```

[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4894 Introduced in House (IH)]

103d CONGRESS
  2d Session
                                H. R. 4894

To prohibit unauthorized fixation of sound recordings and music videos 
   of live musical performances and provide copyright protection in 
            restored works, and for certain other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             August 3, 1994

  Mr. Hughes introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
To prohibit unauthorized fixation of sound recordings and music videos 
   of live musical performances and provide copyright protection in 
            restored works, and for certain other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``General Agreement on Tariffs and 
Trade Copyright Act of 1994''.

SEC. 2. RENTAL RIGHTS IN COMPUTER PROGRAMS.

    Section 804(c) of Public Law 101-650, 104 Stat. 5136, is amended by 
striking the first sentence.

                TITLE I--FEDERAL ANTI-BOOTLEG PROVISIONS

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Federal Anti-Bootleg Act of 
1994''.

SEC. 102. UNAUTHORIZED FIXATION OF AND TRAFFICKING IN SOUND RECORDINGS 
              AND MUSIC VIDEOS OF LIVE MUSICAL PERFORMANCES.

    Title 18, United States Code, is amended by adding the following:
``Sec. 2319A. Unauthorized fixation of and trafficking in sound 
              recordings and music videos of live musical performances
    ``(a) Whoever, without the consent of a featured performer, 
knowingly and for purposes of commercial advantage or private financial 
gain--
            ``(1) fixes the sounds or sounds and images of a live 
        musical performance in a copy or phonorecord, or reproduces 
        phonorecords or copies of such a performance from an 
        unauthorized fixation;
            ``(2) transmits or otherwise communicates to the public the 
        sounds or sounds and images of a live musical performance; or
            ``(3) distributes or offers to distribute, sells or offers 
        to sell, rents or offers to rent, or traffics any copy or 
        phonorecord fixed without the consent of a featured performer, 
        regardless of whether the fixations occurred in the United 
        States;
shall, upon judgment of conviction, be fined not more than $250,000 or 
imprisoned for not more than 5 years, or both.
    ``(b) When a person is convicted of a violation of subsection (a), 
the court shall in its judgment of conviction order the forfeiture and 
destruction of any copies of phonorecords created in violation thereof, 
as well as any plates, molds, matrices, masters, tapes, and film 
negatives by means of which such copies or phonorecords may be made. 
The court may also, in its discretion, order the forfeiture and 
destruction of any other equipment by means of which such copies or 
phonorecords may be reproduced, taking into account the nature, scope, 
and proportionality of the use of the equipment in the offense.
    ``(c) If copies or phonorecords of sounds or sounds and images of a 
live musical performance are fixed outside of the United States without 
the consent of a featured performer, such copies or phonorecords are 
subject to seizure and forfeiture in the same manner as property 
imported in violation of the customs revenue laws. The Secretary of the 
Treasury and the United States Postal Service shall, separately or 
jointly, make regulations for the enforcement of the provisions of this 
subsection, including regulations by which any featured performer may, 
upon payment of a specified fee, be entitled to notification by the 
United States Customs Service of the importation of phonorecords or 
copies that appear to consist of unauthorized fixations of the sounds 
or sounds and images of a live musical performance.
    ``(d) As used in this section--
            ``(1) The terms `copy', `fixed', `musical work', 
        `phonorecord', `reproduce', `sound recordings', and `transmit' 
        have the same meanings given such terms in section 101 of title 
        17, United States Code.
            ``(2) The term `traffic' means transport, transfer, or 
        otherwise dispose of, to another, as consideration for anything 
        of value, or make or obtain control of with intent to 
        transport, transfer, or dispose of.
    ``(e) This section shall apply to the following acts that occur 1 
year after the entry into force of the World Trade Organization 
Agreement--
            ``(1) live musical performances fixed without the consent 
        of a featured performer;
            ``(2) distributions, offers to sell, sales, offers to sell, 
        rentals, offers to rent, or trafficking in any copy or 
        phonorecord fixed without the consent of a featured performer, 
        regardless of when the fixation occurred; and
            ``(3) transmissions or other communications to the public 
        of sounds or sounds and images of a live musical performance 
        fixed without consent of a featured performer.''.

                 TITLE II--COPYRIGHT IN RESTORED WORKS

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Berne and GATT Retroactivity Act 
of 1994''.

SEC. 202. RESTORED WORKS.

    (a) In General.--Section 104A of title 17, United States Code, is 
amended to read as follows:

``SEC. 104A. COPYRIGHT IN RESTORED WORKS.

    ``(a) Automatic Protection and Term.--
            ``(1) Term.--Copyright subsists, in accordance with this 
        section, in restored works, and vests automatically on the date 
        of restoration.
                    ``(A) Copyright in restored works published or 
                registered with the Copyright Office before January 1, 
                1978, shall endure for a term of 75 years from the date 
                of first publication or registration as the case may 
                be.
                    ``(B) Copyright in works created on or after 
                January 1, 1978, shall endure for the term of 
                protection established in section 302.
            ``(2) Exception.--No work in which the copyright was ever 
        owned or administered by the Alien Property Custodian and in 
        which the restored copyright would be owned by a government or 
        instrumentality thereof, shall be a restored work.
    ``(b) Ownership of Restored Copyright.--A restored work vests 
initially in the author of the work as determined according to the law 
of its source country.
    ``(c) Filing of Notice of Intent to Enforce Restored Copyright 
Against Reliance Parties.--Any person owning copyright in a restored 
work or an exclusive right therein may file with the Copyright Office a 
notice of intent to enforce that copyright against reliance parties. 
Acceptance of a notice by the Copyright Office shall not create a 
presumption of the validity of any of the facts stated therein.
    ``(d) Remedies for Infringement of Restored Copyrights.--
            ``(1) Enforcement of copyright in restored works in the 
        absence of a reliance party.--As against any party who is not a 
        reliance party, the remedies provided in chapter 5 of this 
        title shall be available immediately upon restoration with 
        respect to any infringing act commenced on or after the date of 
        restoration.
            ``(2) Enforcement of copyright in restored works as against 
        reliance parties.--As against a reliance party, subject to 
        paragraph (3), the remedies provided in chapter 5 of this title 
        shall be available upon restoration--
                    ``(A)(i) if the owner of the restored work files 
                with the Copyright Office, between the date of 
                restoration and 24 months thereafter, a notice of 
                intent to enforce a restored work; and
                    ``(ii) the act of infringement commenced on or 
                after 12 months from the date of publication of the 
                notice in the Federal Register;
                    ``(B)(i) if the owner of the copyright in the 
                restored work or an exclusive right therein serves upon 
                that reliance party a notice of intent to enforce a 
                restored work; and
                    ``(ii) the act of infringement commenced prior to 
                receipt of the notice;
                    ``(C) if copies of a restored work are made after 
                publication of the notice of intent in the Federal 
                Register; or
                    ``(D) in the case of a particular reliance party, 
                after receipt of a notice of intent to enforce the 
                restored work.
            ``(3) Commencement of infringement for reliance parties.--
        For purposes of section 412, in the case of reliance parties, 
        infringement shall be deemed to have commenced prior to 
        registration when acts which would have constituted 
        infringement were committed prior to the date of the 
        restoration and continued after such date.
    ``(e) Notices of Intent to Enforce a Restored Copyright.--
            ``(1) Notices of intent filed with the copyright office.--
        (A)(i) Notices of intent filed with the Copyright Office to 
        enforce a restored work shall be signed by the owner of the 
        copyright or the owner of the exclusive right filing the notice 
        and shall identify the title of the restored work. If the 
        notice is signed by an agent, the agency relationship must have 
        been constituted in a writing signed by the owner of the 
        restored work or the owner of the exclusive right therein prior 
        to the filing of the notice. The notice may contain any other 
        information specified in regulations established by the 
        Register of Copyrights pursuant to this section.
            ``(ii) If a restored work has no formal title, it shall be 
        described in the notice of intent in detail sufficient to aid 
        in its identification. Minor errors or omissions may be 
        corrected after the period established in subsection (d)(2)(A) 
        and shall be published by the Register of Copyrights in the 
        Federal Register pursuant to subparagraph (B).
            ``(B)(i) The Register of Copyrights shall publish in the 
        Federal Register, commencing not later than 4 months after the 
        date of the Agreement on Trade-Related Aspects of Intellectual 
        Property of the General Agreement on Tariffs and Trade becomes 
        effective with respect to the United States and every 4 months 
        thereafter, lists identifying restored works and the ownership 
        thereof if a notice of intent to enforce a restored work has 
        been filed.
            ``(ii) Not less than 1 list containing all notices of 
        intent to enforce a restored work filed with the Copyright 
        Office shall be maintained in the Public Information Office of 
        the Copyright Office and shall be available for inspection and 
        copying during regular business hours pursuant to sections 705 
        and 708.
            ``(C) The Register of Copyrights is authorized to fix 
        reasonable fees based on the costs of receipt, processing, 
        recording, and publication of notices of intent to enforce a 
        restored work.
            ``(D)(i) Not later than 30 days after the date the 
        Agreement on Trade-Related Aspects of Intellectual Property of 
        the General Agreement on Tariffs and Trade becomes effective 
        with respect to the United States, the Copyright Office shall 
        establish and publish in the Federal Register regulations 
        governing the filing under this subsection of notices of intent 
        to enforce a restored work.
            ``(ii) Such regulations shall permit owners of restored 
        works to simultaneously obtain registration for a claim of 
        copyright in the restored work.
            ``(2) Notices of intent served on a reliance party.--
                    ``(A) Notices of the intent to enforce a restored 
                work may be served by the copyright owner of the 
                restored work or by the owner of any exclusive right 
                therein on a reliance party.
                    ``(B) Such notice shall identify the restored work 
                and the use to which the owner objects and shall 
                include an address and telephone number at which the 
                reliance party may contact the owner.
    ``(f) Immunity From Warranty and Related Liability.--An individual 
who warranted, promised, or guaranteed that a work that such individual 
created did not violate 1 of the exclusive rights granted in section 
106, shall not be liable for legal, equitable, arbitral, or 
administrative relief if the warranty, promise, or guarantee is 
breached by virtue of the restoration of copyright under this section.
    ``(g) Definitions.--For purposes of this section and section 
109(a):
            ``(1) The term `date of adherence' means the earlier of the 
        dates upon which a foreign country that is not a member of the 
        Berne Union or the World Trade Organization, as of the date of 
        the enactment of the General Agreement on Tariffs and Trade 
        Intellectual Property Act of 1994, becomes a member of the 
        Berne Union or the World Trade Organization.
            ``(2) The term `date of restoration' of a restored 
        copyright means--
                    ``(A) the date the Agreement on Trade-Related 
                Aspects of Intellectual Property of the General 
                Agreement on Tariffs and Trade becomes effective with 
                respect to the United States, if the work is a restored 
                work on such date; or
                    ``(B) the date of adherence.
            ``(3) The term `eligible country' means a country, other 
        than the United States, which, on the date that copyright is 
        restored under the provisions of this section, has joined the 
        World Trade Organization or adhered to the Berne Convention for 
        the Protection of Literary and Artistic Works.
            ``(4) The term `reliance party' means any person who, prior 
        to the date the Agreement on Trade-Related Aspects of 
        Intellectual Property of the General Agreement on Tariffs and 
        Trade becomes effective with respect to the United States, or 
        who, prior to the date of adherence of a source country which 
        became an eligible country after the date of the enactment of 
        such Act--
                    ``(A) engaged in acts which would have violated 
                section 106 if the restored work had been subject to 
                copyright protection, and who, after the date the 
                Agreement on Trade-Related Aspects of Intellectual 
                Property of the General Agreement on Tariffs and Trade 
                becomes effective with respect to the United States, or 
                after the date of adherence, continued to engage in 
                such acts; or
                    ``(B) made substantial monetary investments in a 
                creation of a work which incorporates material portions 
                of a restored work.
            ``(5) The term `restored work' means an original work of 
        authorship that--
                    ``(A) is protected under subsection (a);
                    ``(B) is not in the public domain in its source 
                country;
                    ``(C) is in the public domain in the United States 
                due to--
                            ``(i) noncompliance with formalities 
                        imposed at any time by United States copyright 
                        law, including failure of renewal, lack of 
                        proper notice, or failure to comply with any 
                        manufacturing requirement; or
                            ``(ii) lack of subject matter protection in 
                        the case of sound recordings fixed before 
                        February 15, 1972; and
                    ``(D) has not less than 1 author who was, at the 
                time the work was created, a national or domiciliary of 
                an eligible country, and if published, was first 
                published in an eligible country but not published in 
                the United States during the 30-day period following 
                publication in such eligible country.
            ``(6) The term `source country' of a restored work means--
                    ``(A) a country other than the United States;
                    ``(B) in the case of an unpublished work--
                            ``(i) the eligible country in which the 
                        author is a national or domiciliary, or, if a 
                        restored work has more than 1 author, the 
                        majority of foreign authors are nationals or 
                        domiciliaries of such eligible countries; or
                            ``(ii) if the majority of authors are not 
                        foreign, the source country shall be the 
                        country, other than the United States, which 
                        has the most significant contacts with the 
                        work; and
                    ``(C) in the case of a published work, the eligible 
                country in which the work is first published, or if the 
                restored work is published on the same day in 2 or more 
                eligible countries, the source country shall be the 
                country, other than the United States, which has the 
                most significant contacts with the work.''.
    (b) Limitation.--Section 109(a) of title 17, United States Code, is 
amended by adding at the end the following:
    ``(e) the sale or other disposition without the authorization of 
the owner of a restored work of copies or phonorecords manufactured 
before the date of restoration of works in which copyright has been 
restored under section 104A may be sold or otherwise disposed of only 
during the period specified in section 104A(d)(3), and after such 
period, only as part of a sale or disposition of not more than 1 copy 
or phonorecord at a time.''.

                                 <all>

HR 4894 IH----2
```