not
foreign, the source country shall be the
country, other than the United States, which
has the most significant contacts with the
work; and
``(C) in the case of a published work, the eligible
country in which the work is first published, or if the
restored work is published on the same day in 2 or more
eligible countries, the source country shall be the
country, other than the United States, which has the
most significant contacts with the work.''.
(b) Limitation.--Section 109(a) of title 17, United States Code, is
amended by adding at the end the following:
``(e) the sale or other disposition without the authorization of
the owner of a restored work of copies or phonorecords manufactured
before the date of restoration of works in which copyright has been
restored under section 104A may be sold or otherwise disposed of only
during the period specified in section 104A(d)(3), and after such
period, only as part of a sale or disposition of not more than 1 copy
or phonorecord at a time.''.
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HR 4894 IH----2