603 lines
24 KiB
Plaintext
603 lines
24 KiB
Plaintext
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Coalition for Networked Information
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Information Policies: A Compilation of Position Statements, Principles,
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Statutes, and Other Pertinent Statements
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U.S. Laws, Statutes
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Berne Convention Implementation Act of 1988
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Source: Berne Convention Implementation Act of 1988, 17 USC 101
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note. United States Code Congressional and Administrative News,
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100th Congress--Second Session, Volume 2, West Publishing Co., St.
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Paul, Minn., 102 Stat. 2853-2861.
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(An Act to amend title 17, United States Code, to implement the Berne
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Convention for the Protection of Literary and Artistic Works, as revised
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at Paris on July 24, 1971, and for other purposes.)
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Be it enacted by the Senate and House of Representatives of the United
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States of America in Congress assembled.
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Section 1. Short Title and References to Title 17, United States Code.
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(a) Short Title.--This Act, may be cited as the "Berne Convention
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Implementation Act of 1988".
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(b) References to Title 17, United States Code.--Whenever in this Act
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an amendment or repeal is expressed in terms of an amendment to or a repeal
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of a section or other provision, the reference shall be considered to be
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made to a section or other provision of title 17, United States Code.
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Section 2. Declarations.
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The Congress makes the following declarations:
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(1) The Convention for the Protection of Literary and Artistic
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Works, signed at Berne, Switzerland, on September 9, 1886, and all
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acts, protocols, and revisions thereto (hereafter in this Act referred to as
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the "Berne Convention") are not self-executing under the Constitution
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and laws of the United States.
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(2) The obligations of the United States under the Berne
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Convention may be performed only pursuant to appropriate domestic
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law.
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(3) The amendments made by this Act, together with the law
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as it exists on the date of the enactment of this Act, satisfy the
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obligations of the United States in adhering to the Berne Convention
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and no further rights or interests shall be recognized or created for that
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purpose.
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Section 3. Construction of the Berne Convention.
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(a) Relationship with Domestic Law.--The provisions of the Berne
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Convention--
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(1) shall be given effect under title 17, as amended by this
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Act, and any other relevant provision of Federal or State law, including
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the common law; and
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(2) shall not be enforceable in any action brought pursuant to
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the provisions of the Berne Convention itself.
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(b) Certain Rights Not Affected.--The provisions of the Berne
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Convention, the adherence of the United States thereto, and satisfaction of United
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States obligations thereunder, do no expand or reduce any right of an author of a
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work, whether claimed under Federal, State, or the common law--
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(1) to claim authorship of the work; or
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(2) to object to any distortion, mutilation, or other
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modification of, or other derogatory action in relation to, the work, that
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would prejudice the author's honor or reputation.
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Section 4. Subject Matter and Scope of Copyrights.
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(a) Subject and Scope.--Chapter 1 is amended--
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(1) in section 101--
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(A) in the definition of "Pictorial, graphic, and
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sculptural works" by striking out in the first sentence
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"technical drawings, diagrams, and models" and inserting in
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lieu thereof "diagrams, models, and technical drawings,
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including architectural plans";
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(B) by inserting after the definition of "Audiovisual
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works", the following: "The 'Berne Convention' is the
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Convention for the Protection of Literary and Artistic Works,
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signed at Berne, Switzerland, on September 8, 1886, and all
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acts, protocols, and revisions thereto.
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"A work is a 'Berne Convention work' if--
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"(1) in the case of an unpublished work, one
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or more of the authors is a national of a nation
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adhering to the Berne Convention, or in the case of a
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published work, one or more of the authors is a
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national of a nation adhering to the Berne Convention
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on the date of first publication;
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"(2) the work was first published in a nation
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adhering to the Berne Convention, or was
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simultaneously first published in a nation adhering to
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the Berne Convention and in a foreign nation that
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does not adhere to the Berne Convention;
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"(3) in the case of an audiovisual work--
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"(A) if one or more of the authors
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is a legal entity, that the author has its
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headquarters in a nation adhering to the
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Berne Convention; or
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"(B) if one or more of the authors is
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an individual, that author is domiciled, or
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has his or her habitual residence in, a
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nation adhering to the Berne Convention;
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or
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"(4) in the case of a pictorial, graphic, or
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sculptural work that is incorporated in a building or
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other structure, the building or structure is located in
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a nation adhering to the Berne Convention.
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For purposes of paragraph (1), an author who is
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domiciled in or has his or her habitual residence in, a nation
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adhering to the Berne Convention is considered to be a national
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of that nation. For purposes of paragraph (2), a work is
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considered to have been simultaneously published in two or
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more nations if its dates of publication are within 30 days of
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one another,"; and
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(C) by inserting after the definition of "Copyright
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owner", the following:
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"The 'country of origin' of a Berne Convention work, for
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purposes of section 411, is the United States if--
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"(1) in the case of a published work, the work
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is first published--
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"(A) in the United States;
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"(B) simultaneously in the United States
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and another nation or nations adhering to the Berne
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Convention, whose law grants a term of copyright
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protection that is the same as or longer than the term
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provided in the United States;
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"(C) simultaneously in the United States
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and a foreign nation that does not adhere to the Berne
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Convention; or
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"(D) in a foreign nation that does not
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adhere to the Berne Convention, and all of the authors
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of the work are nationals, domiciliaries, or habitual
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residents of, or in the case of an audiovisual work
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legal entities with headquarters in, the United States;
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"(2) in the case of an unpublished work, all the
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authors of the work are nationals, domiciliaries, or
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habitual residents of the United States, or, in the case of an
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unpublished audiovisual work, all the authors are legal
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entities with headquarters in the United States; or
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"(3) in the case of a pictorial, graphic, or
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sculptural work incorporated in a building or structure, the
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building or structure is located in the United States.
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For the purposes of section 411, the 'country of origin' of any other
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Berne Convention work is not the United States.";
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(2) in section 104(b)--
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(A) by redesignating paragraph (4) as paragraph (5); and
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(B) by inserting after paragraph (3) the following new
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paragraph: "(4) the work is a Berne Convention work; or";
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(3) in section 104 by adding at the end thereof the following:
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"(c) Effect of Berne Convention.--No right or interest in a
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work eligible for protection under this title may be claimed by virtue
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or, or in reliance upon; the provisions of the Berne Convention, or the
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adherence of the United States thereto. Any rights in a work eligible
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for protection under this title that derive from this title, other Federal or
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State statutes, or the common law, shall not be expanded or reduced by
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virtue of, or in reliance upon, the provisions of the Berne Convention,
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or the adherence of the United States thereto."; and
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(4) by inserting after section 116 the following new section:
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"Section 116A. Negotiated licenses for public performances by means of coin-
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operated phonorecord players
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"(a) Applicability of Section.--This section applies to any nondramatic
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musical work embodied in a phonorecord.
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"(b) Limitation on Exclusive Right if Licenses Not Negotiated.--
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"(1) Applicability.--In the case of a work to which this section
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applies, the exclusive right under clause (4) of section 106 to perform
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the work publicly by means of a coin-operated phonorecord player is
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limited by section 116 to the extent provided in this section.
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"(2) Determination by Copyright Royalty Tribunal.--The
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Copyright Royalty Tribunal, at the end of the 1-year period beginning
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on the effective date of the Berne Convention Implementation Act of
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1988, and periodically thereafter to the extent necessary to carry out
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subsection (f), shall determine whether or not negotiated licenses
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authorized by subsection (c) are in effect so as to provide permission to
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use a quantity of musical works not substantially smaller than the
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quantity of such works performed on coin-operated phonorecord players
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during the 1-year period ending on the effective date of that Act. If the
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Copyright Royalty Tribunal determines that such negotiated licenses are
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not so in effect, the Tribunal shall, upon making the determination,
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publish the determination in the Federal Register. Upon such
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publication, section 116 shall apply with respect to musical works that
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are not the subject of such negotiated licenses.
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"(c) Negotiated Licenses.--
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"(1) Authority for Negotiations.--Any owners of copyright in
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works to which this section applies and any operators of coin-operated
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phonorecord players may negotiate and agree upon the terms and rates of
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royalty payments for the performance of such works and the
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proportionate division of fees paid among copyright owners, and may
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designate common agents to negotiate, agree to, pay, or receive such
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royalty payments.
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"(2) Arbitration.--Parties to such a negotiation, within such
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time as may be specified by the Copyright Royalty Tribunal by
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regulation, may determine the result of the negotiation by arbitration.
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Such arbitration shall be governed by the provisions of title 9, to the
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extent such title is not inconsistent with this section. The parties shall
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give notice to the Copyright Royalty Tribunal of any determination
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reached by arbitration and any such determination shall, as between the
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parties to the arbitration, be dispositive of the issues to which it relates.
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"(d) License Agreements Superior to Copyright Royalty
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Tribunal Determinations.--License agreements between one or more
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copyright owners and one or more operators of coin-operated
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phonorecord players, which are negotiated in accordance with subsection
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(c), shall be given effect in lieu of any otherwise applicable
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determination by the Copyright Royalty Tribunal.
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"(e) Negotiation Schedule.--Not later than 60 days after the
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effective date of the Berne Convention Implementation Act of 1988, if
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the Chairman of the copyright Royalty Tribunal has not received
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notice, from copyright owners and operators of coin-operated
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phonorecord players referred to in subsection (c)(1), of the date and
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location of the first meeting between such copyright owners and such
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operators to commence negotiations authorized by subsection (c), the
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Chairman shall announce the date and location of such meeting. Such
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meeting may not be held more than 90 days after the effective date of
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such Act.
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"(f) Copyright Royalty Tribunal To Suspend Various
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Activities.--The Copyright Royalty Tribunal shall not conduct any rate-
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making activity with respect to coin-operated phonorecord players
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unless, at any time more than one year after the effective date of the
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Berne Convention Implementation Act of 1988, the negotiated licenses
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adopted by the parties under this section do not provide permission to
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use a quantity of such works performed on coin-operated phonorecord
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players during the one-year period ending on the effective date of such
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Act.
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"(g) Transition Provisions; Retention of Copyright Royalty
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Tribunal Jurisdiction.--Until such time as licensing provisions are
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determined by the parties under this section, the terms of the
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compulsory license under section 116, with respect to the public
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performance of nondramatic musical works by means of coin-operated
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phonorecord players, which is in effect on the day before the effective
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date of the Berne Convention Implementation Act of 1988, shall remain
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in force. If a negotiated license authorized by this section comes into
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force so as to supersede previous determinations of the Copyright
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Royalty Tribunal, as provided in subsection (d), but thereafter is
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terminated or expires and is not replaced by another licensing
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agreement, then section 116 shall be effective with respect to musical
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works that were the subject of such terminated or expired licenses.".
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(b) Technical Amendments.--(1) Section 116 is amended--
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(A) by amending the section heading to read as follows:
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"Section 116. Scope of exclusive rights in nondramatic musical works:
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Compulsory licenses for public performance by means of coin-operated
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phonorecord players";
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(B) in subsection (a) in the matter preceding paragraph
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(1), by inserting after "in a phonorecord," the following: "the
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performance of which is subject to this section as provided in
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section 116A,"; and
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(C) in subsection (e), by inserting "and section 116A"
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after "As used in this section".
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(2) The table of sections at the beginning of chapter 1 is amended by
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striking out the item relating to section 116, and inserting in lieu thereof the
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following:
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"116. Scope of exclusive rights in nondramatic musical works: Compulsory
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licenses for public performances by means of coin-operated phonorecord
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players."
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"116A. Negotiated licenses for public performances by means of coin-operated
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phonorecord players.".
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Section 5. Recordation.
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Section 205 is amended--
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(1) by striking out subsection (d); and
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(2) by redesignating subsections (e) and (f) as subsections (d)
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and (e), respectively.
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Section 6. Preemption with Respect to Other Laws Not Affected.
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Section 301 is amended by adding at the end thereof the following:
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"(e) The scope of Federal preemption under this section is not affected
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by the adherence of the United States to the Berne Convention or the satisfaction
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of obligations of the United States thereunder.".
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Section 7. Notice of Copyright.
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(a) Visually Perceptible Copies.--Section 401 is amended--
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(1) in subsection (a), by amending the subsection heading to
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read as follows:
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"(a) General Provisions.--";
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(2) in subsection (a), by striking out "shall be placed on all"
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and inserting in lieu thereof "may be placed on";
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(3) in subsection (b), by striking out "The notice appearing on
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the copies: and inserting in lieu thereof "If a notice appears on the
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copies, it"; and
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(4) by adding at the end of the following:
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"(d) Evidentiary Weight of Notice.--If a notice of copyright in the form
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and position specified by this section appears on the published copy or copies to
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which a defendant in a copyright infringement suit had access, then no weight
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shall be given to such a defendant's interposition of a defense based on innocent
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infringement in mitigation of actual or statutory damages, except as provided in
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the last sentence of section 504(c)(2).".
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(b) Phonorecords of Sound Recordings.--Section 402 is amended--
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(1) in subsection (a), by amending the subsection heading to
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read as follows:
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"(a) General Provisions.--";
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(2) in subsection (a), by striking out "shall be placed on all"
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and inserting in lieu thereof "may be placed on";
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(3) in subsection (b), by striking out "The notice appearing on
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the phonorecords" and inserting in lieu thereof "If a notice appears on
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the phonorecords, it"; and
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(4) by adding at the end thereof the following new subsection:
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"(d) Evidentiary Weight of Notice.--If a notice of copyright in the form
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and position specified by this section appears on the published phonorecord or
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phonorecords to which a defendant in a copyright infringement suit had access,
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then no weight shall be given to such a defendant's interposition of a defense
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based on innocent infringement in mitigation of actual or statutory damages,
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except as provided in the last sentence of section 504(c)(2).".
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(c) Publications Incorporating United States Government Works.--
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Section 403 is amended to read as follows:
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"Sections 401(d) and 402(d) shall not apply to a work published in
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copies or phonorecords consisting predominantly of one or more works of the
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United States Government unless the notice of copyright appearing on the
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published copies or phonorecords to which a defendant in the copyright
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infringement suit had access includes a statement identifying, either affirmatively
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or negatively, those portions of the copies or phonorecords embodying any work
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or works protected under this title.".
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(d) Notice of Copyright; Contribution to Collective Works.--Section
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404 is amended--
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(1) in subsection (a), by striking out "to satisfy the
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requirements of sections 401 through 403", and inserting in lieu thereof
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"to invoke the provisions of section 401(d) or 402(d), as applicable";
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and
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(2) in subsection (b), by striking out "Where" and inserting in
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lieu thereof "With respect to copies and phonorecords publicly
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distributed by authority of the copyright owner before the effective date
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of the Berne Convention Implementation Act of 1988, where".
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(e) Omission of Notice.--Section 405 is amended--
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(1) in subsection (a), by striking out "The omission of the
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copyright notice prescribed by" and inserting in lieu thereof "With
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respect to copies and phonorecords publicly distributed by authority of
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the copyright owner before the effective date of the Berne Convention
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Implementation Act of 1988, the omission of the copyright notice
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described in";
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(2) in subsection (b), by striking out "omitted," in the first
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sentence and inserting in lieu thereof "omitted and which was publicly
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distributed by authority of the copyright owner before the effective date
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of the Berne Convention Implementation Act of 1988,"; and
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(3) by amending the section heading to read as follows:
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"Section 405. Notice of copyright: Omission of notice on certain copies and
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phonorecords"
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(f) Error in Name or Date.--Section 406 is amended--
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(1) in subsection (a) by striking out "Where" and inserting in
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lieu thereof "With respect to copies and phonorecords publicly
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distributed by authority of the copyright owner before the effective date
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of the Berne Convention Implementation Act of 1988, where";
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(2) in subsection (b) by inserting "before the effective date of
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the Berne Convention Implementation Act of 1988" after "distributed";
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(3) in subsection (c)--
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(A) by inserting "before the effective date of the Berne
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Convention Implementation Act of 1988" after "publicly
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distributed"; and
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(B) by inserting after "405" the following: "as in
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effect on the day before the effective date of the Berne
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Convention Implementation Act of 1988"; and
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(4) by amending the section heading to read as follows:
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"Section 406. Notice of copyright: Error in name or date on certain copies and
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phonorecords".
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(g) Clerical Amendment.--The table of sections at the beginning of
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chapter 4 is amended by striking out the items relating to sections 405 and 406
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and inserting in lieu thereof the following:
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"405. Notice of copyright: Omission of notice on certain copies and
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phonorecords.
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"406. Notice of copyright: Error in name or date on certain copies and
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phonorecords.".
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Section 8. Deposit of Copies or Phonorecords for Library of Congress.
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Section 407(a) is amended by striking out "with notice of copyright".
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Section 9. Copyright Registration.
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(a) Registration in General.--Section 408 is amended--
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(1) in subsection (a), by striking out "Subject to the
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provisions of section 405(a), such" in the second sentence and inserting
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in lieu thereof "Such";
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(2) in subsection (c)(2)--
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(A) by striking out "all of the following conditions--"
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and inserting in lieu thereof "the following conditions:";
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(B) by striking out subparagraph (A); and
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(C) by redesignating subparagraphs (B) and (C) as
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subparagraphs (A) and (B), respectively.
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(b) Infringement Actions.--
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(1) Registration as a Prerequisite.--Section 411 is amended--
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(A) by amending the section heading to read as follows:
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"Section 411. Registration and infringement actions";
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(B) in subsection (a) by striking out "Subject" and
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inserting in lieu thereof "Except for actions for infringement of
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copyright in Berne Convention works whose country of origin
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in not the United States, and subject"; and
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(C) in subsection (b)(2) by inserting ", if required by
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subsection (a)," after "work".
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(2) Table of Sections.--The table of sections at the beginning
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of chapter 4 is amended by striking out the item relating to section 411
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and inserting in lieu thereof the following:
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"411. Registration and infringement actions.".
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Section 10. Copyright Infringement and Remedies.
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(a) Infringement.--Section 501(b) is amended by striking out "sections
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205(d) and 411," and inserting in lieu thereof "section 411,".
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(b) Damages and Profits.--Section 504(c) is amended--
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(1) in paragraph (1))--
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(A) by striking out "$250", and inserting in lieu
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thereof "$500"; and
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(B) by striking out "$10,000", and inserting in lieu
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thereof "$20,000"; and
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(2) in paragraph (2)--
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(A) by striking out "$50,000.", and inserting in lieu
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thereof "$100,000."; and
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(B) by striking out "$100.", and inserting in lieu
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thereof "$200.".
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Section 11. Copyright Royalty Tribunal.
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Chapter 8 is amended--
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(1) in section 801, by adding at the end of subsection (b) the
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following: "In determining whether a return to a copyright owner under
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section 116 is fair, appropriate weight shall be given to--
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"(i) the rates previously determined by the Tribunal to provide
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a fair return to the copyright owner, and
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"(ii) the rates contained in any license negotiated pursuant to
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section 116A of this title."; and
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(2) by amending section 804(a)(2)(C) to read as follows:
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"(C)
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(i) In proceedings under section 801(b)(1)
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concerning the adjustment of royalty rates as provided in
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section 115, such petition may be filed in 1990 and in each
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subsequent tenth calendar year, and at any time within 1 year
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after negotiated licenses authorized by section 116A are
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terminated or expire and are not replaced by subsequent
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agreements.
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"(ii) If negotiated licenses authorized by section
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116A come into force so as to supersede previous
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determinations of the Tribunal, as provided in section 116A(d),
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but thereafter are terminated or expire and are not replaced by
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subsequent agreements, the Tribunal shall, upon petition of
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any party to such terminated or expired negotiated license
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|
agreement, promptly establish an interim royalty rate or rates
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for the public performance by means of a coin-operated
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phonorecord player of nondramatic musical works embodied in
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phonorecords which had been subject to the terminated or
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|
expired negotiated license agreement. Such interim royalty
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rate or rates shall be the same as the last such rate or rates and
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|
shall remain in force until the conclusion of proceedings to
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adjust the royalty rates applicable to such works, or until
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superseded by a new negotiated license agreement, as provided
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in section 116A(d).".
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Section 12. Works in the Public Domain.
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Title 17, United States Code, as amended by this Act, does not provide
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copyright protection for any work that is in the public domain in the United
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States.
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Section 13. Effective Date on Pending Cases.
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(a) Effective Date.--This Act and the amendments made by this Act
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take effect on the date on which the Berne Convention (as defined in section 101
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of title 17, United States Code) enters into force with respect to the United
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States.
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(b) Effect on Pending Cases.--Any cause of action arising under title
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17, United States Code, before the effective date of this Act shall be governed by
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the provisions of such titles as in effect when the cause of action arose.
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Approved October 31, 1988.
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