I

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘General Agreement

5 on Tariffs and Trade Copyright Act of 1994’’.

6 SEC. 2. RENTAL RIGHTS IN COMPUTER PROGRAMS.

7 Section 804(c) of Public Law 101–650, 104 Stat.

8 5136, is amended by striking the first sentence.
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1 TITLE I—FEDERAL ANTI2 BOOTLEG PROVISIONS

3 SEC. 101. SHORT TITLE.

4 This title may be cited as the ‘‘Federal Anti-Bootleg

5 Act of 1994’’.

6 SEC. 102. UNAUTHORIZED FIXATION OF AND TRAFFICKING

7 IN SOUND RECORDINGS AND MUSIC VIDEOS

8 OF LIVE MUSICAL PERFORMANCES.

9 Title 18, United States Code, is amended by adding

10 the following:

11 ‘‘§ 2319A. Unauthorized fixation of and trafficking in

12 sound recordings and music videos of

13 live musical performances

14 ‘‘(a) Whoever, without the consent of a featured per15 former, knowingly and for purposes of commercial advan16 tage or private financial gain—

17 ‘‘(1) fixes the sounds or sounds and images of

18 a live musical performance in a copy or phonorecord,

19 or reproduces phonorecords or copies of such a per20 formance from an unauthorized fixation;

21 ‘‘(2) transmits or otherwise communicates to

22 the public the sounds or sounds and images of a live

23 musical performance; or

24 ‘‘(3) distributes or offers to distribute, sells or

25 offers to sell, rents or offers to rent, or traffics any
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1 copy or phonorecord fixed without the consent of a

2 featured performer, regardless of whether the fixa3 tions occurred in the United States;

4 shall, upon judgment of conviction, be fined not more than

5 $250,000 or imprisoned for not more than 5 years, or

6 both.

7 ‘‘(b) When a person is convicted of a violation of sub8 section (a), the court shall in its judgment of conviction

9 order the forfeiture and destruction of any copies of

10 phonorecords created in violation thereof, as well as any

11 plates, molds, matrices, masters, tapes, and film negatives

12 by means of which such copies or phonorecords may be

13 made. The court may also, in its discretion, order the for14 feiture and destruction of any other equipment by means

15 of which such copies or phonorecords may be reproduced,

16 taking into account the nature, scope, and proportionality

17 of the use of the equipment in the offense.

18 ‘‘(c) If copies or phonorecords of sounds or sounds

19 and images of a live musical performance are fixed outside

20 of the United States without the consent of a featured

21 performer, such copies or phonorecords are subject to sei22 zure and forfeiture in the same manner as property im23 ported in violation of the customs revenue laws. The Sec24 retary of the Treasury and the United States Postal Serv25 ice shall, separately or jointly, make regulations for the
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1 enforcement of the provisions of this subsection, including

2 regulations by which any featured performer may, upon

3 payment of a specified fee, be entitled to notification by

4 the United States Customs Service of the importation of

5 phonorecords or copies that appear to consist of unauthor6 ized fixations of the sounds or sounds and images of a

7 live musical performance.

8 ‘‘(d) As used in this section—

9 ‘‘(1) The terms ‘copy’, ‘fixed’, ‘musical work’,

10 ‘phonorecord’, ‘reproduce’, ‘sound recordings’, and

11 ‘transmit’ have the same meanings given such terms

12 in section 101 of title 17, United States Code.

13 ‘‘(2) The term ‘traffic’ means transport, trans14 fer, or otherwise dispose of, to another, as consider15 ation for anything of value, or make or obtain con16 trol of with intent to transport, transfer, or dispose

17 of.

18 ‘‘(e) This section shall apply to the following acts that

19 occur 1 year after the entry into force of the World Trade

20 Organization Agreement—

21 ‘‘(1) live musical performances fixed without

22 the consent of a featured performer;

23 ‘‘(2) distributions, offers to sell, sales, offers to

24 sell, rentals, offers to rent, or trafficking in any copy

25 or phonorecord fixed without the consent of a fea-
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1 tured performer, regardless of when the fixation oc2 curred; and

3 ‘‘(3) transmissions or other communications to

4 the public of sounds or sounds and images of a live

5 musical performance fixed without consent of a fea6 tured performer.’’.

7 TITLE II—COPYRIGHT IN

8 RESTORED WORKS

9 SEC. 201. SHORT TITLE.

10 This title may be cited as the ‘‘Berne and GATT

11 Retroactivity Act of 1994’’.

12 SEC. 202. RESTORED WORKS.

13 (a) IN GENERAL.—Section 104A of title 17, United

14 States Code, is amended to read as follows:

15 ‘‘SEC. 104A. COPYRIGHT IN RESTORED WORKS.

16 ‘‘(a) AUTOMATIC PROTECTION AND TERM.—

17 ‘‘(1) TERM.—Copyright subsists, in accordance

18 with this section, in restored works, and vests auto19 matically on the date of restoration.

20 ‘‘(A) Copyright in restored works published

21 or registered with the Copyright Office before

22 January 1, 1978, shall endure for a term of 75

23 years from the date of first publication or reg24 istration as the case may be.
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1 ‘‘(B) Copyright in works created on or

2 after January 1, 1978, shall endure for the

3 term of protection established in section 302.

4 ‘‘(2) EXCEPTION.—No work in which the copy5 right was ever owned or administered by the Alien

6 Property Custodian and in which the restored copy7 right would be owned by a government or instrumen8 tality thereof, shall be a restored work.

9 ‘‘(b) OWNERSHIP OF RESTORED COPYRIGHT.—A re10 stored work vests initially in the author of the work as

11 determined according to the law of its source country.

12 ‘‘(c) FILING OF NOTICE OF INTENT TO ENFORCE

13 RESTORED COPYRIGHT AGAINST RELIANCE PARTIES.—

14 Any person owning copyright in a restored work or an ex15 clusive right therein may file with the Copyright Office

16 a notice of intent to enforce that copyright against reliance

17 parties. Acceptance of a notice by the Copyright Office

18 shall not create a presumption of the validity of any of

19 the facts stated therein.

20 ‘‘(d) REMEDIES FOR INFRINGEMENT OF RESTORED

21 COPYRIGHTS.—

22 ‘‘(1) ENFORCEMENT OF COPYRIGHT IN RE23 STORED WORKS IN THE ABSENCE OF A RELIANCE

24 PARTY.—As against any party who is not a reliance

25 party, the remedies provided in chapter 5 of this
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1 title shall be available immediately upon restoration

2 with respect to any infringing act commenced on or

3 after the date of restoration.

4 ‘‘(2) ENFORCEMENT OF COPYRIGHT IN RE5 STORED WORKS AS AGAINST RELIANCE PARTIES.—

6 As against a reliance party, subject to paragraph

7 (3), the remedies provided in chapter 5 of this title

8 shall be available upon restoration—

9 ‘‘(A)(i) if the owner of the restored work

10 files with the Copyright Office, between the

11 date of restoration and 24 months thereafter, a

12 notice of intent to enforce a restored work; and

13 ‘‘(ii) the act of infringement commenced on

14 or after 12 months from the date of publication

15 of the notice in the Federal Register;

16 ‘‘(B)(i) if the owner of the copyright in the

17 restored work or an exclusive right therein

18 serves upon that reliance party a notice of in19 tent to enforce a restored work; and

20 ‘‘(ii) the act of infringement commenced

21 prior to receipt of the notice;

22 ‘‘(C) if copies of a restored work are made

23 after publication of the notice of intent in the

24 Federal Register; or
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1 ‘‘(D) in the case of a particular reliance

2 party, after receipt of a notice of intent to en3 force the restored work.

4 ‘‘(3) COMMENCEMENT OF INFRINGEMENT FOR

5 RELIANCE PARTIES.—For purposes of section 412,

6 in the case of reliance parties, infringement shall be

7 deemed to have commenced prior to registration

8 when acts which would have constituted infringe9 ment were committed prior to the date of the res10 toration and continued after such date.

11 ‘‘(e) NOTICES OF INTENT TO ENFORCE A RESTORED

12 COPYRIGHT.—

13 ‘‘(1) NOTICES OF INTENT FILED WITH THE

14 COPYRIGHT OFFICE.—(A)(i) Notices of intent filed

15 with the Copyright Office to enforce a restored work

16 shall be signed by the owner of the copyright or the

17 owner of the exclusive right filing the notice and

18 shall identify the title of the restored work. If the

19 notice is signed by an agent, the agency relationship

20 must have been constituted in a writing signed by

21 the owner of the restored work or the owner of the

22 exclusive right therein prior to the filing of the no23 tice. The notice may contain any other information

24 specified in regulations established by the Register

25 of Copyrights pursuant to this section.
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1 ‘‘(ii) If a restored work has no formal title, it

2 shall be described in the notice of intent in detail

3 sufficient to aid in its identification. Minor errors or

4 omissions may be corrected after the period estab5 lished in subsection (d)(2)(A) and shall be published

6 by the Register of Copyrights in the Federal Reg7 ister pursuant to subparagraph (B).

8 ‘‘(B)(i) The Register of Copyrights shall publish

9 in the Federal Register, commencing not later than

10 4 months after the date of the Agreement on Trade11 Related Aspects of Intellectual Property of the Gen12 eral Agreement on Tariffs and Trade becomes effec13 tive with respect to the United States and every 4

14 months thereafter, lists identifying restored works

15 and the ownership thereof if a notice of intent to en16 force a restored work has been filed.

17 ‘‘(ii) Not less than 1 list containing all notices

18 of intent to enforce a restored work filed with the

19 Copyright Office shall be maintained in the Public

20 Information Office of the Copyright Office and shall

21 be available for inspection and copying during regu22 lar business hours pursuant to sections 705 and

23 708.

24 ‘‘(C) The Register of Copyrights is authorized

25 to fix reasonable fees based on the costs of receipt,
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1 processing, recording, and publication of notices of

2 intent to enforce a restored work.

3 ‘‘(D)(i) Not later than 30 days after the date

4 the Agreement on Trade-Related Aspects of Intellec5 tual Property of the General Agreement on Tariffs

6 and Trade becomes effective with respect to the

7 United States, the Copyright Office shall establish

8 and publish in the Federal Register regulations gov9 erning the filing under this subsection of notices of

10 intent to enforce a restored work.

11 ‘‘(ii) Such regulations shall permit owners of re12 stored works to simultaneously obtain registration

13 for a claim of copyright in the restored work.

14 ‘‘(2) NOTICES OF INTENT SERVED ON A RELI15 ANCE PARTY.—

16 ‘‘(A) Notices of the intent to enforce a re17 stored work may be served by the copyright

18 owner of the restored work or by the owner of

19 any exclusive right therein on a reliance party.

20 ‘‘(B) Such notice shall identify the restored

21 work and the use to which the owner objects

22 and shall include an address and telephone

23 number at which the reliance party may contact

24 the owner.
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1 ‘‘(f) IMMUNITY FROM WARRANTY AND RELATED LI2 ABILITY.—An individual who warranted, promised, or

3 guaranteed that a work that such individual created did

4 not violate 1 of the exclusive rights granted in section 106,

5 shall not be liable for legal, equitable, arbitral, or adminis6 trative relief if the warranty, promise, or guarantee is

7 breached by virtue of the restoration of copyright under

8 this section.

9 ‘‘(g) DEFINITIONS.—For purposes of this section and

10 section 109(a):

11 ‘‘(1) The term ‘date of adherence’ means the

12 earlier of the dates upon which a foreign country

13 that is not a member of the Berne Union or the

14 World Trade Organization, as of the date of the en15 actment of the General Agreement on Tariffs and

16 Trade Intellectual Property Act of 1994, becomes a

17 member of the Berne Union or the World Trade Or18 ganization.

19 ‘‘(2) The term ‘date of restoration’ of a re20 stored copyright means—

21 ‘‘(A) the date the Agreement on Trade-Re22 lated Aspects of Intellectual Property of the

23 General Agreement on Tariffs and Trade be24 comes effective with respect to the United
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1 States, if the work is a restored work on such

2 date; or

3 ‘‘(B) the date of adherence.

4 ‘‘(3) The term ‘eligible country’ means a coun5 try, other than the United States, which, on the date

6 that copyright is restored under the provisions of

7 this section, has joined the World Trade Organiza8 tion or adhered to the Berne Convention for the

9 Protection of Literary and Artistic Works.

10 ‘‘(4) The term ‘reliance party’ means any per11 son who, prior to the date the Agreement on Trade12 Related Aspects of Intellectual Property of the Gen13 eral Agreement on Tariffs and Trade becomes effec14 tive with respect to the United States, or who, prior

15 to the date of adherence of a source country which

16 became an eligible country after the date of the en17 actment of such Act—

18 ‘‘(A) engaged in acts which would have vio19 lated section 106 if the restored work had been

20 subject to copyright protection, and who, after

21 the date the Agreement on Trade-Related As22 pects of Intellectual Property of the General

23 Agreement on Tariffs and Trade becomes effec24 tive with respect to the United States, or after
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1 the date of adherence, continued to engage in

2 such acts; or

3 ‘‘(B) made substantial monetary invest4 ments in a creation of a work which incor5 porates material portions of a restored work.

6 ‘‘(5) The term ‘restored work’ means an origi7 nal work of authorship that—

8 ‘‘(A) is protected under subsection (a);

9 ‘‘(B) is not in the public domain in its

10 source country;

11 ‘‘(C) is in the public domain in the United

12 States due to—

13 ‘‘(i) noncompliance with formalities

14 imposed at any time by United States

15 copyright law, including failure of renewal,

16 lack of proper notice, or failure to comply

17 with any manufacturing requirement; or

18 ‘‘(ii) lack of subject matter protection

19 in the case of sound recordings fixed before

20 February 15, 1972; and

21 ‘‘(D) has not less than 1 author who was,

22 at the time the work was created, a national or

23 domiciliary of an eligible country, and if pub24 lished, was first published in an eligible country

25 but not published in the United States during
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1 the 30-day period following publication in such

2 eligible country.

3 ‘‘(6) The term ‘source country’ of a restored

4 work means—

5 ‘‘(A) a country other than the United

6 States;

7 ‘‘(B) in the case of an unpublished work—

8 ‘‘(i) the eligible country in which the

9 author is a national or domiciliary, or, if a

10 restored work has more than 1 author, the

11 majority of foreign authors are nationals

12 or domiciliaries of such eligible countries;

13 or

14 ‘‘(ii) if the majority of authors are not

15 foreign, the source country shall be the

16 country, other than the United States,

17 which has the most significant contacts

18 with the work; and

19 ‘‘(C) in the case of a published work, the

20 eligible country in which the work is first pub21 lished, or if the restored work is published on

22 the same day in 2 or more eligible countries,

23 the source country shall be the country, other

24 than the United States, which has the most sig25 nificant contacts with the work.’’.
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1 (b) LIMITATION.—Section 109(a) of title 17, United

2 States Code, is amended by adding at the end the follow3 ing:

4 ‘‘(e) the sale or other disposition without the author5 ization of the owner of a restored work of copies or

6 phonorecords manufactured before the date of restoration

7 of works in which copyright has been restored under sec8 tion 104A may be sold or otherwise disposed of only dur9 ing the period specified in section 104A(d)(3), and after

10 such period, only as part of a sale or disposition of not

11 more than 1 copy or phonorecord at a time.’’.

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