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[109th Congress Public Law 9]
[From the U.S. Government Printing Office]

[DOCID: f:publ009.109]

[[Page 217]]

             FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005

[[Page 119 STAT. 218]]

Public Law 109-9
109th Congress

                                 An Act

 
 To provide for the protection of intellectual property rights, and for 
          other purposes. <<NOTE: Apr. 27, 2005 -  [S. 167]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress <<NOTE: Family Entertainment and 
Copyright Act of 2005. 17 USC 101 note.>> assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Family Entertainment and Copyright 
Act of 2005''.

 TITLE I--ARTISTS' <<NOTE: Artists' Rights and Theft Prevention Act of 
2005.>> RIGHTS AND THEFT PREVENTION

SEC. 101. SHORT <<NOTE: 17 USC 101 note.>> TITLE.

    This title may be cited as the ``Artists' Rights and Theft 
Prevention Act of 2005'' or the ``ART Act''.
SEC. 102. CRIMINAL PENALTIES FOR UNAUTHORIZED RECORDING OF MOTION 
                        PICTURES IN A MOTION PICTURE EXHIBITION 
                        FACILITY.

    (a) In General.--Chapter 113 of title 18, United States Code, is 
amended by adding after section 2319A the following new section:

``Sec. 2319B. Unauthorized recording of Motion pictures in a Motion 
                        picture exhibition facility

    ``(a) Offense.--Any person who, without the authorization of the 
copyright owner, knowingly uses or attempts to use an audiovisual 
recording device to transmit or make a copy of a motion picture or other 
audiovisual work protected under title 17, or any part thereof, from a 
performance of such work in a motion picture exhibition facility, 
shall--
            ``(1) be imprisoned for not more than 3 years, fined under 
        this title, or both; or
            ``(2) if the offense is a second or subsequent offense, be 
        imprisoned for no more than 6 years, fined under this title, or 
        both.

The possession by a person of an audiovisual recording device in a 
motion picture exhibition facility may be considered as evidence in any 
proceeding to determine whether that person committed an offense under 
this subsection, but shall not, by itself, be sufficient to support a 
conviction of that person for such offense.
    ``(b) Forfeiture and Destruction.--When a person is convicted of a 
violation of subsection (a), the court in its judgment of conviction 
shall, in addition to any penalty provided, order the forfeiture and 
destruction or other disposition of all unauthorized

[[Page 119 STAT. 219]]

copies of motion pictures or other audiovisual works protected under 
title 17, or parts thereof, and any audiovisual recording devices or 
other equipment used in connection with the offense.
    ``(c) Authorized Activities.--This section does not prevent any 
lawfully authorized investigative, protective, or intelligence activity 
by an officer, agent, or employee of the United States, a State, or a 
political subdivision of a State, or by a person acting under a contract 
with the United States, a State, or a political subdivision of a State.
    ``(d) Immunity for Theaters.--With reasonable cause, the owner or 
lessee of a motion picture exhibition facility where a motion picture or 
other audiovisual work is being exhibited, the authorized agent or 
employee of such owner or lessee, the licensor of the motion picture or 
other audiovisual work being exhibited, or the agent or employee of such 
licensor--
            ``(1) may detain, in a reasonable manner and for a 
        reasonable time, any person suspected of a violation of this 
        section with respect to that motion picture or audiovisual work 
        for the purpose of questioning or summoning a law enforcement 
        officer; and
            ``(2) shall not be held liable in any civil or criminal 
        action arising out of a detention under paragraph (1).

    ``(e) Victim Impact Statement.--
            ``(1) In general.--During the preparation of the presentence 
        report under rule 32(c) of the Federal Rules of Criminal 
        Procedure, victims of an offense under this section shall be 
        permitted to submit to the probation officer 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) Contents.--A victim impact statement submitted under 
        this subsection shall include--
                    ``(A) producers and sellers of legitimate works 
                affected by conduct involved in the offense;
                    ``(B) holders of intellectual property rights in the 
                works described in subparagraph (A); and
                    ``(C) the legal representatives of such producers, 
                sellers, and holders.

    ``(f) State Law Not Preempted.--Nothing in this section may be 
construed to annul or limit any rights or remedies under the laws of any 
State.
    ``(g) Definitions.--In this section, the following definitions shall 
apply:
            ``(1) Title 17 definitions.--The terms `audiovisual work', 
        `copy', `copyright owner', `motion picture', `motion picture 
        exhibition facility', and `transmit' have, respectively, the 
        meanings given those terms in section 101 of title 17.
            ``(2) Audiovisual recording device.--The term `audiovisual 
        recording device' means a digital or analog photographic or 
        video camera, or any other technology or device capable of 
        enabling the recording or transmission of a copyrighted motion 
        picture or other audiovisual work, or any part thereof, 
        regardless of whether audiovisual recording is the sole or 
        primary purpose of the device.''.

[[Page 119 STAT. 220]]

    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 113 of title 18, United States Code, is amended by inserting 
after the item relating to section 2319A the following:

``2319B. Unauthorized recording of motion pictures in a motion picture 
           exhibition facility.''.

    (c) Definition.--Section 101 of title 17, United States Code, is 
amended by inserting after the definition of ``Motion pictures'' the 
following: ``The term ``motion picture exhibition facility'' means a 
movie theater, screening room, or other venue that is being used 
primarily for the exhibition of a copyrighted motion picture, if such 
exhibition is open to the public or is made to an assembled group of 
viewers outside of a normal circle of a family and its social 
acquaintances.''.
SEC. 103. CRIMINAL INFRINGEMENT OF A WORK BEING PREPARED FOR 
                        COMMERCIAL DISTRIBUTION.

    (a) Prohibited Acts.--Section 506(a) of title 17, United States 
Code, is amended to read as follows:
    ``(a) Criminal Infringement.--
            ``(1) In general.--Any person who willfully infringes a 
        copyright shall be punished as provided under section 2319 of 
        title 18, if the infringement was committed--
                    ``(A) for purposes of commercial advantage or 
                private financial gain;
                    ``(B) by the reproduction or distribution, including 
                by electronic means, during any 180-day period, of 1 or 
                more copies or phonorecords of 1 or more copyrighted 
                works, which have a total retail value of more than 
                $1,000; or
                    ``(C) by the distribution of a work being prepared 
                for commercial distribution, by making it available on a 
                computer network accessible to members of the public, if 
                such person knew or should have known that the work was 
                intended for commercial distribution.
            ``(2) Evidence.--For purposes of this subsection, evidence 
        of reproduction or distribution of a copyrighted work, by 
        itself, shall not be sufficient to establish willful 
        infringement of a copyright.
            ``(3) Definition.--In this subsection, the term `work being 
        prepared for commercial distribution' means--
                    ``(A) a computer program, a musical work, a motion 
                picture or other audiovisual work, or a sound recording, 
                if, at the time of unauthorized distribution--
                          ``(i) the copyright owner has a reasonable 
                      expectation of commercial distribution; and
                          ``(ii) the copies or phonorecords of the work 
                      have not been commercially distributed; or
                    ``(B) a motion picture, if, at the time of 
                unauthorized distribution, the motion picture--
                          ``(i) has been made available for viewing in a 
                      motion picture exhibition facility; and
                          ``(ii) has not been made available in copies 
                      for sale to the general public in the United 
                      States in a format intended to permit viewing 
                      outside a motion picture exhibition facility.''.

    (b) Criminal Penalties.--Section 2319 of title 18, United States 
Code, is amended--

[[Page 119 STAT. 221]]

            (1) in subsection (a)--
                    (A) by striking ``Whoever'' and inserting ``Any 
                person who''; and
                    (B) by striking ``and (c) of this section'' and 
                inserting ``, (c), and (d)'';
            (2) in subsection (b), by striking ``section 506(a)(1)'' and 
        inserting ``section 506(a)(1)(A)'';
            (3) in subsection (c), by striking ``section 506(a)(2) of 
        title 17, United States Code'' and inserting ``section 
        506(a)(1)(B) of title 17'';
            (4) by redesignating subsections (d) and (e) as subsections 
        (e) and (f), respectively;
            (5) by adding after subsection (c) the following:

    ``(d) Any person who commits an offense under section 506(a)(1)(C) 
of title 17--
            ``(1) shall be imprisoned not more than 3 years, fined under 
        this title, or both;
            ``(2) shall be imprisoned not more than 5 years, fined under 
        this title, or both, if the offense was committed for purposes 
        of commercial advantage or private financial gain;
            ``(3) shall be imprisoned not more than 6 years, fined under 
        this title, or both, if the offense is a second or subsequent 
        offense; and
            ``(4) shall be imprisoned not more than 10 years, fined 
        under this title, or both, if the offense is a second or 
        subsequent offense under paragraph (2).''; and
            (6) in subsection (f), as redesignated--
                    (A) in paragraph (1), by striking ``and'' at the 
                end;
                    (B) in paragraph (2), by striking the period at the 
                end and inserting a semicolon; and
                    (C) by adding at the end the following:
            ``(3) the term `financial gain' has the meaning given the 
        term in section 101 of title 17; and
            ``(4) the term `work being prepared for commercial 
        distribution' has the meaning given the term in section 506(a) 
        of title 17.''.
SEC. 104. CIVIL REMEDIES FOR INFRINGEMENT OF A WORK BEING PREPARED 
                        FOR COMMERCIAL DISTRIBUTION.

    (a) Preregistration.--Section 408 of title 17, United States Code, 
is amended by adding at the end the following:
    ``(f) <<NOTE: Deadlines.>> Preregistration of Works Being Prepared 
for Commercial Distribution.--
            ``(1) Rulemaking.--Not later than 180 days after the date of 
        enactment of this subsection, the Register of Copyrights shall 
        issue regulations to establish procedures for preregistration of 
        a work that is being prepared for commercial distribution and 
        has not been published.
            ``(2) Class of works.--The regulations established under 
        paragraph (1) shall permit preregistration for any work that is 
        in a class of works that the Register determines has had a 
        history of infringement prior to authorized commercial 
        distribution.
            ``(3) Application for registration.--Not later than 3 months 
        after the first publication of a work preregistered under this 
        subsection, the applicant shall submit to the Copyright Office--

[[Page 119 STAT. 222]]

                    ``(A) an application for registration of the work;
                    ``(B) a deposit; and
                    ``(C) the applicable fee.
            ``(4) Effect of untimely application.--An action under this 
        chapter for infringement of a work preregistered under this 
        subsection, in a case in which the infringement commenced no 
        later than 2 months after the first publication of the work, 
        shall be dismissed if the items described in paragraph (3) are 
        not submitted to the Copyright Office in proper form within the 
        earlier of--
                    ``(A) 3 months after the first publication of the 
                work; or
                    ``(B) 1 month after the copyright owner has learned 
                of the infringement.''.

    (b) Infringement Actions.--Section 411(a) of title 17, United States 
Code, is amended by inserting ``preregistration or'' after ``shall be 
instituted until''.
    (c) Exclusion.--Section 412 of title 17, United States Code, is 
amended by inserting after ``section 106A(a)'' the following: ``, an 
action for infringement of the copyright of a work that has been 
preregistered under section 408(f) before the commencement of the 
infringement and that has an effective date of registration not later 
than the earlier of 3 months after the first publication of the work or 
1 month after the copyright owner has learned of the infringement,''.

SEC. 105. FEDERAL SENTENCING <<NOTE: 28 USC 994 note.>> GUIDELINES.

    (a) <<NOTE: Deadline.>> Review and Amendment.--Not later than 180 
days after the date of enactment of this Act, the United States 
Sentencing Commission, pursuant to its authority under section 994 of 
title 28, United States Code, and in accordance with this section, shall 
review and, if appropriate, amend the Federal sentencing guidelines and 
policy statements applicable to persons convicted of intellectual 
property rights crimes, including any offense under--
            (1) section 506, 1201, or 1202 of title 17, United States 
        Code; or
            (2) section 2318, 2319, 2319A, 2319B, or 2320 of title 18, 
        United States Code.

    (b) Authorization.--The United States Sentencing Commission may 
amend the Federal sentencing guidelines in accordance with the 
procedures set forth in section 21(a) of the Sentencing Act of 1987 (28 
U.S.C. 994 note) as though the authority under that section had not 
expired.
    (c) Responsibilities of United States Sentencing Commission.--In 
carrying out this section, the United States Sentencing Commission 
shall--
            (1) take all appropriate measures to ensure that the Federal 
        sentencing guidelines and policy statements described in 
        subsection (a) are sufficiently stringent to deter, and 
        adequately reflect the nature of, intellectual property rights 
        crimes;
            (2) determine whether to provide a sentencing enhancement 
        for those convicted of the offenses described in subsection (a), 
        if the conduct involves the display, performance, publication, 
        reproduction, or distribution of a copyrighted work before it 
        has been authorized by the copyright owner, whether in the media 
        format used by the infringing party or in any other media 
        format;

[[Page 119 STAT. 223]]

            (3) determine whether the scope of ``uploading'' set forth 
        in application note 3 of section 2B5.3 of the Federal sentencing 
        guidelines is adequate to address the loss attributable to 
        people who, without authorization, broadly distribute 
        copyrighted works over the Internet; and
            (4) determine whether the sentencing guidelines and policy 
        statements applicable to the offenses described in subsection 
        (a) adequately reflect any harm to victims from copyright 
        infringement if law enforcement authorities cannot determine how 
        many times copyrighted material has been reproduced or 
        distributed.

      TITLE II--EXEMPTION <<NOTE: Family Movie Act of 2005.>> FROM 
INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO CONTENT IN MOTION PICTURES

SEC. 201. SHORT <<NOTE: 17 USC 101 note.>> TITLE.

    This title may be cited as the ``Family Movie Act of 2005''.
SEC. 202. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO 
                        CONTENT IN MOTION PICTURES.

    (a) In General.--Section 110 of title 17, United States Code, is 
amended--
            (1) in paragraph (9), by striking ``and'' after the 
        semicolon at the end;
            (2) in paragraph (10), by striking the period at the end and 
        inserting ``; and'';
            (3) by inserting after paragraph (10) the following:
            ``(11) the making imperceptible, by or at the direction of a 
        member of a private household, of limited portions of audio or 
        video content of a motion picture, during a performance in or 
        transmitted to that household for private home viewing, from an 
        authorized copy of the motion picture, or the creation or 
        provision of a computer program or other technology that enables 
        such making imperceptible and that is designed and marketed to 
        be used, at the direction of a member of a private household, 
        for such making imperceptible, if no fixed copy of the altered 
        version of the motion picture is created by such computer 
        program or other technology.''; and
            (4) by adding at the end the following:

    ``For purposes of paragraph (11), the term `making imperceptible' 
does not include the addition of audio or video content that is 
performed or displayed over or in place of existing content in a motion 
picture.
    ``Nothing in paragraph (11) shall be construed to imply further 
rights under section 106 of this title, or to have any effect on 
defenses or limitations on rights granted under any other section of 
this title or under any other paragraph of this section.''.
    (b) Exemption From Trademark Infringement.--Section 32 of the 
Trademark Act of 1946 (15 U.S.C. 1114) is amended by adding at the end 
the following:
    ``(3)(A) Any person who engages in the conduct described in 
paragraph (11) of section 110 of title 17, United States Code, and who 
complies with the requirements set forth in that paragraph

[[Page 119 STAT. 224]]

is not liable on account of such conduct for a violation of any right 
under this Act. This subparagraph does not preclude liability, nor shall 
it be construed to restrict the defenses or limitations on rights 
granted under this Act, of a person for conduct not described in 
paragraph (11) of section 110 of title 17, United States Code, even if 
that person also engages in conduct described in paragraph (11) of 
section 110 of such title.
    ``(B) <<NOTE: Notice.>> A manufacturer, licensee, or licensor of 
technology that enables the making of limited portions of audio or video 
content of a motion picture imperceptible as described in subparagraph 
(A) is not liable on account of such manufacture or license for a 
violation of any right under this Act, if such manufacturer, licensee, 
or licensor ensures that the technology provides a clear and conspicuous 
notice at the beginning of each performance that the performance of the 
motion picture is altered from the performance intended by the director 
or copyright holder of the motion picture. The limitations on liability 
in subparagraph (A) and this subparagraph shall not apply to a 
manufacturer, licensee, or licensor of technology that fails to comply 
with this paragraph.

    ``(C) <<NOTE: Applicability. Effective date.>> The requirement under 
subparagraph (B) to provide notice shall apply only with respect to 
technology manufactured after the end of the 180-day period beginning on 
the date of the enactment of the Family Movie Act of 2005.

    ``(D) Any failure by a manufacturer, licensee, or licensor of 
technology to qualify for the exemption under subparagraphs (A) and (B) 
shall not be construed to create an inference that any such party that 
engages in conduct described in paragraph (11) of section 110 of title 
17, United States Code, is liable for trademark infringement by reason 
of such conduct.''.
    (c) Definition.--In this section, the term ``Trademark Act of 1946'' 
means the Act entitled ``An Act to provide for the registration and 
protection of trademarks used in commerce, to carry out the provisions 
of certain international conventions, and for other purposes'', approved 
July 5, 1946 (15 U.S.C. 1051 et seq.).

                  TITLE III--NATIONAL FILM PRESERVATION

 Subtitle A--Reauthorization <<NOTE: National Film Preservation Act of 
2005.>> of the National Film Preservation Board

SEC. 301. SHORT <<NOTE: 2 USC 179l note.>> TITLE.

    This subtitle may be cited as the ``National Film Preservation Act 
of 2005''.

SEC. 302. REAUTHORIZATION AND AMENDMENT.

    (a) Duties of the Librarian of Congress.--Section 103 of the 
National Film Preservation Act of 1996 (2 U.S.C. 179m) is amended--
            (1) in subsection (b)--
                    (A) by striking ``film copy'' each place that term 
                appears and inserting ``film or other approved copy'';
                    (B) by striking ``film copies'' each place that term 
                appears and inserting ``film or other approved copies''; 
                and

[[Page 119 STAT. 225]]

                    (C) in the third sentence, by striking 
                ``copyrighted'' and inserting ``copyrighted, mass 
                distributed, broadcast, or published''; and
            (2) by adding at the end the following:

    ``(c) Coordination of Program With Other Collection, Preservation, 
and Accessibility Activities.--In carrying out the comprehensive 
national film preservation program for motion pictures established under 
the National Film Preservation Act of 1992, the Librarian, in 
consultation with the Board established pursuant to section 104, shall--
            ``(1) carry out activities to make films included in the 
        National Film registry more broadly accessible for research and 
        educational purposes, and to generate public awareness and 
        support of the Registry and the comprehensive national film 
        preservation program;
            ``(2) review the comprehensive national film preservation 
        plan, and amend it to the extent necessary to ensure that it 
        addresses technological advances in the preservation and storage 
        of, and access to film collections in multiple formats; and
            ``(3) wherever possible, undertake expanded initiatives to 
        ensure the preservation of the moving image heritage of the 
        United States, including film, videotape, television, and born 
        digital moving image formats, by supporting the work of the 
        National Audio-Visual Conservation Center of the Library of 
        Congress, and other appropriate nonprofit archival and 
        preservation organizations.''.

    (b) National Film Preservation Board.--Section 104 of the National 
Film Preservation Act of 1996 (2 U.S.C. 179n) is amended--
            (1) in subsection (a)(1) by striking ``20'' and inserting 
        ``22'';
            (2) in subsection (a)(2) by striking ``three'' and inserting 
        ``5'';
            (3) in subsection (d) by striking ``11'' and inserting 
        ``12''; and
            (4) by striking subsection (e) and inserting the following:

    ``(e) Reimbursement of Expenses.--Members of the Board shall serve 
without pay, but may receive travel expenses, including per diem in lieu 
of subsistence, in accordance with sections 5702 and 5703 of title 5, 
United States Code.''.
    (c) National Film Registry.--Section 106 of the National Film 
Preservation Act of 1996 (2 U.S.C. 179p) is amended by adding at the end 
the following:
    ``(e) National Audio-Visual Conservation Center.--The Librarian 
shall utilize the National Audio-Visual Conservation Center of the 
Library of Congress at Culpeper, Virginia, to ensure that preserved 
films included in the National Film Registry are stored in a proper 
manner, and disseminated to researchers, scholars, and the public as may 
be appropriate in accordance with--
            ``(1) title 17, United States Code; and
            ``(2) the terms of any agreements between the Librarian and 
        persons who hold copyrights to such audiovisual works.''.

    (d) Use of Seal.--Section 107(a) of the National Film Preservation 
Act of 1996 (2 U.S.C. 179q(a)) is amended--
            (1) in paragraph (1), by inserting ``in any format'' after 
        ``or any copy''; and

[[Page 119 STAT. 226]]

            (2) in paragraph (2), by striking ``or film copy'' and 
        inserting ``in any format''.

    (e) Effective Date.--Section 113 of the National Film Preservation 
Act of 1996 (2 U.S.C. 179w) is amended by striking ``7'' and inserting 
``13''.

     Subtitle B--Reauthorization <<NOTE: National Film Preservation 
     Foundation Reauthorization Act of 2005.>> of the National Film 
Preservation Foundation

SEC. 311. SHORT <<NOTE: 36 USC 101 note.>> TITLE.

    This subtitle may be cited as the ``National Film Preservation 
Foundation Reauthorization Act of 2005''.

SEC. 312. REAUTHORIZATION AND AMENDMENT.

    (a) Board of Directors.--Section 151703 of title 36, United States 
Code, is amended--
            (1) in subsection (b)(2)(A), by striking ``nine'' and 
        inserting ``12''; and
            (2) in subsection (b)(4), by striking the second sentence 
        and inserting ``There shall be no limit to the number of terms 
        to which any individual may be appointed.''.

    (b) Powers.--Section 151705 of title 36, United States Code, is 
amended in subsection (b) by striking ``District of Columbia'' and 
inserting ``the jurisdiction in which the principal office of the 
corporation is located''.
    (c) Principal Office.--Section 151706 of title 36, United States 
Code, is amended by inserting ``, or another place as determined by the 
board of directors'' after ``District of Columbia''.
    (d) Authorization of Appropriations.--Section 151711 of title 36, 
United States Code, is amended by striking subsections (a) and (b) and 
inserting the following:
    ``(a) Authorization of Appropriations.--There are authorized to be 
appropriated to the Library of Congress amounts necessary to carry out 
this chapter, not to exceed $530,000 for each of the fiscal years 2005 
through 2009. These amounts are to be made available to the corporation 
to match any private contributions (whether in currency, services, or 
property) made to the corporation by private persons and State and local 
governments.
    ``(b) Limitation Related to Administrative Expenses.--Amounts 
authorized under this section may not be used by the corporation for 
management and general or fundraising expenses as reported to the 
Internal Revenue Service as part of an annual information return 
required under the Internal Revenue Code of 1986.''.

 TITLE IV--PRESERVATION <<NOTE: Preservation of Orphan Works Act.>> OF 
ORPHAN WORKS

SEC. 401. SHORT <<NOTE: 17 USC 101 note.>> TITLE.

    This title may be cited as the ``Preservation of Orphan Works Act''.

[[Page 119 STAT. 227]]

SEC. 402. REPRODUCTION OF COPYRIGHTED WORKS BY LIBRARIES AND 
                        ARCHIVES.

    Section 108(i) of title 17, United States Code, is amended by 
striking ``(b) and (c)'' and inserting ``(b), (c), and (h)''.

    Approved April 27, 2005.

LEGISLATIVE HISTORY--S. 167:
---------------------------------------------------------------------------

HOUSE REPORTS: No. 109-33, Pt. 1 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 151 (2005):
            Feb. 1, considered and passed Senate.
            Apr. 19, considered and passed House.

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