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[House Report 106-84]
[From the U.S. Government Publishing Office]

106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                     106-84
_______________________________________________________________________

 
           TECHNICAL CORRECTIONS TO COPYRIGHT AND OTHER LAWS

_______________________________________________________________________

 April 12, 1999.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Coble, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                        [To accompany H.R. 1189]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1189) to make technical corrections in title 17, 
United States Code, and other laws, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
Purpose and Summary........................................           1
Background and Need for the Legislation....................           2
Committee Consideration....................................           2
Committee on Government Reform and Oversight Findings......           2
New Budget Authority and Tax Expenditures..................           2
Congressional Budget Office Cost Estimate..................           2
Constitutional Authority Statement.........................           3
Section-by-Section Analysis and Discussion.................           3
Changes in Existing Law Made by the Bill, as Reported......           3

                          Purpose and Summary

    The purpose of H.R. 1189 is to make purely technical 
amendments to the Copyright Act and other laws. It renumbers 
sections and paragraphs. It clarifies section titles and 
corrects clerical errors. H.R. 1189 does not make any 
substantive changes in the law.

                Background and Need for the Legislation

    At the close of the 105th Congress, two major copyright 
bills were signed into law. These laws, the ``Digital Millenium 
Copyright Act'' and the ``Copyright Term Extension Act,'' 
contained major changes to the Copyright Act and other laws. 
Subsequent to their passage, several technical errors were 
identified. These errors would cause confusion if not 
corrected. H.R. 1189 corrects these errors by making purely 
technical amendments to the Copyright Act and other laws. H.R. 
1189 does not make any substantive changes in the law.

                        Committee Consideration

    On March 24, 1999, the Committee met in open session and 
ordered favorably reported the bill H.R. 1189 without amendment 
by voice vote, a quorum being present.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 3(c)(4) of Rule XIII of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
this legislation does not provide new budget authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1189, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 403 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 26, 1999.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1189, a bill to 
make technical corrections in title 17, United States Code, and 
other laws.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark Hadley, 
who can be reached at 226-2860.
            Sincerely,

                                            Dan L. Crippen. Director.  
    Enclosure.

         cc: Honorable John Conyers, Jr.,
    Ranking Minority Member.
H.R. 1189--A bill to make technical corrections in title 17, United 
        States Code, and other laws
    H.R. 1189 would make certain technical corrections to 
copyright law concerning ephemeral recordings (those made and 
used solely for transmitting or archiving a performance or 
audiovisual display). The bill also would renumber and retitle 
certain sections of law relating to patents and copyrights. 
Finally, the bill would clarify that the Commissioner of 
Patents is to be paid at level III of the executive schedule.
    CBO estimates that enacting H.R. 1189 would have no 
significant impact on the federal budget. Because H.R. 1189 
would not affect direct spending or receipts, pay-as-you-go 
procedures would not apply. H.R. 1189 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would have no impact on the 
budgets of state, local, or tribal governments.
    The CBO staff contact is Mark Hadley, who can be reached at 
226-2860. This estimate was approved by Robert A. Sunshine, 
Deputy Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of the Rule XIII of the Rules of 
the House of Representatives, the Committee finds the authority 
for this legislation in Article I, section 8, clause 8 of the 
Constitution.

                      Section-By-Section Analysis

    Sec. 1. Technical Corrections to title 17, United States 
Code. This section amends section 110(5) by changing the 
numbering of paragraphs (A) and (B) to (i) and (ii). Section 
112(e) is also amended by changing the numbering of paragraphs 
(3) through (10) to (2) through (9) and the corresponding 
references back to those paragraphs within the section. 
Finally, chapter 5 is amended by redesignating the section 512 
entitled ``Limitations on liability relating to material 
online'' as section 513 and amending the table of contents at 
the beginning of the chapter to reflect the change.
    Sec. 2. Other Technical Corrections. This section makes a 
clerical amendment to title 28, United States Code, by amending 
the heading of section 1400 to read as: ``Sec. 1400. Patents 
and copyrights, mask works, and designs.'' This section also 
eliminates a conflicting provision in section 5316 of title 5, 
United States Code, by striking ``Commissioner of Patents, 
Department of Commerce.''. Finally, this section makes a 
clerical correction to title 35, United States Code, by 
striking ``,United States Code'' in section 3(d).

  

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                      TITLE 17, UNITED STATES CODE

            CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT

Sec. 110. Limitations on exclusive rights: Exemption of certain 
                    performances and displays

            (1) * * *

           *       *       *       *       *       *       *

            (5)(A) except as provided in subparagraph (B), 
        communication of a transmission embodying a performance 
        or display of a work by the public reception of the 
        transmission on a single receiving apparatus of a kind 
        commonly used in private homes, unless--
                    [(A)] (i) a direct charge is made to see or 
                hear the transmission; or
                    [(B)] (ii) the transmission thus received 
                is further transmitted to the public;

           *       *       *       *       *       *       *

Sec. 112. Limitations on exclusive rights: Ephemeral recordings

    (a) * * *

           *       *       *       *       *       *       *

    (e) Statutory License.--(1) * * *

           *       *       *       *       *       *       *

    [(3)] (2) Notwithstanding any provision of the antitrust 
laws, any copyright owners of sound recordings and any 
transmitting organizations entitled to a statutory license 
under this subsection may negotiate and agree upon royalty 
rates and license terms and conditions for making phonorecords 
of such sound recordings under this section and the 
proportionate division of fees paid among copyright owners, and 
may designate common agents to negotiate, agree to, pay, or 
receive such royalty payments.
    [(4)] (3) No later than 30 days after the date of the 
enactment of the Digital Millennium Copyright Act, the 
Librarian of Congress shall cause notice to be published in the 
Federal Register of the initiation of voluntary negotiation 
proceedings for the purpose of determining reasonable terms and 
rates of royalty payments for the activities specified by 
paragraph [(2)] (1) of this subsection during the period 
beginning on the date of the enactment of such Act and ending 
on December 31, 2000, or such other date as the parties may 
agree. Such rates shall include a minimum fee for each type of 
service offered by transmitting organizations. Any copyright 
owners of sound recordings or any transmitting organizations 
entitled to a statutory license under this subsection may 
submit to the Librarian of Congress licenses covering such 
activities with respect to such sound recordings. The parties 
to each negotiation proceeding shall bear their own costs.
    [(5)] (4) In the absence of license agreements negotiated 
under paragraph [(3)] (2), during the 60-day period commencing 
6 months after publication of the notice specified in paragraph 
[(4)] (3), and upon the filing of a petition in accordance with 
section 803(a)(1), the Librarian of Congress shall, pursuant to 
chapter 8, convene a copyright arbitration royalty panel to 
determine and publish in the Federal Register a schedule of 
reasonable rates and terms which, subject to paragraph [(6)] 
(5), shall be binding on all copyright owners of sound 
recordings and transmitting organizations entitled to a 
statutory license under this subsection during the period 
beginning on the date of the enactment of the Digital 
Millennium Copyright Act and ending on December 31, 2000, or 
such other date as the parties may agree. Such rates shall 
include a minimum fee for each type of service offered by 
transmitting organizations. The copyright arbitration royalty 
panel shall establish rates that most clearly represent the 
fees that would have been negotiated in the marketplace between 
a willing buyer and a willing seller. In determining such rates 
and terms, the copyright arbitration royalty panel shall base 
its decision on economic, competitive, and programming 
information presented by the parties, including--
            (A) * * *

           *       *       *       *       *       *       *

In establishing such rates and terms, the copyright arbitration 
royalty panel may consider the rates and terms under voluntary 
license agreements negotiated as provided in paragraphs [(3) 
and (4)] (2) and (3). The Librarian of Congress shall also 
establish requirements by which copyright owners may receive 
reasonable notice of the use of their sound recordings under 
this section, and under which records of such use shall be kept 
and made available by transmitting organizations entitled to 
obtain a statutory license under this subsection.
    [(6)] (5) License agreements voluntarily negotiated at any 
time between 1 or more copyright owners of sound recordings and 
1 or more transmitting organizations entitled to obtain a 
statutory license under this subsection shall be given effect 
in lieu of any determination by a copyright arbitration royalty 
panel or decision by the Librarian of Congress.
    [(7)] (6) Publication of a notice of the initiation of 
voluntary negotiation proceedings as specified in paragraph 
[(4)] (3) shall be repeated, in accordance with regulations 
that the Librarian of Congress shall prescribe, in the first 
week of January 2000, and at 2-year intervals thereafter, 
except to the extent that different years for the repeating of 
such proceedings may be determined in accordance with paragraph 
[(4)] (3). The procedures specified in paragraph [(5)] (4) 
shall be repeated, in accordance with regulations that the 
Librarian of Congress shall prescribe, upon filing of a 
petition in accordance with section 803(a)(1), during a 60-day 
period commencing on July 1, 2000, and at 2-year intervals 
thereafter, except to the extent that different years for the 
repeating of such proceedings may be determined in accordance 
with paragraph [(4)] (3). The procedures specified in paragraph 
[(5)] (4) shall be concluded in accordance with section 802.
    [(8)] (7)(A) Any person who wishes to make a phonorecord of 
a sound recording under a statutory license in accordance with 
this subsection may do so without infringing the exclusive 
right of the copyright owner of the sound recording under 
section 106(1)--
            (i) * * *

           *       *       *       *       *       *       *

    [(9)] (8) If a transmitting organization entitled to make a 
phonorecord under this subsection is prevented from making such 
phonorecord by reason of the application by the copyright owner 
of technical measures that prevent the reproduction of the 
sound recording, the copyright owner shall make available to 
the transmitting organization the necessary means for 
permitting the making of such phonorecord as permitted under 
this subsection, if it is technologically feasible and 
economically reasonable for the copyright owner to do so. If 
the copyright owner fails to do so in a timely manner in light 
of the transmitting organization's reasonable business 
requirements, the transmitting organization shall not be liable 
for a violation of section 1201(a)(1) of this title for 
engaging in such activities as are necessary to make such 
phonorecords as permitted under this subsection.
    [(10)] (9) Nothing in this subsection annuls, limits, 
impairs, or otherwise affects in any way the existence or value 
of any of the exclusive rights of the copyright owners in a 
sound recording, except as otherwise provided in this 
subsection, or in a musical work, including the exclusive 
rights to reproduce and distribute a sound recording or musical 
work, including by means of a digital phonorecord delivery, 
under sections 106(1), 106(3), and 115, and the right to 
perform publicly a sound recording or musical work, including 
by means of a digital audio transmission, under sections 106(4) 
and 106(6).

           *       *       *       *       *       *       *

             CHAPTER 5--COPYRIGHT INFRINGEMENT AND REMEDIES

Sec.
501.  Infringement of copyright.
     * * * * * * *
512.  Determination of reasonable license fees for individual 
          proprietors.
[512.  Limitations on liability relating to material online.]
513.  Limitations on liability relating to material online.
     * * * * * * *

Sec. [512.] 513. Limitations on liability relating to material online

    (a) Transitory Digital Network Communications.--A service 
provider shall not be liable for monetary relief, or, except as 
provided in subsection ( j), for injunctive or other equitable 
relief, for infringement of copyright by reason of the 
provider's transmitting, routing, or providing connections for, 
material through a system or network controlled or operated by 
or for the service provider, or by reason of the intermediate 
and transient storage of that material in the course of such 
transmitting, routing, or providing connections, if--
            (1) * * *

           *       *       *       *       *       *       *

                              ----------                              

              SECTION 1400 OF TITLE 28, UNITED STATES CODE

[Patents and copyrights, mask works, and designs]

Sec. 1400. Patents and copyrights, mask works, and designs

    (a) * * *

           *       *       *       *       *       *       *

                              ----------                              

              SECTION 5316 OF TITLE 5, UNITED STATES CODE

Sec. 5316. Positions at level V

    Level V of the Executive Schedule applies to the following 
positions, for which the annual rate of basic pay shall be the 
rate determined with respect to such level under chapter 11 of 
title 2, as adjusted by section 5318 of this title:
            Administrator, Bonneville Power Administration, 
        Department of the Interior.

           *       *       *       *       *       *       *

            [Commissioner of Patents, Department of Commerce.]

           *       *       *       *       *       *       *

                              ----------                              

               SECTION 3 OF TITLE 35, UNITED STATES CODE

Sec. 3. Officers and employees

    (a) * * *

           *       *       *       *       *       *       *

    (d) The Commissioner of Patents and Trademarks shall be an 
Assistant Secretary of Commerce and shall receive compensation 
at the rate in effect for level III of the Executive Schedule 
under section 5314 of title 5[, United States Code].

           *       *       *       *       *       *       *

                                
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