Union Calendar No. 268

104TH CONGRESS

2D SESSION H. R. 1861

[Report No. 104–554]

A BILL

To make technical corrections in the Satellite Home

17, United States Code.Viewer Act of 1994 and other provisions of title

MAY 6, 1996

Reported with an amendment, committed to the Commitordered to be printed tee of the Whole House on the State of the Union, and
IB

Union Calendar No. 268

104TH CONGRESS

2D SESSION H. R. 1861

[Report No. 104–554]

To make technical corrections in the Satellite Home Viewer Act of 1994

and other provisions of title 17, United States Code.

IN THE HOUSE OF REPRESENTATIVES

JUNE 15, 1995

Mr. MOORHEAD introduced the following bill; which was referred to the

Committee on the Judiciary

MAY 6, 1996

Reported with an amendment, committed to the Committee of the Whole

House on the State of the Union, and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in ÷italic]

[For text of introduced bill, see copy of bill as introduced on June 15, 1995]

A BILL

To make technical corrections in the Satellite Home Viewer

Act of 1994 and other provisions of title 17, United

States Code.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
2

•HR 1861 RH

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Copyright Clarifications

3 Act of 1996’’.

4 SEC. 2. SATELLITE HOME VIEWER ACT.

5 The Satellite Home Viewer Act of 1994 (Public Law

6 103–369) is amended as follows:

7 (1) Section 2(3)(A) is amended to read as fol8 lows:

9 ‘‘(A) in clause (i) by striking ‘12 cents’ and

10 inserting ‘17.5 cents per subscriber in the case of

11 superstations that as retransmitted by the sat12 ellite carrier include any program which, if de13 livered by any cable system in the United States,

14 would be subject to the syndicated exclusivity

15 rules of the Federal Communications Commis16 sion, and 14 cents per subscriber in the case of

17 superstations that are syndex-proof as defined in

18 section 258.2 of title 37, Code of Federal Regula19 tions; and’ ’’.

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

21 ‘‘(4) Subsection (c) is amended—

22 ‘‘(A) in paragraph (1)—

23 ‘‘(i) by striking ‘until December 31,

24 1992,’;

25 ‘‘(ii) by striking ‘(2), (3) or (4)’ and

26 inserting ‘(2) or (3)’; and
3

•HR 1861 RH

1 ‘‘(iii) by striking the second sentence;

2 ‘‘(B) in paragraph (2)—

3 ‘‘(i) in subparagraph (A) by striking

4 ‘July 1, 1991’ and inserting ‘July 1, 1996’;

5 and

6 ‘‘(ii) in subparagraph (D) by striking

7 ‘December 31, 1994’ and inserting ‘Decem8 ber 31, 1999, or in accordance with the

9 terms of the agreement, whichever is later’;

10 and

11 ‘‘(C) in paragraph (3)—

12 ‘‘(i) in subparagraph (A) by striking

13 ‘December 31, 1991’ and inserting ‘January

14 1, 1997’;

15 ‘‘(ii) by amending subparagraph (B)

16 to read as follows:

17 ‘(B) ESTABLISHMENT OF ROYALTY FEES.—

18 In determining royalty fees under this para19 graph, the copyright arbitration royalty panel

20 appointed under chapter 8 shall establish fees for

21 the retransmission of network stations and

22 superstations that most clearly represent the fair

23 market value of secondary transmissions. In de24 termining the fair market value, the panel shall

25 base its decision on economic, competitive, and
4

•HR 1861 RH

1 programming information presented by the par2 ties, including—

3 ‘(i) the competitive environment in

4 which such programming is distributed, the

5 cost of similar signals in similar private

6 and compulsory license marketplaces, and

7 any special features and conditions of the

8 retransmission marketplace;

9 ‘(ii) the economic impact of such fees

10 on copyright owners and satellite carriers;

11 and

12 ‘(iii) the impact on the continued

13 availability of secondary transmissions to

14 the public.’; and

15 ‘‘(iii) in subparagraph (C), by insert16 ing ‘or July 1, 1997, whichever is later’

17 after ‘section 802(g)’.’’.

18 (3) Section 2(5)(A) is amended to read as fol19 lows:

20 ‘‘(A) in paragraph (5)(C) by striking ‘the

21 date of the enactment of the Satellite Home

22 Viewer Act of 1988’ and inserting ‘November 16,

23 1988’; and’’.
5

•HR 1861 RH

1 SEC. 3. COPYRIGHT IN RESTORED WORKS.

2 Section 104A of title 17, United States Code, is amend3 ed as follows:

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

5 follows:

6 ‘‘(3) EXISTING DERIVATIVE WORKS.—(A) In the

7 case of a derivative work that is based upon a re8 stored work and is created—

9 ‘‘(i) before the date of the enactment of the

10 Uruguay Round Agreements Act, if the source

11 country of the restored work is an eligible coun12 try on such date, or

13 ‘‘(ii) before the date of adherence or procla14 mation, if the source country of the restored work

15 is not an eligible country on such date of enact16 ment,a reliance party may continue to exploit

17 that derivative work for the duration of the re18 stored copyright if the reliance party pays to the

19 owner of the restored copyright reasonable com20 pensation for conduct which would be subject to

21 a remedy for infringement but for the provisions

22 of this paragraph.’’.

23 (2) Subsection (e)(1)(B)(ii) is amended by strik24 ing the last sentence.

25 (3) Subsection (h)(2) is amended to read as fol26 lows:
6

•HR 1861 RH

1 ‘‘(2) The ‘date of restoration’ of a restored copy2 right is the later of—

3 ‘‘(A) January 1, 1996, the date on which

4 the Agreement on Trade-Related Aspects of Intel5 lectual Property referred to in section 101(d)(15)

6 of the Uruguay Round Agreements Act enters

7 into force with respect to the United States, if

8 the source country of the restored work is a na9 tion adhering to the Berne Convention or a WTO

10 member country on such date, or

11 ‘‘(B) the date of adherence or proclamation,

12 in the case of any other source country of the re13 stored work.’’.

14 (4) Subsection (h)(3) is amended to read as fol15 lows:

16 ‘‘(3) The term ‘eligible country’ means a nation,

17 other than the United States, that, after the date of

18 the enactment of the Uruguay Round Agreements

19 Act—

20 ‘‘(A) becomes a WTO member,

21 ‘‘(B) is or becomes a member of the Berne

22 Convention, or

23 ‘‘(C) becomes subject to a proclamation

24 under subsection (g).’’.
7

•HR 1861 RH

1 SEC. 4. LICENSES FOR NONEXEMPT SUBSCRIPTION TRANS2 MISSIONS.

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

4 amended—

5 (1) in paragraph (1), by inserting ‘‘, or ending

6 30 days after the Librarian issues and publishes in

7 the Federal Register an order adopting or rejecting

8 the report of the copyright arbitration royalty panel,

9 if such panel is convened’’ after ‘‘December 31, 2000’’;

10 and

11 (2) in paragraph (2), by striking ‘‘and publish

12 in the Federal Register’’.

13 SEC. 5. ROYALTY PAYABLE UNDER COMPULSORY LICENSE.

14 Section 115(c)(3)(D) of title 17, United States Code,

15 is amended by striking ‘‘and publish in the Federal Reg16 ister’’.

17 SEC. 6. NEGOTIATED LICENSE FOR JUKEBOXES.

18 Section 116 of title 17, United States Code, is amend19 ed—

20 (1) by amending subsection (b)(2) to read as fol21 lows:

22 ‘‘(2) ARBITRATION.—Parties not subject to such

23 a negotiation may determine the result of the negotia24 tion by arbitration in accordance with the provisions

25 of chapter 8.’’; and
8

•HR 1861 RH

1 (2) by adding at the end the following new sub2 section:

3 ‘‘(d) DEFINITIONS.—As used in this section, the follow4 ing terms mean the following:

5 ‘‘(1) A ‘coin-operated phonorecord player’ is a

6 machine or device that—

7 ‘‘(A) is employed solely for the performance

8 of nondramatic musical works by means of

9 phonorecords upon being activated by the inser10 tion of coins, currency, tokens, or other monetary

11 units or their equivalent;

12 ‘‘(B) is located in an establishment making

13 no direct or indirect charge for admission;

14 ‘‘(C) is accompanied by a list which is com15 prised of the titles of all the musical works avail16 able for performance on it, and is affixed to the

17 phonorecord player or posted in the establish18 ment in a prominent position where it can be

19 readily examined by the public; and

20 ‘‘(D) affords a choice of works available for

21 performance and permits the choice to be made

22 by the patrons of the establishment in which it

23 is located.

24 ‘‘(2) An ‘operator’ is any person who, alone or

25 jointly with others—
9

•HR 1861 RH

1 ‘‘(A) owns a coin-operated phonorecord

2 player;

3 ‘‘(B) has the power to make a coin-operated

4 phonorecord player available for placement in

5 an establishment for purposes of public perform6 ance; or

7 ‘‘(C) has the power to exercise primary con8 trol over the selection of the musical works made

9 available for public performance on a coin-oper10 ated phonorecord player.’’.

11 SEC. 7. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER

12 PROGRAMS.

13 Section 117 of title 17, United States Code, is amended

14 as follows:

15 (1) Strike ‘‘Notwithstanding’’ and insert the following:

16 ‘‘(a) MAKING OF ADDITIONAL COPY OR ADAPTATION

17 BY OWNER OF COPY.—Notwithstanding’’.

18 (2) Strike ‘‘Any exact’’ and insert the following:

19 ‘‘(b) LEASE, SALE, OR OTHER TRANSFER OF ADDI20 TIONAL COPY OR ADAPTATION.—Any exact’’.

21 (3) Add at the end the following:

22 ‘‘(c) MACHINE MAINTENANCE OR REPAIR.—Notwith23 standing the provisions of section 106, it is not an infringe24 ment for the owner or lessee of a machine to make or author25 ize the making of a copy of a computer program if such
10

•HR 1861 RH

1 copy is made solely by virtue of the activation of a machine

2 that lawfully contains an authorized copy of the computer

3 program, for purposes only of maintenance or repair of that

4 machine, provided that—

5 ‘‘(1) such new copy is used in no other manner

6 and is destroyed immediately after the maintenance

7 or repair is completed, and

8 ‘‘(2) with respect to any computer program or

9 part thereof that is not necessary for that machine to

10 be activated, such program or part thereof is not

11 accessed or used other than to make such new copy by

12 virtue of the activation of the machine.

13 ‘‘(d) DEFINITIONS.—For purposes of this section—

14 ‘‘(1) the term ‘maintenance’ of a machine means

15 servicing the machine in order to make it work in ac16 cordance with its original specifications and any

17 changes to those specifications authorized for that ma18 chine; and

19 ‘‘(2) the term ‘repair’ of a machine means restor20 ing it to the state of working in accordance with its

21 original specifications and any changes to those speci22 fications authorized for that machine.’’.

23 SEC. 8. PUBLIC BROADCASTING COMPULSORY LICENSE.

24 Section 118 of title 17, United States Code, is amended

25 as follows:
11

•HR 1861 RH

1 (1) Subsection (b) is amended by striking para2 graph (1) and redesignating paragraphs (2) and (3)

3 as paragraphs (1) and (2), respectively.

4 (2) Subsection (b)(2) (as redesignated by para5 graph (1) of this section) is amended by striking

6 ‘‘(2)’’ each place it appears and inserting ‘‘(1)’’.

7 (3) Subsection (e) is amended to read as follows:

8 ‘‘(e)(1) Except as expressly provided in this subsection,

9 this section shall not apply to works other than those speci10 fied in subsection (b).

11 ‘‘(2) Owners of copyright in nondramatic literary

12 works and public broadcasting entities may, during the

13 course of voluntary negotiations, agree among themselves,

14 respectively, as to the terms and rates of royalty payments

15 without liability under the antitrust laws. Any such terms

16 and rates of royalty payments shall be effective upon being

17 filed in the Copyright Office, in accordance with regulations

18 that the Register of Copyrights shall prescribe.’’.

19 SEC. 9. REGISTRATION AND INFRINGEMENT ACTIONS.

20 Section 411(b)(1) of title 17, United States Code, is

21 amended to read as follows:

22 ‘‘(1) serves notice upon the infringer, not less

23 than 48 hours before such fixation, identifying the

24 work and the specific time and source of its first
12

•HR 1861 RH

1 transmission, and declaring an intention to secure

2 copyright in the work; and’’.

3 SEC. 10. COPYRIGHT OFFICE FEES.

4 (a) FEE INCREASES.—Section 708(b) of title 17, Unit5 ed States Code, is amended to read as follows:

6 ‘‘(b) In calendar year 1996 and in any subsequent cal7 endar year, the Register of Copyrights, by regulation, may

8 increase the fees specified in subsection (a) in the following

9 manner:

10 ‘‘(1) The Register shall conduct a study of the

11 costs incurred by the Copyright Office for the registra12 tion of claims, the recordation of documents, and the

13 provision of services. The study shall also consider the

14 timing of any increase in fees and the authority to

15 use such fees consistent with the budget.

16 ‘‘(2) The Register shall have discretion to in17 crease fees up to the reasonable costs incurred by the

18 Copyright Office for the services described in para19 graph (1) plus a reasonable inflation adjustment to

20 account for any estimated increase in costs.

21 ‘‘(3) Any newly established fee based on para22 graph (2) shall be rounded off to the nearest dollar,

23 or for a fee less than $12, rounded off to the nearest

24 50 cents.
13

•HR 1861 RH

1 ‘‘(4) The fees shall be fair and equitable and give

2 due consideration to the objectives of the copyright

3 system.

4 ‘‘(5) If upon completion of the study, the Reg5 ister determines that the fees should be increased, the

6 Register shall prepare a proposed fee schedule and

7 submit the schedule with the accompanying economic

8 analysis to the Congress. The fees proposed by the

9 Register may be instituted after the end of 120 days

10 after the schedule is submitted to the Congress unless,

11 within that 120-day period, a law is enacted stating

12 in substance that the Congress does not approve the

13 schedule.’’.

14 (b) DEPOSIT OF FEES.—Section 708(d) of such title

15 is amended to read as follows:

16 ‘‘(d)(1) Except as provided in paragraph (2), all fees

17 received under this section shall be deposited by the Register

18 of Copyrights in the Treasury of the United States and shall

19 be credited to the appropriations for necessary expenses of

20 the Copyright Office. Such fees that are collected shall re21 main available until expended. The Register may, in ac22 cordance with regulations that he or she shall prescribe, re23 fund any sum paid by mistake or in excess of the fee re24 quired by this section.
14

•HR 1861 RH

1 ‘‘(2) In the case of fees deposited against future serv2 ices, the Register of Copyrights shall request the Secretary

3 of the Treasury to invest in interest-bearing securities in

4 the United States Treasury any portion of the fees that,

5 as determined by the Register, is not required to meet cur6 rent deposit account demands. Funds shall be invested in

7 securities that permit funds to be available to the Copyright

8 Office at all times if they are determined to be necessary

9 to meet current deposit account demands. Such investments

10 shall be in public debt securities with maturities suitable

11 to the needs of the fund, as determined by the Register of

12 Copyrights, and bearing interest at rates determined by the

13 Secretary of the Treasury, taking into consideration current

14 market yields on outstanding marketable obligations of the

15 United States of comparable maturities.

16 ‘‘(3) The income on such investments shall be deposited

17 in the Treasury of the United States and shall be credited

18 to the appropriations for necessary expenses of the Copy19 right Office.’’.

20 SEC. 11. COPYRIGHT ARBITRATION ROYALTY PANELS.

21 (a) ESTABLISHMENT AND PURPOSE.—Section 801 of

22 title 17, United States Code, is amended—

23 (1) in subsection (b)(1) by striking ‘‘and 116’’ in

24 the first sentence and inserting ‘‘116, and 119’’;
15

•HR 1861 RH

1 (2) in subsection (c) by inserting after ‘‘panel’’

2 at the end of the sentence the following:

3 ‘‘, including—

4 ‘‘(1) authorizing the distribution of those royalty

5 fees collected under sections 111, 119, and 1005 that

6 the Librarian has found are not subject to con7 troversy; and

8 ‘‘(2) accepting or rejecting royalty claims filed

9 under sections 111, 119, and 1007 on the basis of

10 timeliness or the failure to establish the basis for a

11 claim’’; and

12 (3) by amending subsection (d) to read as fol13 lows:

14 ‘‘(d) SUPPORT AND REIMBURSEMENT OF ARBITRATION

15 PANELS.—The Librarian of Congress, upon the rec16 ommendation of the Register of Copyrights, shall provide

17 the copyright arbitration royalty panels with the necessary

18 administrative services related to proceedings under this

19 chapter, and shall reimburse the arbitrators at such inter20 vals and in such manner as the Librarian shall provide

21 by regulation. Each such arbitrator is an independent con22 tractor acting on behalf of the United States, and shall be

23 paid pursuant to a signed agreement between the Library

24 of Congress and the arbitrator. Payments to the arbitrators
16

•HR 1861 RH

1 shall be considered costs incurred by the Library of Congress

2 and the Copyright Office for purposes of section 802(h)(1).’’.

3 (b) PROCEEDINGS.—Section 802(h)(1) of title 17,

4 United States Code, is amended—

5 (1) by amending the heading to read ‘‘DEDUC6 TION OF COSTS OF LIBRARY OF CONGRESS AND COPY7 RIGHT OFFICE FROM ROYALTY FEES.—’’;

8 (2) in the first sentence by inserting ‘‘to support

9 distribution proceedings’’ after ‘‘Copyright Office’’;

10 and

11 (3) by amending the third sentence to read as

12 follows: ‘‘In ratemaking proceedings, the Librarian of

13 Congress and the Copyright Office may assess their

14 reasonable costs directly to the parties to the most re15 cent relevant arbitration proceeding, 50 percent of the

16 costs to the parties who would receive royalties from

17 the royalty rate adopted in the proceeding and 50

18 percent of the costs to the parties who would pay the

19 royalty rate so adopted, subject to the discretion of the

20 arbitrators to assess costs under subsection (c).’’.

21 SEC. 12. DIGITAL AUDIO RECORDING DEVICES AND MEDIA.

22 Section 1007(b) of title 17, United States Code, is

23 amended by striking ‘‘Within 30 days after’’ in the first

24 sentence and inserting ‘‘After’’.
17

•HR 1861 RH

1 SEC. 13. TREATMENT OF PRE-1978 PUBLICATION OF SOUND

2 RECORDINGS.

3 Section 303 of title 17, United States Code, is amend4 ed—

5 (1) by striking ‘‘Copyright’’ and inserting ‘‘(a)

6 Copyright’’; and

7 (2) by adding at the end the following:

8 ‘‘(b) The distribution before January 1, 1978, of a pho9 norecord shall not for any purpose constitute a publication

10 of the musical work embodied therein.’’.

11 SEC. 14. CONFORMING AMENDMENT.

12 Paragraph (5) of section 4 of the Digital Performance

13 Right in Sound Recordings Act of 1995 is redesignated as

14 paragraph (4).

15 SEC. 15. EFFECTIVE DATES.

16 (a) IN GENERAL.—Except as provided in subsection

17 (b), the amendments made by this Act shall take effect on

18 the date of the enactment of this Act.

19 (b) SATELLITE HOME VIEWER ACT.—The amend20 ments made by section 1 shall be effective as if enacted as

21 part of the Satellite Home Viewer Act of 1994 (Public Law

22 103–369).