Calendar No

Calendar No. 40 NOTE: THE HOUSE COUNTERPART BILL, H.R. 672, WAS

ENACTED (P.L. 105-80).

105th CONGRESS

1st Session

S. 506

A BILL

To clarify certain copyright provisions, and for other purposes.

April 17, 1997

Reported without amendment

S 506 RS

Calendar No. 40

105th CONGRESS

1st Session

S. 506

To clarify certain copyright provisions, and for other purposes.

IN THE SENATE OF THE UNITED STATES

March 20, 1997

Mr. HATCH introduced the following bill; which was read twice and referred to

the Committee on the Judiciary

April 17, 1997

Reported by Mr. HATCH, without amendment

A BILL

To clarify certain copyright provisions, 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 `Copyright Clarifications Act of 1997'.

SEC. 2. SATELLITE HOME VIEWER ACT OF 1994.

The Satellite Home Viewer Act of 1994 (Public Law 103-369) is amended as

follows:

(1) Section 2(3)(A) is amended to read as follows:

`(A) in clause (i) by striking `12 cents' and inserting `17.5 cents

per subscriber in the case of superstations that as retransmitted by

the satellite carrier include any program which, if delivered by any

cable system in the United States, would be subject to the

syndicated exclusivity rules of the Federal Communications

Commission, and 14 cents per subscriber in the case of superstations

that are syndex-proof as defined in section 258.2 of title 37, Code

of Federal Regulations'; and'.

(2) Section 2(4) is amended to read as follows:

`(4) Subsection (c) is amended--

`(A) in paragraph (1)--

`(i) by striking `until December 31, 1992,';

`(ii) by striking `(2), (3) or (4)' and inserting `(2) or (3)';

and

`(iii) by striking the second sentence;

`(B) in paragraph (2)--

`(i) in subparagraph (A) by striking `July 1, 1991' and

inserting `July 1, 1996'; and

`(ii) in subparagraph (D) by striking `December 31, 1994' and

inserting `December 31, 1999, or in accordance with the terms of

the agreement, whichever is later'; and

`(C) in paragraph (3)--

`(i) in subparagraph (A) by striking `December 31, 1991' and

inserting `January 1, 1997';

`(ii) by amending subparagraph (B) to read as follows:

`(B) ESTABLISHMENT OF ROYALTY FEES- In determining royalty fees

under this paragraph, the copyright arbitration royalty panel

appointed under chapter 8 shall establish fees for the

retransmission of network stations and superstations that most

clearly represent the fair market value of secondary transmissions.

In determining the fair market value, the panel shall base its

decision on economic, competitive, and programming information

presented by the parties, including--

`(i) the competitive environment in which such programming is

distributed, the cost of similar signals in similar private and

compulsory license marketplaces, and any special features and

conditions of the retransmission marketplace;

`(ii) the economic impact of such fees on copyright owners and

satellite carriers; and

`(iii) the impact on the continued availability of secondary

transmissions to the public.'; and

`(iii) in subparagraph (C), by inserting `or July 1, 1997,

whichever is later' after `section 802(g)'.'.

(3) Section 2(5)(A) is amended to read as follows:

`(A) in paragraph (5)(C) by striking `the date of the enactment of

the Satellite Home Viewer Act of 1988' and inserting `November 16,

1988'; and'.

SEC. 3. COPYRIGHT IN RESTORED WORKS.

Section 104A of title 17, United States Code, is amended as follows:

(1) Subsection (d)(3)(A) is amended to read as follows:

`(3) EXISTING DERIVATIVE WORKS- (A) In the case of a derivative work

that is based upon a restored work and is created--

`(i) before the date of the enactment of the Uruguay Round

Agreements Act, if the source country of the restored work is an

eligible country on such date, or

`(ii) before the date on which the source country of the restored

work becomes an eligible country, if that country is not an eligible

country on such date of enactment,

a reliance party may continue to exploit that derivative work for the

duration of the restored copyright if the reliance party pays to the

owner of the restored copyright reasonable compensation for conduct

which would be subject to a remedy for infringement but for the

provisions of this paragraph.'.

(2) Subsection (e)(1)(B)(ii) is amended by striking the last sentence.

(3) Subsection (h)(2) is amended to read as follows:

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

`(A) January 1, 1996, if the source country of the restored work is

a nation adhering to the Berne Convention or a WTO member country on

such date; or

`(B) the date of adherence or proclamation, in the case of any other

source country of the restored work.'.

(4) Subsection (h)(3) is amended 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 member of the Berne Convention; or

`(C) after such date of enactment becomes subject to a proclamation

under subsection (g).

For purposes of this paragraph, a nation that is a member of the Berne

Convention on the date of the enactment of the Uruguay Round Agreements

Act shall be construed to become an eligible country on such date of

enactment.'.

SEC. 4. LICENSES FOR NONEXEMPT SUBSCRIPTION TRANSMISSIONS.

Section 114(f) of title 17, United States Code, is amended--

(1) in paragraph (1), by inserting `, or, if a copyright arbitration

royalty panel is convened, ending 30 days after the Librarian issues and

publishes in the Federal Register an order adopting the determination of

the copyright arbitration royalty panel or an order setting the terms

and rates (if the Librarian rejects the panel's determination)' after

`December 31, 2000'; and

(2) in paragraph (2), by striking `and publish in the Federal Register'.

SEC. 5. ROYALTY PAYABLE UNDER COMPULSORY LICENSE.

Section 115(c)(3)(D) of title 17, United States Code, is amended by striking

`and publish in the Federal Register'.

SEC. 6. NEGOTIATED LICENSE FOR JUKEBOXES.

Section 116 of title 17, United States Code, is amended--

(1) by amending subsection (b)(2) to read as follows:

`(2) ARBITRATION- Parties not subject to such a negotiation may

determine, by arbitration in accordance with the provisions of chapter

8, the terms and rates and the division of fees described in paragraph

(1).'; and

(2) by adding at the end the following new subsection:

`(d) DEFINITIONS- As used in this section, the following terms mean the

following:

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

`(A) is employed solely for the performance of nondramatic musical

works by means of phonorecords upon being activated by the insertion

of coins, currency, tokens, or other monetary units or their

equivalent;

`(B) is located in an establishment making no direct or indirect

charge for admission;

`(C) is accompanied by a list which is comprised of the titles of

all the musical works available for performance on it, and is

affixed to the phonorecord player or posted in the establishment in

a prominent position where it can be readily examined by the public;

and

`(D) affords a choice of works available for performance and permits

the choice to be made by the patrons of the establishment in which

it is located.

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

`(A) owns a coin-operated phonorecord player;

`(B) has the power to make a coin-operated phonorecord player

available for placement in an establishment for purposes of public

performance; or

`(C) has the power to exercise primary control over the selection of

the musical works made available for public performance on a

coin-operated phonorecord player.'.

SEC. 7. REGISTRATION AND INFRINGEMENT ACTIONS.

Section 411(b)(1) of title 17, United States Code, is amended to read as

follows:

`(1) serves notice upon the infringer, not less than 48 hours before

such fixation, identifying the work and the specific time and source of

its first transmission, and declaring an intention to secure copyright

in the work; and'.

SEC. 8. COPYRIGHT OFFICE FEES.

(a) FEE INCREASES- Section 708(b) of title 17, United States Code, is

amended to read as follows:

`(b) In calendar year 1997 and in any subsequent calendar year, the Register

of Copyrights, by regulation, may increase the fees specified in subsection

(a) in the following manner:

`(1) The Register shall conduct a study of the costs incurred by the

documents, and the provision of services. The study shall also consider

the timing of any increase in fees and the authority to use such fees

consistent with the budget.

`(2) The Register may, on the basis of the study under paragraph (1),

and subject to paragraph (5), increase fees to not more than that

necessary to cover the reasonable costs incurred by the Copyright Office

for the services described in paragraph (1), plus a reasonable inflation

adjustment to account for any estimated increase in costs.

`(3) Any newly established fee under paragraph (2) shall be rounded off

to the nearest dollar, or for a fee less than $12, rounded off to the

nearest 50 cents.

`(4) The fees established under this subsection shall be fair and

equitable and give due consideration to the objectives of the copyright

system.

`(5) If the Register determines under paragraph (2) that fees should be

increased, the Register shall prepare a proposed fee schedule and submit

the schedule with the accompanying economic analysis to the Congress.

The fees proposed by the Register may be instituted after the end of 120

days after the schedule is submitted to the Congress unless, within that

120-day period, a law is enacted stating in substance that the Congress

does not approve the schedule.'.

(b) DEPOSIT OF FEES- Section 708(d) of such title is amended to read as

follows:

`(d)(1) Except as provided in paragraph (2), all fees received under this

section shall be deposited by the Register of Copyrights in the Treasury of

the United States and shall be credited to the appropriations for necessary

expenses of the Copyright Office. Such fees that are collected shall remain

available until expended. The Register may, in accordance with regulations

that he or she shall prescribe, refund any sum paid by mistake or in excess

of the fee required by this section.

`(2) In the case of fees deposited against future services, the Register of

Copyrights shall request the Secretary of the Treasury to invest in

interest-bearing securities in the United States Treasury any portion of the

fees that, as determined by the Register, is not required to meet current

deposit account demands. Funds from such portion of fees shall be invested

in securities that permit funds to be available to the Copyright Office at

all times if they are determined to be necessary to meet current deposit

account demands. Such investments shall be in public debt securities with

maturities suitable to the needs of the Copyright Office, as determined by

the Register of Copyrights, and bearing interest at rates determined by the

Secretary of the Treasury, taking into consideration current market yields

on outstanding marketable obligations of the United States of comparable

maturities.

`(3) The income on such investments shall be deposited in the Treasury of

the United States and shall be credited to the appropriations for necessary

expenses of the Copyright Office.'.

SEC. 9. COPYRIGHT ARBITRATION ROYALTY PANELS.

(a) ESTABLISHMENT AND PURPOSE- Section 801 of title 17, United States Code,

is amended--

(1) in subsection (b)(1) by striking `and 116' in the first sentence and

inserting `116, and 119';

(2) in subsection (c) by inserting after `panel' at the end of the

sentence the following:

`, including--

`(1) authorizing the distribution of those royalty fees collected under

sections 111, 119, and

1005 that the Librarian has found are not subject to controversy; and

`(2) accepting or rejecting royalty claims filed under sections 111,

119, and 1007 on the basis of timeliness or the failure to establish the

basis for a claim'; and

(3) by amending subsection (d) to read as follows:

`(d) SUPPORT AND REIMBURSEMENT OF ARBITRATION PANELS- The Librarian of

Congress, upon the recommendation of the Register of Copyrights, shall

provide the copyright arbitration royalty panels with the necessary

administrative services related to proceedings under this chapter, and shall

reimburse the arbitrators presiding in distribution proceedings at such

intervals and in such manner as the Librarian shall provide by regulation.

Each such arbitrator is an independent contractor acting on behalf of the

United States, and shall be hired pursuant to a signed agreement between the

Library of Congress and the arbitrator. Payments to the arbitrators shall be

considered costs incurred by the Library of Congress and the Copyright

Office for purposes of section 802(h)(1).'.

(b) PROCEEDINGS- Section 802 of title 17, United States Code, is amended--

(1) in subsection (c) by striking the last sentence; and

(2) in subsection (h) by amending paragraph (1) to read as follows:

`(1) DEDUCTION OF COSTS OF LIBRARY OF CONGRESS AND COPYRIGHT OFFICE FROM

ROYALTY FEES- The Librarian of Congress and the Register of Copyrights

may, to the extent not otherwise provided under this title, deduct from

royalty fees deposited or collected under this title the reasonable

costs incurred by the Library of Congress and the Copyright Office under

this chapter. Such deduction may be made before the fees are distributed

to any copyright claimants. In addition, all funds made available by an

appropriations Act as offsetting collections and available for

deductions under this subsection shall remain available until expended.

In ratemaking proceedings, the Librarian of Congress and the Copyright

Office may assess their reasonable costs directly to the parties to the

most recent relevant arbitration proceeding, 50 percent of the costs to

the parties who would receive royalties from the royalty rate adopted in

the proceeding and 50 percent of the costs to the parties who would pay

the royalty rate so adopted.'.

SEC. 10. DIGITAL AUDIO RECORDING DEVICES AND MEDIA.

Section 1007(b) of title 17, United States Code, is amended by striking

`Within 30 days after' in the first sentence and inserting `After'.

SEC. 11. CONFORMING AMENDMENT.

Section 4 of the Digital Performance Right in Sound Recordings Act of 1995

(Public Law 104-39) is amended by redesignating paragraph (5) as paragraph

(4).

SEC. 12. MISCELLANEOUS TECHNICAL AMENDMENTS.

(a) AMENDMENTS TO TITLE 17, UNITED STATES CODE- Title 17, United States

Code, is amended as follows:

(1) The table of chapters at the beginning of title 17, United States

Code, is amended--

(A) in the item relating to chapter 6, by striking `Requirement' and

inserting `Requirements';

(B) in the item relating to chapter 8, by striking `Royalty

Tribunal' and inserting `Arbitration Royalty Panels';

chip products' and inserting `Semiconductor Chip Products'; and

(D) by inserting after the item relating to chapter 9 the following:

1001'.

(2) The item relating to section 117 in the table of sections at the

beginning of chapter 1 is amended to read as follows:

`117. Limitations on exclusive rights: Computer programs.'.

(3) Section 101 is amended in the definition of to perform or display a

work `publicly' by striking `processs' and inserting `process'.

(4) Section 108(e) is amended by striking `pair' and inserting `fair'.

(5) Section 109(a)(2)(B) is amended by striking `Copyright' and

inserting `Copyrights'.

(6) Section 110 is amended--

(A) in paragraph (8) by striking the period at the end and inserting

a semicolon;

(B) in paragraph (9) by striking the period at the end and inserting

`; and'; and

(7) Section 115(c)(3)(E) is amended--

(A) in clause (i) by striking `section 106(1) and (3)' each place it

appears and inserting `paragraphs (1) and (3) of section 106'; and

(B) in clause (ii)(II) by striking `sections 106(1) and 106(3)' and

inserting `paragraphs (1) and (3) of section 106'.

(8) Section 119(c)(1) is amended by striking `unless until' and

inserting `unless'.

(9) Section 304(c) is amended in the matter preceding paragraph (1) by

striking `the subsection (a)(1)(C)' and inserting `subsection

(a)(1)(C)'.

(10) Section 405(b) is amended by striking `condition or' and inserting

`condition for'.

(11) Section 407(d)(2) is amended by striking `cost of' and inserting

`cost to'.

(12) The item relating to section 504 in the table of sections at the

beginning of chapter 5 is amended by striking `Damage' and inserting

`Damages'.

(13) Section 504(c)(2) is amended by striking `court it' and inserting

`court in'.

(14) Section 509(b) is amended by striking `merchandise; and baggage'

and inserting `merchandise, and baggage'.

(15) Section 601(a) is amended by striking `nondramtic' and inserting

`nondramatic'.

(16) Section 601(b)(1) is amended by striking `subsustantial' and

inserting `substantial'.

(17) The item relating to section 710 in the table of sections at the

beginning of chapter 7 is amended by striking `Reproductions' and

inserting `Reproduction'.

(18) The item relating to section 801 in the table of sections at the

beginning of chapter 8 is amended by striking `establishment' and

inserting `Establishment'.

(19) Section 801(b) is amended--

(A) by striking `shal be--' and inserting `shall be as follows:';

(B) in paragraph (1) by striking `to make' and inserting `To make';

(i) by striking `to make' and inserting `To make'; and

(ii) in subparagraph (D) by striking `adjustment; and' and

inserting `adjustment.'; and

(D) in paragraph (3) by striking `to distribute' and inserting `To

distribute'.

(20) Section 803(b) is amended in the second sentence by striking

`subsection subsection' and inserting `subsection'.

(21) The item relating to section 903 in the table of sections at the

beginning of chapter 9 is amended to read as follows:

`903. Ownership, transfer, licensure, and recordation.'.

(22) Section 909(b)(1) is amended--

(A) by striking `force' and inserting `work'; and

(B) by striking `sumbol' and inserting `symbol'.

(23) Section 910(a) is amended in the second sentence by striking `as

used' and inserting `As used'.

(24) Section 1006(b)(1) is amended by striking `Federation Television'

and inserting `Federation of Television'.

(25) Section 1007 is amended--

(A) in subsection (a)(1) by striking `The calendar year in which

this chapter takes effect' and inserting `calendar year 1992'; and

(B) in subsection (b) by striking `the year in which this section

takes effect' and inserting `1992'.

(b) RELATED PROVISIONS-

(1) Section 1(a)(1) of the Act entitled `An Act to amend chapter 9 of

title 17, United States Code, regarding protection extended to

semiconductor chip products of foreign entities', approved November 9,

1987 (17 U.S.C. 914 note), is amended by striking `orginating' and

inserting `originating'.

(2) Section 2319(b)(1) of title 18, United States Code, is amended by

striking `last 10' and inserting `least 10'.

SEC. 13. EFFECTIVE DATES.

(a) IN GENERAL- Except as provided in subsections (b) and (c), the

amendments made by this title shall take effect on the date of the enactment

of this Act.

(b) SATELLITE HOME VIEWER ACT OF 1994- The amendments made by section 2

shall be effective as if enacted as part of the Satellite Home Viewer Act of

1994 (Public Law 103-369).

effective as if enacted on November 9, 1987.

END