Public Law 105-80

by by the 105th Congress of the United States

105^TH UNITED STATES CONGRESS
1^ST SESSION

An Act
To make technical amendments to certain provisions of title 17, United States Code.

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Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. TECHNICAL CORRECTIONS TO THE SATELLITE HOME VIEWER ACT OF 1994.

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

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

``(A) in clause (i) by striking `12 cents' and inserting `17.5 cents per subscriber in the case of superstations that as retransmitted by the satellite carrier include any program which, if delivered by any cable system in the United States, would be subject to the syndicated exclusivity rules of the Federal Communications Commission, and 14 cents per subscriber in the case of superstations that are syndex-proof as defined in section 258.2 of title 37, Code of Federal Regulations'; and".

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

``(4) Subsection (c) is amended

``(A) in paragraph (1)

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

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

``(iii) by striking the second sentence;

``(B) in paragraph (2)

``(i) in subparagraph (A) by striking 'July 1, 1991' and inserting `July 1, 1996'; and

``(ii) in subparagraph (D) by striking December 31, 1994 and inserting December 31, 1999, or in accordance with the terms of the agreement, whichever is later'; and

``(C) in paragraph (3)

``(i) in subparagraph (A) by striking 'December 31, 1991' and inserting 'January 1, 1997';

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

``(B) Establishment Of Royalty Fees.—In determining royalty fees under this paragraph, the copyright arbitration royalty panel appointed under chapter 8 shall establish fees for the retransmission of network stations and superstations that most clearly represent the fair market value of secondary transmissions. In determining the fair market value, the panel shall base its decision on economic, competitive, and programming information presented by the parties, including

``(i) the competitive environment in which such programming is distributed, the cost of similar signals in similar private and compulsory license market places, and any special features and conditions of the retransmission marketplace;

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

``(iii) the impact on the continued availability of secondary transmissions to the public.; and

``(iii) in subparagraph (C), by inserting or 'July 1, 1997, whichever is later' after 'section 802(g)'.".

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

``(A) in paragraph (5)(C) by striking the date of the enactment of the Satellite Home Viewer Act of 1988 and inserting November 16, 1988; and".

SEC. 2. COPYRIGHT IN RESTORED WORKS.

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

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

``(3) Existing Derivative Works.—(A) In the case of a derivative work that is based upon a restored work and is created—

``(i) before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the restored work is an eligible country on such date, or

``(ii) before the date on which the source country of the restored work becomes an eligible country, if that country is not an eligible country on such date of enactment, a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph.".

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

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

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

``(A) January 1, 1996, if the source country of the restored work is a nation adhering to the Berne Convention or a WTO member country on such date, or

``(B) the date of adherence or proclamation, in the case of any other source country of the restored work.".

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

``(3) The term 'eligible country' means a nation, other than the United States, that

``(A) becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act;

``(B) on such date of enactment is, or after such date of enactment becomes, a member of the Berne Convention; or

``(C) after such date of enactment becomes subject to a proclamation under subsection (g).

``For purposes of this section, a nation that is a member of the Berne Convention on the date of the enactment of the Uruguay Round Agreements Act shall be construed to become an eligible country on such date of enactment.".

SEC. 3. LICENSES FOR NONEXEMPT SUBSCRIPTION TRANSMISSIONS.

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

(1) in paragraph (1), by inserting ", or, if a copyright arbitration royalty panel is convened, ending 30 days after the Librarian issues and publishes in the Federal Register an order adopting the determination of the copyright arbitration royalty panel or an order setting the terms and rates (if the Librarian rejects the panels determination)" after "December 31, 2000;" and

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

SEC. 4. ROYALTY PAYABLE UNDER COMPULSORY LICENSE.

Section 115(c)(3)(D) of title 17, United States Code, is amended by striking "and publish in the Federal Register".

SEC. 5. NEGOTIATED LICENSE FOR JUKEBOXES.

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

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

``(2) ARBITRATION.—Parties not subject to such a negotiation may determine, by arbitration in accordance with the provisions of chapter 8, the terms and rates and the division of fees described in paragraph (1)."; and

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

``(d) DEFINITIONS.—As used in this section, the following terms mean the following:

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

``(A) is employed solely for the performance of nondramatic musical works by means of phonorecords upon being activated by the insertion of coins, currency, tokens, or other monetary units or their equivalent;

``(B) is located in an establishment making no direct or indirect charge for admission;

``(C) is accompanied by a list which is comprised of the titles of all the musical works available for performance on it, and is affixed to the phonorecord player or posted in the establishment in a prominent position where it can be readily examined by the public; and

``(D) affords a choice of works available for performance and permits the choice to be made by the patrons of the establishment in which it is located.

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

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

``(B) has the power to make a coin-operated phonorecord player available for placement in an establishment for purposes of public performance; or

``(C) has the power to exercise primary control over the selection of the musical works made available for public performance on a coin-operated phonorecord player.".

SEC. 6. REGISTRATION AND INFRINGEMENT ACTIONS.

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

``(1) serves notice upon the infringer, not less than 48 hours before such fixation, identifying the work and the specific time and source of its first transmission, and declaring an intention to secure copyright in the work; and."

SEC. 7. COPYRIGHT OFFICE FEES.

(a) Fee Increases.—

Section 708(b) of title 17, United States Code, is amended to read as follows:

``(b) In calendar year 1997 and in any subsequent calendar year, the Register of Copyrights, by regulation, may increase the fees specified in subsection (a) in the following manner:

``(1) The Register shall conduct a study of the costs incurred by the Copyright Office for the registration of claims, the recordation of documents, and the provision of services. The study shall also consider the timing of any increase in fees and the authority to use such fees consistent with the budget.

``(2) The Register may, on the basis of the study under paragraph (1), and subject to paragraph (5), increase fees to not more than that necessary to cover the reasonable costs incurred by the Copyright Office for the services described in paragraph (1), plus a reasonable inflation adjustment to account for any estimated increase in costs.

``(3) Any fee established under paragraph (2) shall be rounded off to the nearest dollar, or for a fee less than $12, rounded off to the nearest 50 cents.

``(4) Fees established under this subsection shall be fair and equitable and give due consideration to the objectives of the copyright system.

``(5) If the Register determines under paragraph (2) that fees should be increased, the Register shall prepare a proposed fee schedule and submit the schedule with the accompanying economic analysis to the Congress. The fees proposed by the Register may be instituted after the end of 120 days after the schedule is submitted to the Congress unless, within that 120-day period, a law is enacted stating in substance that the Congress does not approve the schedule.".

(b) Deposit Of Fees.—

Section 708(d) of such title is amended to read as follows:

``(d)(1) Except as provided in paragraph (2), all fees received under this section shall be deposited by the Register of Copyrights in the Treasury of the United States and shall be credited to the appropriations for necessary expenses of the Copyright Office. Such fees that are collected shall remain available until expended. The Register may, in accordance with regulations that he or she shall prescribe, refund any sum paid by mistake or in excess of the fee required by this section.

``(2) In the case of fees deposited against future services, the Register of Copyrights shall request the Secretary of the Treasury to invest in interest-bearing securities in the United States Treasury any portion of the fees that, as determined by the Register, is not required to meet current deposit account demands. Funds from such portion of fees shall be invested in securities that permit funds to be available to the Copyright Office at all times if they are determined to be necessary to meet current deposit account demands. Such investments shall be in public debt securities with maturities suitable to the needs of the Copyright Office, as determined by the Register of Copyrights, and bearing interest at rates determined by the Secretary of the Treasury, taking into consideration current market yields on outstanding marketable obligations of the United States of comparable maturities.

``(3) The income on such investments shall be deposited in the Treasury of the United States and shall be credited to the appropriations for necessary expenses of the Copyright Office.".

SEC. 8. COPYRIGHT ARBITRATION ROYALTY PANELS.

(a) Establishment and Purpose.—

Section 801 of title 17, United States Code, is amended—

(1) in subsection (b)(1) by striking ``and 116'' in the first sentence and inserting ``116, and 119'';

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

``, including—

``(1) authorizing the distribution of those royalty fees collected under sections 111, 119, and 1005 that the Librarian has found are not subject to controversy; and

``(2) accepting or rejecting royalty claims filed under sections 111, 119, and 1007 on the basis of timeliness or the failure to establish the basis for a claim''; and

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

``(d) Support and Reimbursement of Arbitration Panels.—The Librarian of Congress, upon the recommendation of the Register of Copyrights, shall provide the copyright arbitration royalty panels with the necessary administrative services related to proceedings under this chapter, and shall reimburse the arbitrators presiding in distribution proceedings at such intervals and in such manner as the Librarian shall provide by regulation. Each such arbitrator is an independent contractor acting on behalf of the United States, and shall be hired pursuant to a signed agreement between the Library of Congress and the arbitrator. Payments to the arbitrators shall be considered reasonable costs incurred by the Library of Congress and the Copyright Office for purposes of section 802(h)(1).''.

(b) Proceedings.—

Section 802(h) of title 17, United States Code, is amended by amending paragraph (1) to read as follows:

``(1) Deduction of costs of library of congress and copyright office from royalty fees.—The Librarian of Congress and the Register of Copyrights may, to the extent not otherwise provided under this title, deduct from royalty fees deposited or collected under this title the reasonable costs incurred by the Library of Congress and the Copyright Office under this chapter. Such deduction may be made before the fees are distributed to any copyright claimants. In addition, all funds made available by an appropriations Act as offsetting collections and available for deductions under this subsection shall remain available until expended. In ratemaking proceedings, the reasonable costs of the Librarian of Congress and the Copyright Office shall be borne by the parties to the proceedings as directed by the arbitration panels under subsection (c).''.

SEC. 9. DIGITAL AUDIO RECORDING DEVICES AND MEDIA.

Section 1007(b) of title 17, United States Code, is amended by striking ``Within 30 days after'' in the first sentence and inserting ``After''.

SEC. 10. CONFORMING AMENDMENT.

Section 4 of the Digital Performance Right in Sound Recordings Act of 1995 (Public Law 104-39) is amended by redesignating paragraph (5) as paragraph (4).

SEC. 11. DISTRIBUTION OF PHONORECORDS.

Section 303 of title 17, United States Code, is amended—

(1) by striking ``Copyright'' and inserting ``(a) Copyright''; and

(2) by inserting at the end the following:

``(b) The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein.''.

SEC. 12. MISCELLANEOUS TECHNICAL AMENDMENTS.

(a) Amendments to Title 17, United States Code.—

Title 17, United States Code, is amended as follows:

(1) The table of chapters at the beginning of title 17, United States Code, is amended—

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

(B) in the item relating to chapter 8, by striking ``Royalty Tribunal'' and inserting ``Arbitration Royalty Panels'';

(C) in the item relating to chapter 9, by striking ``semiconductor chip products'' and inserting ``Semiconductor Chip Products''; and

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

``10. Digital Audio Recording Devices and Media..................1001''.

(2) The item relating to section 117 in the table of sections at the beginning of chapter 1 is amended to read as follows:

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

(3) Section 101 is amended in the definition of to perform or display a work ``publicly'' by striking ``processs'' and inserting ``process''.

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

(5) Section 109(b)(2)(B) is amended by striking ``Copyright'' and inserting ``Copyrights''.

(6) Section 110 is amended—

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

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

(C) in paragraph (10) by striking ``4 above'' and inserting ``(4)''.

(7) Section 115(c)(3)(E) is amended—

(A) in clause (i) by striking ``sections 106(1) and (3)'' each place it appears and inserting ``paragraphs (1) and (3) of section 106''; and

(B) in clause (ii)(II) by striking ``sections 106(1) and 106(3)'' and inserting ``paragraphs (1) and (3) of section 106''.

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

(9) Section 304(c) is amended in the matter preceding paragraph (1) by striking ``the subsection (a)(1)(C)'' and inserting ``subsection (a)(1)(C)''.

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

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

(12) The item relating to section 504 in the table of sections at the beginning of chapter 5 is amended by striking ``Damage'' and inserting ``Damages''.

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

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

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

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

(17) The item relating to section 710 in the table of sections at the beginning of chapter 7 is amended by striking ``Reproductions'' and inserting ``Reproduction''.

(18) The item relating to section 801 in the table of sections at the beginning of chapter 8 is amended by striking ``establishment'' and inserting ``Establishment''.

(19) Section 801(b) is amended—

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

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

(C) in paragraph (2)—

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

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

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

(20) Section 803(b) is amended in the second sentence by striking ``subsection subsection'' and inserting ``subsection''.

(21) The item relating to section 903 in the table of sections at the beginning of chapter 9 is amended to read as follows:

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

(22) Section 909(b)(1) is amended—

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

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

(23) Section 910(a) is amended in the second sentence by striking ``as used'' and inserting ``As used''.

(24) Section 1006(b)(1) is amended by striking ``Federation Television'' and inserting ``Federation of Television''.

(25) Section 1007 is amended—

(A) in subsection (a)(1) by striking ``the calendar year in which this chapter takes effect'' and inserting ``calendar year 1992''; and

(B) in subsection (b) by striking ``the year in which this section takes effect'' and inserting ``1992''.

(b) Related Provisions.—

(1) Section 1(a)(1) of the Act entitled ``An Act to amend chapter 9 of title 17, United States Code, regarding protection extended to semiconductor chip products of foreign entities'', approved November 9, 1987 (17 U.S.C. 914 note), is amended by striking ``orginating'' and inserting ``originating''.

(2) Section 2319(b)(1) of title 18, United States Code, is amended by striking ``last 10'' and inserting ``least 10''.

SEC. 13. EFFECTIVE DATES.

(a) In General.—

Except as provided in subsections (b) and (c), the amendments made by this Act shall take effect on the date of the enactment of this Act.

(b) Satellite Home Viewer Act.—

The amendments made by section 1 shall be effective as if enacted as part of the Satellite Home Viewer Act of 1994 (Public Law 103-369).

(c) Technical Amendment.—

The amendment made by section 12(b)(1) shall be effective as if enacted on November 9, 1987.

Approved November 13, 1997.

Legislative History

• H.R. 672, (S. 506)

• HOUSE REPORTS:
  • No. 105-25 (Comm. on the Judiciary)
• CONGRESSIONAL RECORD, Vol. 143 (1997):
  • Mar. 18, considered and passed House.
  • Oct. 30, considered and passed Senate, amended.
  • Nov. 4, House concurred in Senate amendments.