Copyright Law of the United States of America
by
The US Copyright Office
Part 7 out of 7
correct any error in a registration incurred through the fault of the
Office, or, upon payment of the required fee, any error of a clerical or
typographical nature occurring in good faith but not through the fault
of the Office. Such registration, together with the certificate, shall
thereafter have the same effect as if it had been originally issued in
such corrected form.
Section 1320. Ownership and transfer [5]
(a) Property Right in Design. The property right in a design subject to
protection under this chapter shall vest in the designer, the legal
representatives of a deceased designer or of one under legal incapacity,
the employer for whom the designer created the design in the case of a
design made within the regular scope of the designer's employment, or a
person to whom the rights of the designer or of such employer have been
transferred. The person in whom the property right is vested shall be
considered the owner of the design.
(b) Transfer of Property Right. The property right in a registered
design, or a design for which an application for registration has been
or may be filed, may be assigned, granted, conveyed, or mortgaged by an
instrument in writing, signed by the owner, or may be bequeathed by
will.
(c) Oath or Acknowledgment of Transfer. An oath or acknowledgment under
section 1312 shall be prima facie evidence of the execution of an
assignment, grant, conveyance, or mortgage under subsection (b).
(d) Recordation of Transfer. An assignment, grant, conveyance, or
mortgage under subsection (b) shall be void as against any subsequent
purchaser or mortgagee for a valuable consideration, unless it is
recorded in the Office of the Administrator within 3 months after its
date of execution or before the date of such subsequent purchase or
mortgage.
Section 1321. Remedy for infringement
(a) In General. The owner of a design is entitled, after issuance of a
certificate of registration of the design under this chapter, to
institute an action for any infringement of the design.
(b) Review of Refusal To Register. (1) Subject to paragraph (2), the
owner of a design may seek judicial review of a final refusal of the
Administrator to register the design under this chapter by bringing a
civil action, and may in the same action, if the court adjudges the
design subject to protection under this chapter, enforce the rights in
that design under this chapter.
(2) The owner of a design may seek judicial review under this section
if-
(A) the owner has previously duly filed and prosecuted to final refusal
an application in proper form for registration of the design;
(B) the owner causes a copy of the complaint in the action to be
delivered to the Administrator within 10 days after the commencement of
the action; and
(C) the defendant has committed acts in respect to the design which
would constitute infringement with respect to a design protected under
this chapter.
(c) Administrator as Party to Action. The Administrator may, at the
Administrator's option, become a party to the action with respect to the
issue of registrability of the design claim by entering an appearance
within 60 days after being served with the complaint, but the failure of
the Administrator to become a party shall not deprive the court of
jurisdiction to determine that issue.
(d) Use of Arbitration To Resolve Dispute. The parties to an
infringement dispute under this chapter, within such time as may be
specified by the Administrator by regulation, may determine the dispute,
or any aspect of the dispute, by arbitration. Arbitration shall be
governed by title 9. The parties shall give notice of any arbitration
award to the Administrator, and such award shall, as between the parties
to the arbitration, be dispositive of the issues to which it relates.
The arbitration award shall be unenforceable until such notice is given.
Nothing in this subsection shall preclude the Administrator from
determining whether a design is subject to registration in a
cancellation proceeding under section 1313(c).
Section 1322. Injunctions
(a) In General. A court having jurisdiction over actions under this
chapter may grant injunctions in accordance with the principles of
equity to prevent infringement of a design under this chapter,
including, in its discretion, prompt relief by temporary restraining
orders and preliminary injunctions.
(b) Damages for Injunctive Relief Wrongfully Obtained. A seller or
distributor who suffers damage by reason of injunctive relief wrongfully
obtained under this section has a cause of action against the applicant
for such injunctive relief and may recover such relief as may be
appropriate, including damages for lost profits, cost of materials, loss
of good will, and punitive damages in instances where the injunctive
relief was sought in bad faith, and, unless the court finds extenuating
circumstances, reasonable attorney's fees.
Section 1323. Recovery for infringement
(a) Damages. Upon a finding for the claimant in an action for
infringement under this chapter, the court shall award the claimant
damages adequate to compensate for the infringement. In addition, the
court may increase the damages to such amount, not exceeding $50,000 or
$1 per copy, whichever is greater, as the court determines to be just.
The damages awarded shall constitute compensation and not a penalty. The
court may receive expert testimony as an aid to the determination of
damages.
(b) Infringer's Profits. As an alternative to the remedies provided in
subsection (a), the court may award the claimant the infringer's profits
resulting from the sale of the copies if the court finds that the
infringer's sales are reasonably related to the use of the claimant's
design. In such a case, the claimant shall be required to prove only the
amount of the infringer's sales and the infringer shall be required to
prove its expenses against such sales.
(c) Statute of Limitations. No recovery under subsection (a) or (b)
shall be had for any infringement committed more than 3 years before the
date on which the complaint is filed.
(d) Attorney's Fees. In an action for infringement under this chapter,
the court may award reasonable attorney's fees to the prevailing party.
(e) Disposition of Infringing and Other Articles. The court may order
that all infringing articles, and any plates, molds, patterns, models,
or other means specifically adapted for making the articles, be
delivered up for destruction or other disposition as the court may
direct.
Section 1324. Power of court over registration
In any action involving the protection of a design under this chapter,
the court, when appropriate, may order registration of a design under
this chapter or the cancellation of such a registration. Any such order
shall be certified by the court to the Administrator, who shall make an
appropriate entry upon the record.
Section 1325. Liability for action on registration fraudulently obtained
Any person who brings an action for infringement knowing that
registration of the design was obtained by a false or fraudulent
representation materially affecting the rights under this chapter, shall
be liable in the sum of $10,000, or such part of that amount as the
court may determine. That amount shall be to compensate the defendant
and shall be charged against the plaintiff and paid to the defendant, in
addition to such costs and attorney's fees of the defendant as may be
assessed by the court.
Section 1326. Penalty for false marking
(a) In General. Whoever, for the purpose of deceiving the public, marks
upon, applies to, or uses in advertising in connection with an article
made, used, distributed, or sold, a design which is not protected under
this chapter, a design notice specified in section 1306, or any other
words or symbols importing that the design is protected under this
chapter, knowing that the design is not so protected, shall pay a civil
fine of not more than $500 for each such offense.
(b) Suit by Private Persons. Any person may sue for the penalty
established by subsection (a), in which event one-half of the penalty
shall be awarded to the person suing and the remainder shall be awarded
to the United States.
Section 1327. Penalty for false representation
Whoever knowingly makes a false representation materially affecting the
rights obtainable under this chapter for the purpose of obtaining
registration of a design under this chapter shall pay a penalty of not
less than $500 and not more than $1,000, and any rights or privileges
that individual may have in the design under this chapter shall be
forfeited.
Section 1328. Enforcement by Treasury and Postal Service
(a) Regulations. The Secretary of the Treasury and the United States
Postal Service shall separately or jointly issue regulations for the
enforcement of the rights set forth in section 1308 with respect to
importation. Such regulations may require, as a condition for the
exclusion of articles from the United States, that the person seeking
exclusion take any one or more of the following actions:
(1) Obtain a court order enjoining, or an order of the International
Trade Commission under section 337 of the Tariff Act of 1930 excluding,
importation of the articles.
(2) Furnish proof that the design involved is protected under this
chapter and that the importation of the articles would infringe the
rights in the design under this chapter.
(3) Post a surety bond for any injury that may result if the detention
or exclusion of the articles proves to be unjustified.
(b) Seizure and Forfeiture. Articles imported in violation of the rights
set forth in section 1308 are subject to seizure and forfeiture in the
same manner as property imported in violation of the customs laws. Any
such forfeited articles shall be destroyed as directed by the Secretary
of the Treasury or the court, as the case may be, except that the
articles may be returned to the country of export whenever it is shown
to the satisfaction of the Secretary of the Treasury that the importer
had no reasonable grounds for believing that his or her acts constituted
a violation of the law.
Section 1329. Relation to design patent law
The issuance of a design patent under title 35, United States Code, for
an original design for an article of manufacture shall terminate any
protection of the original design under this chapter.
Section 1330. Common law and other rights unaffected
Nothing in this chapter shall annul or limit-
(1) common law or other rights or remedies, if any, available to or held
by any person with respect to a design which has not been registered
under this chapter; or
(2) any right under the trademark laws or any right protected against
unfair competition.
Section 1331. Administrator; Office of the Administrator
In this chapter, the "Administrator" is the Register of Copyrights, and
the "Office of the Administrator" and the "Office" refer to the
Copyright Office of the Library of Congress.
Section 1332. No retroactive effect
Protection under this chapter shall not be available for any design that
has been made public under section 1310(b) before the effective date of
this chapter.
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Chapter 13 Endnotes
1 In 1998, the Vessel Hull Design Protection Act added chapter 13,
entitled "Protection of Original Designs," to title 17. Pub. L. No.
105-304, 112 Stat. 2860, 2905. The Vessel Hull Design Protection Act is
title V of the Digital Millennium Copyright Act, Pub. L. No. 105-304,
112 Stat. 2860.
2 The Satellite Home Viewer Improvement Act of 1999 amended section
1301(b)(3) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I
at 1501A-593.
3 In 1999, section 1302(5) was amended to substitute "2 years" in lieu
of "1 year." Pub. L. No. 106-44, 113 Stat. 221, 222.
4 The Satellite Home Viewer Improvement Act of 1999 amended section
1313(c) by adding at the end thereof the last sentence, which begins
"Costs of the cancellation procedure." Pub. L. No. 106-113, 113 Stat.
1501, app. I at 1501A-594.
5 In 1999, section 1320 was amended to change the spelling in the
heading of subsection (c) from "acknowledgement" to "acknowledgment."
Pub. L. No. 106-44, 113 Stat. 221, 222.
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Appendix I. Transitional and Supplementary Provisions of the
Copyright Act of 1976 [1]
Sec. 102. This Act becomes effective on January 1, 1978, except as
otherwise expressly provided by this Act, including provisions of the
first section of this Act. The provisions of sections 118, 304(b), and
chapter 8 of title 17, as amended by the first section of this Act, take
effect upon enactment of this Act.
Sec. 103. This Act does not provide copyright protection for any work
that goes into the public domain before January 1, 1978. The exclusive
rights, as provided by section 106 of title 17 as amended by the first
section of this Act, to reproduce a work in phonorecords and to
distribute phonorecords of the work, do not extend to any nondramatic
musical work copyrighted before July 1, 1909.
Sec. 104. All proclamations issued by the President under section 1(e)
or 9(b) of title 17 as it existed on December 31, 1977, or under
previous copyright statutes of the United States, shall continue in
force until terminated, suspended, or revised by the President.
Sec. 105. (a)(1) Section 505 of title 44 is amended to read as follows:
"Sec. 505. Sale of duplicate plates
"The Public Printer shall sell, under regulations of the Joint Committee
on Printing to persons who may apply, additional or duplicate stereotype
or electrotype plates from which a Government publication is printed, at
a price not to exceed the cost of composition, the metal, and making to
the Government, plus 10 per centum, and the full amount of the price
shall be paid when the order is filed."
(2) The item relating to section 505 in the sectional analysis at the
beginning of chapter 5 of title 44, is amended to read as follows:
"505. Sale of duplicate plates.".
(b) Section 2113 of title 44 is amended to read as follows:
[To assist the reader, section 2113 of title 44, now designated section
2117, appears in part VII of the Appendix, *infra*, as currently
amended.]
(c) In section 1498(b) of title 28, the phrase "section 101(b) of title
17" is amended to read "section 504(c) of title 17".
(d) Section 543(a)(4) of the Internal Revenue Code of 1954, as amended,
is amended by striking out "(other than by reason of section 2 or 6
thereof)".
(e) Section 3202(a) of title 39 is amended by striking out clause (5).
Section 3206 of title 39 is amended by deleting the words "subsections
(b) and (c)" and inserting "subsection (b)" in subsection (a), and by
deleting subsection (c). Section 3206(d) is renumbered (c).
(f) Subsection (a) of section 290(e) of title 15 is amended by deleting
the phrase "section 8" and inserting in lieu thereof the phrase "section
105". [2]
(g) Section 131 of title 2 is amended by deleting the phrase "deposit to
secure copyright," and inserting in lieu thereof the phrase "acquisition
of material under the copyright law,".
Sec. 106. In any case where, before January 1, 1978, a person has
lawfully made parts of instruments serving to reproduce mechanically a
copyrighted work under the compulsory license provisions of section 1(e)
of title 17 as it existed on December 31, 1977, such person may continue
to make and distribute such parts embodying the same mechanical
reproduction without obtaining a new compulsory license under the terms
of section 115 of title 17 as amended by the first section of this Act.
However, such parts made on or after January 1, 1978, constitute
phonorecords and are otherwise subject to the provisions of said section
115.
Sec. 107. In the case of any work in which an ad interim copyright is
subsisting or is capable of being secured on December 31, 1977, under
section 22 of title 17 as it existed on that date, copyright protection
is hereby extended to endure for the term or terms provided by section
304 of title 17 as amended by the first section of this Act.
Sec. 108. The notice provisions of sections 401 through 403 of title 17
as amended by the first section of this Act apply to all copies or
phonorecords publicly distributed on or after January 1, 1978. However,
in the case of a work published before January 1, 1978, compliance with
the notice provisions of title 17 either as it existed on December 31,
1977, or as amended by the first section of this Act, is adequate with
respect to copies publicly distributed after December 31, 1977.
Sec. 109. The registration of claims to copyright for which the required
deposit, application, and fee were received in the Copyright Office
before January 1, 1978, and the recordation of assignments of copyright
or other instruments received in the Copyright Office before January 1,
1978, shall be made in accordance with title 17 as it existed on
December 31, 1977.
Sec. 110. The demand and penalty provisions of section 14 of title 17 as
it existed on December 31, 1977, apply to any work in which copyright
has been secured by publication with notice of copyright on or before
that date, but any deposit and registration made after that date in
response to a demand under that section shall be made in accordance with
the provisions of title 17 as amended by the first section of this Act.
Sec. 111. Section 2318 of title 18 of the United States Code is amended
to read as follows:
[To assist the reader, section 2318 of title 18, as currently amended,
along with related criminal provisions, appears in part VII of the
Appendix, *infra*.]
Sec. 112. All causes of action that arose under title 17 before January
1, 1978, shall be governed by title 17 as it existed when the cause of
action arose.
Sec. 113. (a) The Librarian of Congress (hereinafter referred to as the
"Librarian") shall establish and maintain in the Library of Congress a
library to be known as the American Television and Radio Archives
(hereinafter referred to as the "Archives"). The purpose of the Archives
shall be to preserve a permanent record of the television and radio
programs which are the heritage of the people of the United States and
to provide access to such programs to historians and scholars without
encouraging or causing copyright infringement.
(1) The Librarian, after consultation with interested organizations and
individuals, shall determine and place in the Archives such copies and
phonorecords of television and radio programs transmitted to the public
in the United States and in other countries which are of present or
potential public or cultural interest, historical significance,
cognitive value, or otherwise worthy of preservation, including copies
and phonorecords of published and unpublished transmission programs-
(A) acquired in accordance with sections 407 and 408 of title 17 as
amended by the first section of this Act; and
(B) transferred from the existing collections of the Library of
Congress; and
(C) given to or exchanged with the Archives by other libraries,
archives, organizations, and individuals; and
(D) purchased from the owner thereof.
(2) The Librarian shall maintain and publish appropriate catalogs and
indexes of the collections of the Archives, and shall make such
collections available for study and research under the conditions
prescribed under this section.
(b) Notwithstanding the provisions of section 106 of title 17 as amended
by the first section of this Act, the Librarian is authorized with
respect to a transmission program which consists of a regularly
scheduled newscast or on-the-spot coverage of news events and, under
standards and conditions that the Librarian shall prescribe by
regulation-
(1) to reproduce a fixation of such a program, in the same or another
tangible form, for the purposes of preservation or security or for
distribution under the conditions of clause (3) of this subsection; and
(2) to compile, without abridgment or any other editing, portions of
such fixations according to subject matter, and to reproduce such
compilations for the purpose of clause (1) of this subsection; and
(3) to distribute a reproduction made under clause (1) or (2) of this
subsection-
(A) by loan to a person engaged in research; and
(B) for deposit in a library or archives which meets the requirements of
section 108(a) of title 17 as amended by the first section of this Act,
in either case for use only in research and not for further reproduction
or performance.
(c) The Librarian or any employee of the Library who is acting under the
authority of this section shall not be liable in any action for
copyright infringement committed by any other person unless the
Librarian or such employee knowingly participated in the act of
infringement committed by such person. Nothing in this section shall be
construed to excuse or limit liability under title 17 as amended by the
first section of this Act for any act not authorized by that title or
this section, or for any act performed by a person not authorized to act
under that title or this section.
(d) This section may be cited as the "American Television and Radio
Archives Act".
Sec. 114. There are hereby authorized to be appropriated such funds as
may be necessary to carry out the purposes of this Act.
Sec. 115. If any provision of title 17, as amended by the first section
of this Act, is declared unconstitutional, the validity of the remainder
of this title is not affected.
-------------------
Appendix I Endnotes
1 Part I of the Appendix contains the Transitional and Supplementary
Provisions of the Copyright Act of 1976, Pub. L. No. 94-533, 90 Stat.
2541, that do not amend title 17 of the *United States Code.*
2 The correct reference is to "290e," not "290(e)."
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Appendix II. Berne Convention Implementation Act of 1988 [1]
Sec. 2. Declarations.
The Congress makes the following declarations:
(1) The Convention for the Protection of Literary and Artistic Works,
signed at Berne, Switzerland, on September 9, 1886, and all acts,
protocols, and revisions thereto (hereafter in this Act referred to as
the "Berne Convention") are not self-executing under the Constitution
and laws of the United States.
(2) The obligations of the United States under the Berne Convention may
be performed only pursuant to appropriate domestic law.
(3) The amendments made by this Act, together with the law as it exists
on the date of the enactment of this Act, satisfy the obligations of the
United States in adhering to the Berne Convention and no further rights
or interests shall be recognized or created for that purpose.
Sec. 3. Construction of the Berne Convention.
(a) Relationship With Domestic Law. The provisions of the Berne
Convention-
(1) shall be given effect under title 17, as amended by this Act, and
any other relevant provision of Federal or State law, including the
common law; and
(2) shall not be enforceable in any action brought pursuant to the
provisions of the Berne Convention itself.
(b) Certain Rights Not Affected. The provisions of the Berne Convention,
the adherence of the United States thereto, and satisfaction of United
States obligations thereunder, do not expand or reduce any right of an
author of a work, whether claimed under Federal, State, or the common
law-
(1) to claim authorship of the work; or
(2) to object to any distortion, mutilation, or other modification of,
or other derogatory action in relation to, the work, that would
prejudice the author's honor or reputation.
Sec. 12. Works in the public domain.
Title 17, United States Code, as amended by this Act, does not provide
copyright protection for any work that is in the public domain in the
United States.
Sec. 13. Effective date: effect on pending cases.
(a) Effective Date. This Act and the amendments made by this Act take
effect on the date on which the Berne Convention (as defined in section
101 of title 17, United States Code) enters into force with respect to
the United States. [2]
(b) Effect on Pending Cases. Any cause of action arising under title 17,
United States Code, before the effective date of this Act shall be
governed by the provisions of such title as in effect when the cause of
action arose.
--------------------
Appendix II Endnotes
1 Part II of the Appendix consists of provisions of the Berne
Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat.
2853, that do not amend title 17 of the *United States Code.*
2 The Berne Convention entered into force in the United States on March
1, 1989.
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Appendix III. Uruguay Round Agreements Act [1]
Sec. 2. Definitions.
For purposes of this Act:
(1) GATT 1947; GATT 1994.
(A) GATT 1947. The term "GATT 1947" means the General Agreement on
Tariffs and Trade, dated October 30, 1947, annexed to the Final Act
Adopted at the Conclusion of the Second Session of the Preparatory
Committee of the United Nations Conference on Trade and Employment, as
subsequently rectified, amended, or modified by the terms of legal
instruments which have entered into force before the date of entry into
force of the WTO Agreement.
(B) GATT 1994. The term "GATT 1994" means the General Agreement on
Tariffs and Trade annexed to the WTO Agreement.
(2) HTS. The term "HTS" means the Harmonized Tariff Schedule of the
United States.
(3)International trade commission. The term "International Trade
Commission" means the United States International Trade Commission.
(4) Multilateral trade agreement. The term "multilateral trade
agreement" means an agreement described in section 101(d) of this Act
(other than an agreement described in paragraph (17) or (18) of such
section).
(5) Schedule XX. The term "Schedule XX" means Schedule XX - United States
of America annexed to the Marrakesh Protocol to the GATT 1994.
(6) Trade representative. The term "Trade Representative" means the
United States Trade Representative.
(7) Uruguay round agreements. The term "Uruguay Round Agreements" means
the agreements approved by the Congress under section 101(a)(1).
(8) World trade organization and WTO. The terms "World Trade
Organization" and "WTO" mean the organization established pursuant to
the WTO Agreement.
(9) WTO agreement. The term "WTO Agreement" means the Agreement
Establishing the World Trade Organization entered into on April 15,
1994.
(10) WTO member and WTO member country. The terms "WTO member" and "WTO
member country" mean a state, or separate customs territory (within the
meaning of Article XII of the WTO Agreement), with respect to which the
United States applies the WTO Agreement.
Sec. 101. Approval and entry into force of the Uruguay Round Agreements.
(a) Approval of Agreements and Statement of Administrative Action.
Pursuant to section 1103 of the Omnibus Trade and Competitiveness Act of
1988 (19 U.S.C. 2903) and section 151 of the Trade Act of 1974 (19
U.S.C. 2191), the Congress approves-
(1) the trade agreements described in subsection (d) resulting from the
Uruguay Round of multilateral trade negotiations under the auspices of
the General Agreement on Tariffs and Trade, entered into on April 15,
1994, and submitted to the Congress on September 27, 1994; and
(2) the statement of administrative action proposed to implement the
agreements that was submitted to the Congress on September 27, 1994.
(b) Entry Into Force. At such time as the President determines that a
sufficient number of foreign countries are accepting the obligations of
the Uruguay Round Agreements, in accordance with article XIV of the WTO
Agreement, to ensure the effective operation of, and adequate benefits
for the United States under, those Agreements, the President may accept
the Uruguay Round Agreements and implement article VIII of the WTO
Agreement.
(c) Authorization of Appropriations. There are authorized to be
appropriated annually such sums as may be necessary for the payment by
the United States of its share of the expenses of the WTO.
(d) Trade Agreements to Which This Act Applies. Subsection (a) applies
to the WTO Agreement and to the following agreements annexed to that
Agreement:
(1) The General Agreement on Tariffs and Trade 1994.
(2) The Agreement on Agriculture.
(3) The Agreement on the Application of Sanitary and Phytosanitary
Measures.
(4) The Agreement on Textiles and Clothing.
(5) The Agreement on Technical Barriers to Trade.
(6) The Agreement on Trade-Related Investment Measures.
(7) The Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994.
(8) The Agreement on Implementation of Article VII of the General
Agreement on Tariffs and Trade 1994.
(9) The Agreement on Preshipment Inspection.
(10) The Agreement on Rules of Origin.
(11) The Agreement on Import Licensing Procedures.
(12) The Agreement on Subsidies and Countervailing Measures.
(13) The Agreement on Safeguards.
(14) The General Agreement on Trade in Services.
(15) The Agreement on Trade-Related Aspects of Intellectual Property
Rights.
(16) The Understanding on Rules and Procedures Governing the Settlement
of Disputes.
(17) The Agreement on Government Procurement.
(18) The International Bovine Meat Agreement.
Sec. 102. Relationship of the agreements to United States law and
state law.
(a) Relationship of Agreements to United States Law.
(1) United states law to prevail in conflict. No provision of any of the
Uruguay Round Agreements, nor the application of any such provision to
any person or circumstance, that is inconsistent with any law of the
United States shall have effect.
(2) Construction. Nothing in this Act shall be construed
(A) to amend or modify any law of the United States, including any law
relating to-
(i) the protection of human, animal, or plant life or health,
(ii) the protection of the environment, or
(iii) worker safety, or
(B) to limit any authority conferred under any law of the United States,
including section 301 of the Trade Act of 1974,
unless specifically provided for in this Act.
(b) Relationship of Agreements to State Law.-
(1) Federal-State Consultation.
(A) In General. Upon the enactment of this Act, the President shall,
through the intergovernmental policy advisory committees on trade
established under section 306(c)(2)(A) of the Trade and Tariff Act of
1984 (19 U.S.C. 2114c(2)(A)), consult with the States for the purpose of
achieving conformity of State laws and practices with the Uruguay Round
Agreements.
(B) Federal-State Consultation Process. The Trade Representative shall
establish within the Office of the United States Trade Representative a
Federal-State consultation process for addressing issues relating to the
Uruguay Round Agreements that directly relate to, or will potentially
have a direct effect on, the States. The Federal-State consultation
process shall include procedures under which-
(i) the States will be informed on a continuing basis of matters under
the Uruguay Round Agreements that directly relate to, or will
potentially have a direct impact on, the States;
(ii) the States will be provided an opportunity to submit, on a
continuing basis, to the Trade Representative information and advice
with respect to matters referred to in clause (i); and
(iii) the Trade Representative will take into account the information
and advice received from the States under clause (ii) when formulating
United States positions regarding matters referred to in clause (i).
The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to
the Federal-State consultation process established by this paragraph.
(C) Federal-State Cooperation in WTO Dispute Settlement.
(i) When a WTO member requests consultations with the United States
under Article 4 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes referred to in section 101(d)(16) (hereafter
in this subsection referred to as the "Dispute Settlement
Understanding") concerning whether the law of a State is inconsistent
with the obligations undertaken by the United States in any of the
Uruguay Round Agreements, the Trade Representative shall notify the
Governor of the State or the Governor's designee, and the chief legal
officer of the jurisdiction whose law is the subject of the
consultations, as soon as possible after the request is received, but in
no event later than 7 days thereafter.
(ii) Not later than 30 days after receiving such a request for
consultations, the Trade Representative shall consult with
representatives of the State concerned regarding the matter. If the
consultations involve the laws of a large number of States, the Trade
Representative may consult with an appropriate group of representatives
of the States concerned, as determined by those States.
(iii) The Trade Representative shall make every effort to ensure that
the State concerned is involved in the development of the position of
the United States at each stage of the consultations and each subsequent
stage of dispute settlement proceedings regarding the matter. In
particular, the Trade Representative shall-
(I) notify the State concerned not later than 7 days after a WTO member
requests the establishment of a dispute settlement panel or gives notice
of the WTO member's decision to appeal a report by a dispute settlement
panel regarding the matter; and
(II) provide the State concerned with the opportunity to advise and
assist the Trade Representative in the preparation of factual
information and argumentation for any written or oral presentations by
the United States in consultations or in proceedings of a panel or the
Appellate Body regarding the matter.
(iv) If a dispute settlement panel or the Appellate Body finds that the
law of a State is inconsistent with any of the Uruguay Round Agreements,
the Trade Representative shall consult with the State concerned in an
effort to develop a mutually agreeable response to the report of the
panel or the Appellate Body and shall make every effort to ensure that
the State concerned is involved in the development of the United States
position regarding the response.
(D) Notice to States Regarding Consultations on Foreign Subcentral
Government Laws.
(i) Subject to clause (ii), the Trade Representative shall, at least 30
days before making a request for consultations under Article 4 of the
Dispute Settlement Understanding regarding a subcentral government
measure of another WTO member, notify, and solicit the views of,
appropriate representatives of each State regarding the matter.
(ii) In exigent circumstances clause (i) shall not apply, in which case
the Trade Representative shall notify the appropriate representatives of
each State not later than 3 days after making the request for
consultations referred to in clause (i).
(2) Legal Challenge.
(A) In General. No State law, or the application of such a State law,
may be declared invalid as to any person or circumstance on the ground
that the provision or application is inconsistent with any of the
Uruguay Round Agreements, except in an action brought by the United
States for the purpose of declaring such law or application invalid.
(B) Procedures Governing Action. In any action described in subparagraph
(A) that is brought by the United States against a State or any
subdivision thereof
(i) a report of a dispute settlement panel or the Appellate Body
convened under the Dispute Settlement Understanding regarding the State
law, or the law of any political subdivision thereof, shall not be
considered as binding or otherwise accorded deference;
(ii) the United States shall have the burden of proving that the law
that is the subject of the action, or the application of that law, is
inconsistent with the agreement in question;
(iii) any State whose interests may be impaired or impeded in the action
shall have the unconditional right to intervene in the action as a
party, and the United States shall be entitled to amend its complaint to
include a claim or cross-claim concerning the law of a State that so
intervenes; and
(iv) any State law that is declared invalid shall not be deemed to have
been invalid in its application during any period before the court's
judgment becomes final and all timely appeals, including discretionary
review, of such judgment are exhausted.
(C) Reports to Congressional Committees. At least 30 days before the
United States brings an action described in subparagraph (A), the Trade
Representative shall provide a report to the Committee on Ways and Means
of the House of Representatives and the Committee on Finance of the
Senate-
(i) describing the proposed action;
(ii) describing efforts by the Trade Representative to resolve the
matter with the State concerned by other means; and
(iii) if the State law was the subject of consultations under the
Dispute Settlement Understanding, certifying that the Trade
Representative has substantially complied with the requirements of
paragraph (1)(C) in connection with the matter.
Following the submission of the report, and before the action is
brought, the Trade Representative shall consult with the committees
referred to in the preceding sentence concerning the matter.
(3) Definition of State Law. For purposes of this subsection-
(A) the term "State law" includes-
(i) any law of a political subdivision of a State; and
(ii) any State law regulating or taxing the business of insurance; and
(B) the terms "dispute settlement panel" and "Appellate Body" have the
meanings given those terms in section 121.
(c) Effect of Agreement With Respect to Private Remedies.
(1) Limitations. No person other than the United States-
(A) shall have any cause of action or defense under any of the Uruguay
Round Agreements or by virtue of congressional approval of such an
agreement, or
(B) may challenge, in any action brought under any provision of law, any
action or inaction by any department, agency, or other instrumentality
of the United States, any State, or any political subdivision of a State
on the ground that such action or inaction is inconsistent with such
agreement.
(2) Intent of congress. It is the intention of the Congress through
paragraph (1) to occupy the field with respect to any cause of action or
defense under or in connection with any of the Uruguay Round Agreements,
including by precluding any person other than the United States from
bringing any action against any State or political subdivision thereof
or raising any defense to the application of State law under or in
connection with any of the Uruguay Round Agreements-
(A) on the basis of a judgment obtained by the United States in an
action brought under any such agreement; or
(B) on any other basis.
(d) Statement of Administrative Action. The statement of administrative
action approved by the Congress under section 101(a) shall be regarded
as an authoritative expression by the United States concerning the
interpretation and application of the Uruguay Round Agreements and this
Act in any judicial proceeding in which a question arises concerning
such interpretation or application.
Sec. 103. Implementing actions in anticipation of entry into force;
regulations.
(a) Implementing Actions. After the date of the enactment of this Act-
(1) the President may proclaim such actions, and
(2) other appropriate officers of the United States Government may issue
such regulations,
as may be necessary to ensure that any provision of this Act, or
amendment made by this Act, that takes effect on the date any of the
Uruguay Round Agreements enters into force with respect to the United
States is appropriately implemented on such date. Such proclamation or
regulation may not have an effective date earlier than the date of entry
into force with respect to the United States of the agreement to which
the proclamation or regulation relates.
(b) Regulations. Any interim regulation necessary or appropriate to
carry out any action proposed in the statement of administrative action
approved under section 101(a) to implement an agreement described in
section 101(d) (7), (12), or (13) shall be issued not later than 1 year
after the date on which the agreement enters into force with respect to
the United States.
--------------------
Appendix III Endnote
1 Part III of the Appendix consists of provisions of the Uruguay Round
Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, that do not amend
title 17 of the *United States Code.*
------------------------------------------------------------------------
Appendix IV. GATT/Trade-Related Aspects of Intellectual
Property Rights (TRIPs) Agreement, Part II: [1]
Section 6: Layout-Designs (Topographies) of Integrated Circuits
Article 35
Relation to IPIC Treaty
Members agree to provide protection to the layout-designs (topographies)
of integrated circuits (hereinafter referred to as "layout-designs") in
accordance with Articles 2-7 (other than paragraph 3 of Article 6),
Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual
Property in Respect of Integrated Circuits and, in addition, to comply
with the following provisions.
Article 36
Scope of the Protection [2]
Subject to the provisions of paragraph 1 of Article 37 below, Members
shall consider unlawful the following acts if performed without the
authorization of the right holder: importing, selling, or otherwise
distributing for commercial purposes a protected layout-design, an
integrated circuit in which a protected layout-design is incorporated,
or an article incorporating such an integrated circuit only insofar as
it continues to contain an unlawfully reproduced layout-design.
Article 37
Acts not Requiring the Authorization of the Right Holder
1. Notwithstanding Article 36 above, no Member shall consider unlawful
the performance of any of the acts referred to in that Article in
respect of an integrated circuit incorporating an unlawfully reproduced
layout-design or any article incorporating such an integrated circuit
where the person performing or ordering such acts did not know and had
no reasonable ground to know, when acquiring the integrated circuit or
article incorporating such an integrated circuit, that it incorporated
an unlawfully reproduced layout-design. Members shall provide that,
after the time that such person has received sufficient notice that the
layout-design was unlawfully reproduced, he may perform any of the acts
with respect to the stock on hand or ordered before such time, but shall
be liable to pay to the right holder a sum equivalent to a reasonable
royalty such as would be payable under a freely negotiated license in
respect of such a layout-design.
2. The conditions set out in sub-paragraphs (a)-(k) of Article 31 above
shall apply *mutatis mutandis* in the event of any non-voluntary
licensing of a layout-design or of its use by or for the government
without the authorization of the right holder.
Article 38
Term of Protection
1. In Members requiring registration as a condition of protection, the
term of protection of layout-designs shall not end before the expiration
of a period of ten years counted from the date of filing an application
for registration or from the first commercial exploitation wherever in
the world it occurs.
2. In Members not requiring registration as a condition for protection,
layout-designs shall be protected for a term of no less than ten years
from the date of the first commercial exploitation wherever in the world
it occurs.
3. Notwithstanding paragraphs 1 and 2 above, a Member may provide that
protection shall lapse fifteen years after the creation of the layout-
design.
--------------------
Appendix IV Endnotes
1 For an explanation of the relationship of this section of TRIPs to
title 17 of the *United States Code*, see the second paragraph of
endnote 8, chapter 9, *supra.*
2 The term "right holder" in this section shall be understood as having
the same meaning as the term "holder of the right" in the Treaty on
Intellectual Property in Respect of Integrated Circuits, done at
Washington, D.C., on May 26, 1989.
------------------------------------------------------------------------
Appendix V. Additional Provisions of the Digital Millennium
Copyright Act [1]
Section 1. Short Title.
This Act may be cited as the "Digital Millennium Copyright Act".
Title I-WIPO Treaties Implementation
SEC. 101. SHORT TITLE.
This title may be cited as the "WIPO Copyright and Performances and
Phonograms Treaties Implementation Act of 1998".
* * * * * * *
SEC. 104. EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON
ELECTRONIC COMMERCE AND TECHNOLOGICAL DEVELOPMENT.
(a) Evaluation by the Register of Copyrights and the Assistant Secretary
for Communications and Information. The Register of Copyrights and the
Assistant Secretary for Communications and Information of the Department
of Commerce shall jointly evaluate-
(1) the effects of the amendments made by this title and the development
of electronic commerce and associated technology on the operation of
sections 109 and 117 of title 17, United States Code; and
(2) the relationship between existing and emergent technology and the
operation of sections 109 and 117 of title 17, United States Code.
(b) Report to Congress. The Register of Copyrights and the Assistant
Secretary for Communications and Information of the Department of
Commerce shall, not later than 24 months after the date of the enactment
of this Act, submit to the Congress a joint report on the evaluation
conducted under subsection (a), including any legislative
recommendations the Register and the Assistant Secretary may have.
SEC. 105. EFFECTIVE DATE.
(a) In General. Except as otherwise provided in this title, this title
and the amendments made by this title shall take effect on the date of
the enactment of this Act.
(b) Amendments Relating to Certain International Agreements. (1) The
following shall take effect upon the entry into force of the WIPO
Copyright Treaty with respect to the United States:
(A) Paragraph (5) of the definition of "international agreement"
contained in section 101 of title 17, United States Code, as amended by
section 102(a)(4) of this Act.
(B) The amendment made by section 102(a)(6) of this Act.
(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. 203. EFFECTIVE DATE.
This title and the amendments made by this title shall take effect on
the date of the enactment of this Act.
* * * * * * *
Title IV - Miscellaneous Provisions
SEC. 401. PROVISIONS RELATING TO THE COMMISSIONER OF PATENTS AND
TRADEMARKS AND THE REGISTER OF COPYRIGHTS-
(a) Compensation. (1) Section 3(d) of title 35, United States Code, is
amended by striking "prescribed by law for Assistant Secretaries of
Commerce" and inserting "in effect for level III of the Executive
Schedule under section 5314 of title 5, United States Code".
* * * * * * *
(3) Section 5314 of title 5, United States Code, is amended by adding at
the end the following:
"Assistant Secretary of Commerce and Commissioner of Patents and
Trademarks.
"Register of Copyrights.".
* * * * * * *
SEC. 403. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION.
(a) Recommendations by Register of Copyrights. Not later than 6 months
after the date of the enactment of this Act, the Register of Copyrights,
after consultation with representatives of copyright owners, nonprofit
educational institutions, and nonprofit libraries and archives, shall
submit to the Congress recommendations on how to promote distance
education through digital technologies, including interactive digital
networks, while maintaining an appropriate balance between the rights of
copyright owners and the needs of users of copyrighted works. Such
recommendations shall include any legislation the Register of Copyrights
considers appropriate to achieve the objective described in the
preceding sentence.
(b) Factors. In formulating recommendations under subsection (a), the
Register of Copyrights shall consider-
(1) the need for an exemption from exclusive rights of copyright owners
for distance education through digital networks;
(2) the categories of works to be included under any distance education
exemption;
(3) the extent of appropriate quantitative limitations on the portions
of works that may be used under any distance education exemption;
(4) the parties who should be entitled to the benefits of any distance
education exemption;
(5) the parties who should be designated as eligible recipients of
distance education materials under any distance education exemption;
(6) whether and what types of technological measures can or should be
employed to safeguard against unauthorized access to, and use or
retention of, copyrighted materials as a condition of eligibility for
any distance education exemption, including, in light of developing
technological capabilities, the exemption set out in section 110(2) of
title 17, United States Code;
(7) the extent to which the availability of licenses for the use of
copyrighted works in distance education through interactive digital
networks should be considered in assessing eligibility for any distance
education exemption; and
(8) such other issues relating to distance education through interactive
digital networks that the Register considers appropriate.
* * * * * * *
SEC. 405. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS;
EPHEMERAL RECORDINGS.
(a) Scope of Exclusive Rights in Sound Recordings.
* * * * * * *
(5) The amendment made by paragraph (2)(B)(i)(III) of this subsection
shall be deemed to have been enacted as part of the Digital Performance
Right in Sound Recordings Act of 1995, and the publication of notice of
proceedings under section 114(f)(1) of title 17, United States Code, as
in effect upon the effective date of that Act, for the determination of
royalty payments shall be deemed to have been made for the period
beginning on the effective date of that Act and ending on December 1,
2001.
(6) The amendments made by this subsection do not annul, limit, or
otherwise impair the rights that are preserved by section 114 of title
17, United States Code, including the rights preserved by subsections
(c), (d)(4), and (i) of such section.
* * * * * * *
(c) Scope of Section 112(a) of Title 17 Not Affected.
Nothing in this section or the amendments made by this section shall
affect the scope of section 112(a) of title 17, United States Code, or
the entitlement of any person to an exemption thereunder.
* * * * * * *
SEC. 406. ASSUMPTION OF CONTRACTUAL OBLIGATIONS RELATED TO-
TRANSFERS OF RIGHTS IN MOTION PICTURES.
(a) In General. Part VI of title 28, United States Code, is amended by
adding at the end the following new chapter:
"CHAPTER 180-ASSUMPTION OF
CERTAIN CONTRACTUAL OBLIGATIONS
"Sec. 4001. Assumption of contractual obligations related to transfers
of rights in motion pictures.
"Sec. 4001. Assumption of contractual obligations related to transfers
of rights in motion pictures
"(a) Assumption of Obligations. (1) In the case of a transfer of
copyright ownership under United States law in a motion picture (as the
terms 'transfer of copyright ownership' and 'motion picture' are defined
in section 101 of title 17) that is produced subject to 1 or more
collective bargaining agreements negotiated under the laws of the United
States, if the transfer is executed on or after the effective date of
this chapter and is not limited to public performance rights, the
transfer instrument shall be deemed to incorporate the assumption
agreements applicable to the copyright ownership being transferred that
are required by the applicable collective bargaining agreement, and the
transferee shall be subject to the obligations under each such
assumption agreement to make residual payments and provide related
notices, accruing after the effective date of the transfer and
applicable to the exploitation of the rights transferred, and any
remedies under each such assumption agreement for breach of those
obligations, as those obligations and remedies are set forth in the
applicable collective bargaining agreement, if-
"(A) the transferee knows or has reason to know at the time of the
transfer that such collective bargaining agreement was or will be
applicable to the motion picture; or
"(B) in the event of a court order confirming an arbitration award
against the transferor under the collective bargaining agreement, the
transferor does not have the financial ability to satisfy the award
within 90 days after the order is issued.
"(2) For purposes of paragraph (1)(A), 'knows or has reason to know'
means any of the following:
"(A) Actual knowledge that the collective bargaining agreement was or
will be applicable to the motion picture.
"(B)(i) Constructive knowledge that the collective bargaining agreement
was or will be applicable to the motion picture, arising from
recordation of a document pertaining to copyright in the motion picture
under section 205 of title 17 or from publication, at a site available
to the public on-line that is operated by the relevant union, of
information that identifies the motion picture as subject to a
collective bargaining agreement with that union, if the site permits
commercially reasonable verification of the date on which the
information was available for access.
"(ii) Clause (i) applies only if the transfer referred to in subsection
(a)(1) occurs-
"(I) after the motion picture is completed, or
"(II) before the motion picture is completed and-
"(aa) within 18 months before the filing of an application for
copyright registration for the motion picture under section 408 of title
17, or
"(bb) if no such application is filed, within 18 months before the
first publication of the motion picture in the United States.
"(C) Awareness of other facts and circumstances pertaining to a
particular transfer from which it is apparent that the collective
bargaining agreement was or will be applicable to the motion picture.
"(b) Scope of Exclusion of Transfers of Public Performance Rights. For
purposes of this section, the exclusion under subsection (a) of
transfers of copyright ownership in a motion picture that are limited to
public performance rights includes transfers to a terrestrial broadcast
station, cable system, or programmer to the extent that the station,
system, or programmer is functioning as an exhibitor of the motion
picture, either by exhibiting the motion picture on its own network,
system, service, or station, or by initiating the transmission of an
exhibition that is carried on another network, system, service, or
station. When a terrestrial broadcast station, cable system, or
programmer, or other transferee, is also functioning otherwise as a
distributor or as a producer of the motion picture, the public
performance exclusion does not affect any obligations imposed on the
transferee to the extent that it is engaging in such functions.
"(c) Exclusion for Grants of Security Interests. Subsection (a) shall
not apply to-
"(1) a transfer of copyright ownership consisting solely of a mortgage,
hypothecation, or other security interest; or
"(2) a subsequent transfer of the copyright ownership secured by the
security interest described in paragraph (1) by or under the authority
of the secured party, including a transfer through the exercise of the
secured party's rights or remedies as a secured party, or by a
subsequent transferee.
"The exclusion under this subsection shall not affect any rights or
remedies under law or contract.
"(d) Deferral Pending Resolution of Bona Fide Dispute.
"A transferee on which obligations are imposed under subsection (a) by
virtue of paragraph (1) of that subsection may elect to defer
performance of such obligations that are subject to a bona fide dispute
between a union and a prior transferor until that dispute is resolved,
except that such deferral shall not stay accrual of any union claims due
under an applicable collective bargaining agreement.
"(e) Scope of Obligations Determined by Private Agreement. Nothing in
this section shall expand or diminish the rights, obligations, or
remedies of any person under the collective bargaining agreements or
assumption agreements referred to in this section.
"(f) Failure to Notify. If the transferor under subsection (a) fails to
notify the transferee under subsection (a) of applicable collective
bargaining obligations before the execution of the transfer instrument,
and subsection (a) is made applicable to the transferee solely by virtue
of subsection (a)(1)(B), the transferor shall be liable to the
transferee for any damages suffered by the transferee as a result of the
failure to notify.
"(g) Determination of Disputes and Claims. Any dispute concerning the
application of subsections (a) through (f) shall be determined by an
action in United States district court, and the court in its discretion
may allow the recovery of full costs by or against any party and may
also award a reasonable attorney's fee to the prevailing party as part
of the costs.
"(h) Study. The Comptroller General, in consultation with the Register
of Copyrights, shall conduct a study of the conditions in the motion
picture industry that gave rise to this section, and the impact of this
section on the motion picture industry. The Comptroller General shall
report the findings of the study to the Congress within 2 years after
the effective date of this chapter."
* * * * * * *
SEC. 407. EFFECTIVE DATE.
Except as otherwise provided in this title, this title and the
amendments made by this title shall take effect on the date of the
enactment of this Act.
* * * * * * *
Title V-Protection of Certain Original Designs
SEC. 501. SHORT TITLE.
This Act may be referred to as the "Vessel Hull Design Protection Act".
* * * * * * *
SEC. 503. CONFORMING AMENDMENTS.
* * * * * * *
(b) Jurisdictions of District Courts Over Design Actions. (1) Section
1338(c) of title 28, United States Code, is amended by inserting ", and
to exclusive rights in designs under chapter 13 of title 17," after
"title 17".
(2)(A) The section heading for section 1338 of title 28, United States
Code, is amended by inserting "designs," after "mask works,".
(B) The item relating to section 1338 in the table of sections at the
beginning of chapter 85 of title 28, United States Code, is amended by
inserting "designs," after "mask works,".
(c) Place for Bringing Design Actions. (1) Section 1400(a) of title 28,
United States Code, is amended by inserting "or designs" after "mask
works".
(2) The section heading for section 1400 of title 28, United States Code
is amended to read as follows:
"Patents and copyrights, mask works, and designs".
(3) The item relating to section 1400 in the table of sections at the
beginning of chapter 87 of title 28, United States Code, is amended to
read as follows:
"1400. Patents and copyrights, mask works, and designs.".
(d) Actions Against the United States. Section 1498(e) of title 28,
United States Code, is amended by inserting ", and to exclusive rights
in designs under chapter 13 of title 17," after "title 17".
SEC. 504. JOINT STUDY OF THE EFFECT OF THIS TITLE [2]
(a) In General. Not later than November 1, 2003, the Register of
Copyrights and the Commissioner of Patents and Trademarks shall submit
to the Committees on the Judiciary of the Senate and the House of
Representatives a joint report evaluating the effect of the amendments
made by this title.
(b) Elements for Consideration. In carrying out subsection (a), the
Register of Copyrights and the Commissioner of Patents and Trademarks
shall consider-
(1) the extent to which the amendments made by this title has been
effective in suppressing infringement of the design of vessel hulls;
(2) the extent to which the registration provided for in chapter 13 of
title 17, United States Code, as added by this title, has been utilized;
(3) the extent to which the creation of new designs of vessel hulls have
been encouraged by the amendments made by this title;
(4) the effect, if any, of the amendments made by this title on the
price of vessels with hulls protected under such amendments; and
(5) such other considerations as the Register and the Commissioner may
deem relevant to accomplish the purposes of the evaluation conducted
under subsection (a).
SEC. 505. EFFECTIVE DATE. [3]
The amendments made by sections 502 and 503 shall take effect on the
date of the enactment of this Act.
-------------------
Appendix V Endnotes
1 Part V of the Appendix contains provisions from the Digital
Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, that do
not amend title 17 of the *United States Code.*
2 The Satellite Home Viewer Improvement Act of 1999 amended section
504(a) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at
1501A-593.
3 The Intellectual Property and Communications Omnibus Reform Act of
1999 amended section 505 by deleting everything at the end of the
sentence, after "Act." Pub. L. No. 106-113, 113 Stat. 1501, app. I at
1501A-593.
------------------------------------------------------------------------
Appendix VI. Definition of "Berne Convention Work"
The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 deleted the definition of "Berne Convention
work" from section 101. [1] Pub. L. No. 105-304, 112 Stat. 2861. The
definition of Berne Convention work, as deleted, is as follows:
A work is a "Berne Convention work" if-
(1) in the case of an unpublished work, one or more of the authors is a
national of a nation adhering to the Berne Convention, or in the case of
a published work, one or more of the authors is a national of a nation
adhering to the Berne Convention on the date of first publication;
(2) the work was first published in a nation adhering to the Berne
Convention, or was simultaneously first published in a nation adhering
to the Berne convention and in a foreign nation that does not adhere to
the Berne Convention;
(3) in the case of an audiovisual work-
(A) if one or more of the authors is a legal entity, that author has its
headquarters in a nation adhering to the Berne Convention; or
(B) if one or more of the authors is an individual, that author is
domiciled, or has his or her habitual residence in, a nation adhering to
the Berne Convention; or
(4) in the case of a pictorial, graphic, or sculptural work that is
incorporated in a building or other structure, the building or structure
is located in a nation adhering to the Berne Convention; or
(5) in the case of an architectural work embodied in a building, such
building is erected in a country adhering to the Berne Convention.
For purposes of paragraph (1), an author who is domiciled in or has his
or her habitual residence in, a nation adhering to the Berne Convention
is considered to be a national of that nation. For purposes of paragraph
(2), a work is considered to have been simultaneously published in two
or more nations if its dates of publication are within 30 days of one
another.
-------------------
Appendix VI Endnote
1 For a discussion of the legislative history of the definition of
"Berne Convention work," see endnote 2, chapter 1, *supra.*
------------------------------------------------------------------------
Appendix VII. Selected Provisions of the U.S. Code Relating to Copyright
Title 18 - Crimes and Criminal Procedure
Part I - Crimes
Chapter 113 - Stolen Property
* * * * * * *
Sec. 2318. Trafficking in counterfeit labels for phonorecords, copies
of computer programs or computer program documentation or packaging, and
copies of motion pictures or other audio visual works, and trafficking
in counterfeit computer program documentation or packaging. [1]
(a) Whoever, in any of the circumstances described in subsection (c) of
this section, knowingly traffics in a counterfeit label affixed or
designed to be affixed to a phonorecord, or a copy of a computer program
or documentation or packaging for a computer program, or a copy of a
motion picture or other audiovisual work, and whoever, in any of the
circumstances described in subsection (c) of this section, knowingly
traffics in counterfeit documentation or packaging for a computer
program, shall be fined under this title or imprisoned for not more than
five years, or both.
(b) As used in this section-
(1) the term "counterfeit label" means an identifying label or container
that appears to be genuine, but is not;
(2) the term "traffic" means to transport, transfer or otherwise dispose
of, to another, as consideration for anything of value or to make or
obtain control of with intent to so transport, transfer or dispose of;
and
(3) the terms "copy", "phonorecord", "motion picture", "computer
program", and "audiovisual work" have, respectively, the meanings given
those terms in section 101 (relating to definitions) of title 17.
(c) The circumstances referred to in subsection (a) of this section are-
(1) the offense is committed within the special maritime and territorial
jurisdiction of the United States; or within the special aircraft
jurisdiction of the United States (as defined in section 46501 of title
49);
(2) the mail or a facility of interstate or foreign commerce is used or
intended to be used in the commission of the offense;
(3) the counterfeit label is affixed to or encloses, or is designed to
be affixed to or enclose, a copy of a copyrighted computer program or
copyrighted documentation or packaging for a computer program, a
copyrighted motion picture or other audiovisual work, or a phonorecord
of a copyrighted sound recording; or
(4) the counterfeited documentation or packaging for a computer program
is copyrighted.
(d) When any person is convicted of any violation of subsection (a), the
court in its judgment of conviction shall in addition to the penalty
therein prescribed, order the forfeiture and destruction or other
disposition of all counterfeit labels and all articles to which
counterfeit labels have been affixed or which were intended to have had
such labels affixed.
(e) Except to the extent they are inconsistent with the provisions of
this title, all provisions of section 509, title 17, United States Code,
are applicable to violations of subsection (a).
Sec. 2319. Criminal infringement of a copyright [2]
(a) Whoever violates section 506(a) (relating to criminal offenses) of
title 17 shall be punished as provided in subsections (b) and (c) of
this section and such penalties shall be in addition to any other
provisions of title 17 or any other law.
(b) Any person who commits an offense under section 506 (a)(1) of title
17-
(1) shall be imprisoned not more than 5 years, or fined in the amount
set forth in this title, or both, if the offense consists of the
reproduction or distribution, including by electronic means, during any
180-day period, of at least 10 copies or phonorecords, of 1 or more
copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount
set forth in this title, or both, if the offense is a second or
subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set
forth in this title, or both, in any other case.
(c) Any person who commits an offense under section 506(a)(2) of title
17, United States Code-
(1) shall be imprisoned not more than 3 years, or fined in the amount
set forth in this title, or both, if the offense consists of the
reproduction or distribution of 10 or more copies or phonorecords of 1
or more copyrighted works, which have a total retail value of $2,500 or
more;
(2) shall be imprisoned not more than 6 years, or fined in the amount
set forth in this title, or both, if the offense is a second or
subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set
forth in this title, or both, if the offense consists of the
reproduction or distribution of 1 or more copies or phonorecords of 1 or
more copyrighted works, which have a total retail value of more than
$1,000.
(d) (1) During preparation of the presentence report pursuant to Rule
32(c) of the Federal Rules of Criminal Procedure, victims of the offense
shall be permitted to submit, and the probation officer shall receive, a
victim impact statement that identifies the victim of the offense and
the extent and scope of the injury and loss suffered by the victim,
including the estimated economic impact of the offense on that victim.
(2) Persons permitted to submit victim impact statements shall include-
(A) producers and sellers of legitimate works affected by conduct
involved in the offense;
(B) holders of intellectual property rights in such works; and
(C) the legal representatives of such producers, sellers, and holders.
(e) As used in this section-
(1) the terms "phonorecord" and "copies" have, respectively, the
meanings set forth in section 101 (relating to definitions) of title 17;
and
(2) the terms "reproduction" and "distribution" refer to the exclusive
rights of a copyright owner under clauses (1) and (3) respectively of
section 106 (relating to exclusive rights in copyrighted works), as
limited by sections 107 through 120, of title 17.
Sec. 2319A. Unauthorized fixation of and trafficking in sound recordings
and music videos of live musical performances [3]
(a) Offense. Whoever, without the consent of the performer or performers
involved, knowingly and for purposes of commercial advantage or private
financial gain-
(1) fixes the sounds or sounds and images of a live musical performance
in a copy or phonorecord, or reproduces copies or phonorecords of such a
performance from an unauthorized fixation;
(2) transmits or otherwise communicates to the public the sounds or
sounds and images of a live musical performance; or
(3) distributes or offers to distribute, sells or offers to sell, rents
or offers to rent, or traffics in any copy or phonorecord fixed as
described in paragraph (1), regardless of whether the fixations occurred
in the United States;
shall be imprisoned for not more than 5 years or fined in the amount set
forth in this title, or both, or if the offense is a second or
subsequent offense, shall be imprisoned for not more than 10 years or
fined in the amount set forth in this title, or both.
(b) Forfeiture and Destruction. When a person is convicted of a
violation of subsection (a), the court shall order the forfeiture and
destruction of any copies or phonorecords created in violation thereof,
as well as any plates, molds, matrices, masters, tapes, and film
negatives by means of which such copies or phonorecords may be made. The
court may also, in its discretion, order the forfeiture and destruction
of any other equipment by means of which such copies or phonorecords may
be reproduced, taking into account the nature, scope, and
proportionality of the use of the equipment in the offense.
(c) Seizure and Forfeiture. If copies or phonorecords of sounds or
sounds and images of a live musical performance are fixed outside of the
United States without the consent of the performer or performers
involved, such copies or phonorecords are subject to seizure and
forfeiture in the United States in the same manner as property imported
in violation of the customs laws. The Secretary of the Treasury shall,
not later than 60 days after the date of the enactment of the Uruguay
Round Agreements Act, issue regulations to carry out this subsection,
including regulations by which any performer may, upon payment of a
specified fee, be entitled to notification by the United States Customs
Service of the importation of copies or phonorecords that appear to
consist of unauthorized fixations of the sounds or sounds and images of
a live musical performance.
(d) Victim Impact Statement.
(1) During preparation of the presentence report pursuant to Rule 32(c)
of the Federal Rules of Criminal Procedure, victims of the offense shall
be permitted to submit, and the probation officer shall receive, a
victim impact statement that identifies the victim of the offense and
the extent and scope of the injury and loss suffered by the victim,
including the estimated economic impact of the offense on that victim.
(2) Persons permitted to submit victim impact statements shall include-
(A) producers and sellers of legitimate works affected by conduct
involved in the offense;
(B) holders of intellectual property rights in such works; and
(C) the legal representatives of such producers, sellers, and holders.
(e) Definitions. As used in this section-
(1) the terms "copy", "fixed", "musical work", "phonorecord",
"reproduce", "sound recordings", and "transmit" mean those terms within
the meaning of title 17; and
(2) the term "traffic in" means transport, transfer, or otherwise
dispose of, to another, as consideration for anything of value, or make
or obtain control of with intent to transport, transfer, or dispose of.
(f) Applicability. This section shall apply to any Act or Acts that
occur on or after the date of the enactment of the Uruguay Round
Agreements Act.
* * * * * * *
Title 28 - Judiciary and Judicial Procedure
Part IV - Jurisdiction and Venue
Chapter 85 - District Courts; Jurisdiction
* * * * * * *
Sec. 1338. Patents, plant variety protection, copyrights, mask works,
trade-marks, and unfair competition {4}
(a) The district courts shall have original jurisdiction of any civil
action arising under any Act of Congress relating to patents, plant
variety protection, copyrights and trade-marks. Such jurisdiction shall
be exclusive of the courts of the states in patent, plant variety
protection and copyright cases.
(b) The district courts shall have original jurisdiction of any civil
action asserting a claim of unfair competition when joined with a
substantial and related claim under the copyright, patent, plant variety
protection or trade-mark laws.
(c) Subsections (a) and (b) apply to exclusive rights in mask works
under chapter 9 of title 17 to the same extent as such subsections apply
to copyrights.
* * * * * * * * *
Chapter 91 - United States Court of Federal Claims
* * * * * * * * *
Sec. 1498. Patent and copyright cases [5]
* * * * * * * * *
(b) Hereafter, whenever the copyright in any work protected under the
copyright laws of the United States shall be infringed by the United
States, by a corporation owned or controlled by the United States, or by
a contractor, subcontractor, or any person, firm, or corporation acting
for the Government and with the authorization or consent of the
Government, the exclusive action which may be brought for such
infringement shall be an action by the copyright owner against the
United States in the Court of Federal Claims for the recovery of his
reasonable and entire compensation as damages for such infringement,
including the minimum statutory damages as set forth in section 504(c)
of title 17, United States Code: Provided, That a Government employee
shall have a right of action against the Government under this
subsection except where he was in a position to order, influence, or
induce use of the copyrighted work by the Government: Provided, however,
That this subsection shall not confer a right of action on any copyright
owner or any assignee of such owner with respect to any copyrighted work
prepared by a person while in the employment or service of the United
States, where the copyrighted work was prepared as a part of the
official functions of the employee, or in the preparation of which
Government time, material, or facilities were used: And provided
further, That before such action against the United States has been
instituted the appropriate corporation owned or controlled by the United
States or the head of the appropriate department or agency of the
Government, as the case may be, is authorized to enter into an agreement
with the copyright owner in full settlement and compromise for the
damages accruing to him by reason of such infringement and to settle the
claim administratively out of available appropriations.
Except as otherwise provided by law, no recovery shall be had for any
infringement of a copyright covered by this subsection committed more
than three years prior to the filing of the complaint or counterclaim
for infringement in the action, except that the period between the date
of receipt of a written claim for compensation by the Department or
agency of the Government or corporation owned or controlled by the
United States, as the case may be, having authority to settle such claim
and the date of mailing by the Government of a notice to the claimant
that his claim has been denied shall not be counted as a part of the
three years, unless suit is brought before the last-mentioned date.
(c) The provisions of this section shall not apply to any claim arising
in a foreign country.
* * * * * * * * * *
(e) Subsections (b) and (c) of this section apply to exclusive rights in
mask works under chapter 9 of title 17 to the same extent as such
subsections apply to copyrights.
* * * * * * * * * *
Title 44 - Public Printing and Documents
Chapter 21 - National Archives and Records Administration
* * * * * * * * * *
Sec. 2117. Limitation on liability [6]
When letters and other intellectual productions (exclusive of patented
material, published works under copyright protection, and unpublished
works for which copyright registration has been made) come into the
custody or possession of the Archivist, the United States or its agents
are not liable for infringement of copyright or analogous rights arising
out of use of the materials for display, inspection, research,
reproduction, or other purposes.
---------------------
Appendix VII Endnotes
1 In 1962, section 2318, entitled "Transportation, sale, or receipt of
phonograph records bearing forged or counterfeit labels," was added to
title 18 of the *United States Code.* Pub. L. No. 87-773, 76 Stat. 775.
In 1974, section 2318 was amended to change the penalties. Pub. L. No.
93-573, 88 Stat. 1873. The Copyright Act of 1976 revised section 2318
with an amendment in the nature of a substitute. Pub. L. No. 94-553, 90
Stat. 2541, 2600. The Piracy and Counterfeiting Amendments Act of 1982
again revised section 2318 with an amendment in the nature of a
substitute that included a new title, "Trafficking in counterfeit labels
for phonorecords, and copies of motion pictures or other audiovisual
works." Pub. L. No. 97-180, 96 Stat. 91. The Crime Control Act of 1990
made a technical amendment to section 2318 to delete the comma after
"phonorecords" in the title. Pub. L. No. 101-647, 104 Stat. 4789, 4928.
In 1994, section 2318(c)(1) was amended by inserting "section 46501 of
title 49" in lieu of "section 101 of the Federal Aviation Act of 1958.
Pub. L. No. 103-272, 108 Stat. 745, 1374. The Violent Crime Control and
Law Enforcement Act of 1994 amended section 2318(a) by inserting "under
this title" in lieu of "not more than $250,000." Pub. L. No. 103-322,
108 Stat. 1796, 2148. (As provided in 18 U.S.C. Sec. 3571, the maximum
fine for an individual is $250,000, and the maximum fine for an
organization is $500,000.)
The Anticounterfeiting Consumer Protection Act of 1996 amended section
2318 by changing the title, by amending subsection (a) to insert "a
computer program or documentation" through to "knowingly traffics in
counterfeit documentation or packaging for a computer program" in lieu
of "a motion picture or other audiovisual work" and by amending
subsection (b)(3) to insert "computer program" after "motion picture."
Pub. L. No. 104-153, 110 Stat. 1386. The Act also amended section
2318(c) by inserting "a copy of a copyrighted computer program or
copyrighted documentation or packaging for a computer program" into
paragraph (3) and by adding paragraph (4). *Id.* at 1387.
2 The Piracy and Counterfeiting Amendments Act of 1982 added section
2319 to title 18 of the *United States Code.* Pub. L. No. 97-180, 96
Stat. 91, 92. In 1992, section 2319 was amended by substituting a new
subsection (b), by deleting "sound recording," "motion picture" and
"audiovisual work" from subsection (c)(1) and by substituting "120" for
"118" in subsection (c)(2). Pub. L. No. 102-561, 106 Stat. 4233. In
1997, a technical amendment corrected the spelling of "last" in
subsection (b)(1) to "least." Pub. L. No. 105-80, 111 Stat. 1529, 1536.
In 1997, the No Electronic Theft Act amended section 2319 of title 18 as
follows: 1) in subsection (a) by inserting "and (c)" after "subsection
(b),"; 2) in subsection (b), in the matter preceding paragraph (1), by
inserting "section 506(a)(1) of title 17" in lieu of "subsection (a) of
this section,"; 3) in subsection (b)(1) by inserting "including by
electronic means" and by inserting "which have a total retail value" in
lieu of "with a retail value," 4) by redesignating subsection (c) as
subsection (e); and 5) by adding new subsections (c) and (d). Pub. L.
No. 105-147, 111 Stat. 2678. The Act also directed the United States
Sentencing Commission to "ensure that the applicable guideline range for
a defendant convicted of a crime against intellectual property . . . is
sufficiently stringent to deter such a crime" and to "ensure that the
guidelines provide for consideration of the retail value and quantity of
the items with respect to which the crime against intellectual property
was committed."* Id.* See also endnote 5, chapter 5, *supra.*
3 In 1994, the Uruguay Round Agreements Act added section 2319A to
title 18 of the *United States Code.* Pub. L. No. 103-465, 108 Stat.
4809, 4974. In 1997, the No Electronic Theft Act amended section 2319A
by redesignating subsections (d) and (e) as subsections (e) and (f),
respectively, and by adding subsection (d). Pub. L. No. 105-147, 111
Stat. 2678. See also endnote 2, *supra*, regarding the United States
Sentencing Commission.
4 In 1948, section 1338, entitled "Patents, copyrights, trade-marks,
and unfair competition," was added to title 28 of the *United States
Code.* Pub. L. No. 773, 62 Stat. 869, 931. In 1970, the title of section
1338 and the text of subsection (b) were amended to insert "plant
variety protection" after "patent." Pub. L. No. 91-577, 84 Stat. 1542,
1559. In 1988, the Judicial Improvements and Access to Justice Act
amended section 1338 by adding "mask works" to the title and by adding
subsection (c). Pub. L. No. 100-702, 102 Stat. 4642, 4671.
5 In 1960, section 1498 of the *United States Code* was amended to add
subsections (b) and (c). Pub. L. No. 86-726, 74 Stat. 855. The Copyright
Act of 1976 amended section 1498(b) to insert "section 504(c) of title
17" in lieu of "section 101(b) of title 17." Pub. L. No. 94-553, 90
Stat. 2541, 2599. The Federal Courts Improvement Act of 1982 amended
section 1498(a) to insert "United States Claims Court" in lieu of "Court
of Claims" and, in subsections (b) and (d), to insert "Claims Court" in
lieu of "Court of Claims," wherever it appeared. Pub. L. No. 97-164, 96
Stat. 25, 40. In 1988, the Judicial Improvements and Access to Justice
Act amended section 1498 by adding subsection (e). Pub. L. No. 100-702,
102 Stat. 4642, 4671. The Federal Courts Administration Act of 1992
amended section 1498 by inserting "United States Court of Federal
Claims" in lieu of "United States Claims Court," wherever it appeared,
and by inserting "Court of Federal Claims" in lieu of "Claims Court,"
wherever it appeared. Pub. L. No. 102-572, 106 Stat. 4506, 4516. In
1997, the No Electronic Theft (NET) Act amended section 1498(b) to
insert "action which may be brought for such infringement shall be an
action by the copyright owner" in lieu of "remedy of the owner of such
copyright shall be by action." Pub. L. No. 105-147, 111 Stat. 2678,
2680.
6 In 1968, section 2113, entitled "Limitation on liability," was added
to title 44 of the *United States Code.* Pub. L. No. 90-620, 82 Stat.
1238, 1291. The Copyright Act of 1976 amended section 2113 in its
entirety. Pub. L. No. 94-553, 90 Stat. 2541, 2599. The National Archives
and Records Administration Act of 1984 amended section 2113 by
redesignating it as section 2117 and by inserting "Archivist" in lieu of
"Administrator of General Services." Pub. L. No. 98-497, 98 Stat. 2280
and 2286.
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09-Aug-2001
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