II

104TH CONGRESS

2D SESSION H. R. 1861

IN THE SENATE OF THE UNITED STATES

JUNE 5, 1996

Received

JULY 12, 1996

Read twice and referred to the Committee on the Judiciary

AN ACT

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,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Copyright Clarifica3 tions 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’

10 and inserting ‘17.5 cents per subscriber in the

11 case of superstations that as retransmitted by

12 the satellite carrier include any program which,

13 if delivered by any cable system in the United

14 States, would be subject to the syndicated ex15 clusivity rules of the Federal Communications

16 Commission, and 14 cents per subscriber in the

17 case of superstations that are syndex-proof as

18 defined in section 258.2 of title 37, Code of

19 Federal Regulations; 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
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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,

5 1996’; and

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

7 ‘December 31, 1994’ and inserting ‘De8 cember 31, 1999, or in accordance with

9 the terms of the agreement, whichever is

10 later’; and

11 ‘‘(C) in paragraph (3)—

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

13 ‘December 31, 1991’ and inserting ‘Janu14 ary 1, 1997’;

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

16 to read as follows:

17 ‘(B) ESTABLISHMENT OF ROYALTY

18 FEES.—In determining royalty fees under this

19 paragraph, the copyright arbitration royalty

20 panel appointed under chapter 8 shall establish

21 fees for the retransmission of network stations

22 and superstations that most clearly represent

23 the fair market value of secondary trans24 missions. In determining the fair market value,

25 the panel shall base its decision on economic,
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1 competitive, and programming information pre2 sented by the parties, including—

3 ‘(i) the competitive environment in

4 which such programming is distributed,

5 the cost of similar signals in similar pri6 vate and compulsory license marketplaces,

7 and any special features and conditions of

8 the 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

23 16, 1988’; and’’.
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1 SEC. 3. COPYRIGHT IN RESTORED WORKS.

2 Section 104A of title 17, United States Code, is

3 amended as follows:

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

5 follows:

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

7 the case of a derivative work that is based upon a

8 restored work and is created—

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

10 the Uruguay Round Agreements Act, if the

11 source country of the restored work is an eligi12 ble country on such date, or

13 ‘‘(ii) before the date of adherence or proc14 lamation, if the source country of the restored

15 work is not an eligible country on such date of

16 enactment,a reliance party may continue to ex17 ploit that derivative work for the duration of

18 the restored copyright if the reliance party pays

19 to the owner of the restored copyright reason20 able compensation for conduct which would be

21 subject to a remedy for infringement but for

22 the provisions of this paragraph.’’.

23 (2) Subsection (e)(1)(B)(ii) is amended by

24 striking the last sentence.

25 (3) Subsection (h)(2) is amended to read as fol26 lows:
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1 ‘‘(2) The ‘date of restoration’ of a restored

2 copyright is the later of—

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

4 the Agreement on Trade-Related Aspects of In5 tellectual Property referred to in section

6 101(d)(15) of the Uruguay Round Agreements

7 Act enters into force with respect to the United

8 States, if the source country of the restored

9 work is a nation adhering to the Berne Conven10 tion or a WTO member country on such date,

11 or

12 ‘‘(B) the date of adherence or proclama13 tion, in the case of any other source country of

14 the restored work.’’.

15 (4) Subsection (h)(3) is amended to read as fol16 lows:

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

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

19 the enactment of the Uruguay Round Agreements

20 Act—

21 ‘‘(A) becomes a WTO member,

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

23 Convention, or

24 ‘‘(C) becomes subject to a proclamation

25 under subsection (g).’’.
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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,

10 2000’’; 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

19 amended—

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

21 follows:

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

23 such a negotiation may determine the result of the

24 negotiation by arbitration in accordance with the

25 provisions of chapter 8.’’; and
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1 (2) by adding at the end the following new sub2 section:

3 ‘‘(d) DEFINITIONS.—As used in this section, the fol4 lowing 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 perform8 ance of nondramatic musical works by means of

9 phonorecords upon being activated by the inser10 tion of coins, currency, tokens, or other mone11 tary 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

15 comprised of the titles of all the musical works

16 available for performance on it, and is affixed

17 to the phonorecord player or posted in the es18 tablishment in a prominent position where it

19 can be readily examined by the public; and

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

21 for performance and permits the choice to be

22 made by the patrons of the establishment in

23 which it is located.

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

25 jointly with others—
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1 ‘‘(A) owns a coin-operated phonorecord

2 player;

3 ‘‘(B) has the power to make a coin-oper4 ated phonorecord player available for placement

5 in an establishment for purposes of public per6 formance; or

7 ‘‘(C) has the power to exercise primary

8 control over the selection of the musical works

9 made available for public performance on a

10 coin-operated phonorecord player.’’.

11 SEC. 7. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER

12 PROGRAMS.

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

14 amended as follows:

15 (1) Strike ‘‘Notwithstanding’’ and insert the follow16 ing:

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

18 BY OWNER OF COPY.—Notwithstanding’’.

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

20 ‘‘(b) LEASE, SALE, OR OTHER TRANSFER OF ADDI21 TIONAL COPY OR ADAPTATION.—Any exact’’.

22 (3) Add at the end the following:

23 ‘‘(c) MACHINE MAINTENANCE OR REPAIR.—Notwith24 standing the provisions of section 106, it is not an in25 fringement for the owner or lessee of a machine to make
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1 or authorize the making of a copy of a computer program

2 if such copy is made solely by virtue of the activation of

3 a machine that lawfully contains an authorized copy of

4 the computer program, for purposes only of maintenance

5 or repair of that machine, provided that—

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

7 and is destroyed immediately after the maintenance

8 or repair is completed, and

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

10 part thereof that is not necessary for that machine

11 to be activated, such program or part thereof is not

12 accessed or used other than to make such new copy

13 by virtue of the activation of the machine.

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

15 ‘‘(1) the term ‘maintenance’ of a machine

16 means servicing the machine in order to make it

17 work in accordance with its original specifications

18 and any changes to those specifications authorized

19 for that machine; and

20 ‘‘(2) the term ‘repair’ of a machine means re21 storing it to the state of working in accordance with

22 its original specifications and any changes to those

23 specifications authorized for that machine.’’.
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1 SEC. 8. PUBLIC BROADCASTING COMPULSORY LICENSE.

2 Section 118 of title 17, United States Code, is

3 amended as follows:

4 (1) Subsection (b) is amended by striking para5 graph (1) and redesignating paragraphs (2) and (3)

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

7 (2) Subsection (b)(2) (as redesignated by para8 graph (1) of this section) is amended by striking

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

10 (3) Subsection (e) is amended to read as fol11 lows:

12 ‘‘(e)(1) Except as expressly provided in this sub13 section, this section shall not apply to works other than

14 those specified in subsection (b).

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

16 works and public broadcasting entities may, during the

17 course of voluntary negotiations, agree among themselves,

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

19 without liability under the antitrust laws. Any such terms

20 and rates of royalty payments shall be effective upon being

21 filed in the Copyright Office, in accordance with regula22 tions that the Register of Copyrights shall prescribe.’’.

23 SEC. 9. REGISTRATION AND INFRINGEMENT ACTIONS.

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

25 amended to read as follows:
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1 ‘‘(1) serves notice upon the infringer, not less

2 than 48 hours before such fixation, identifying the

3 work and the specific time and source of its first

4 transmission, and declaring an intention to secure

5 copyright in the work; and’’.

6 SEC. 10. COPYRIGHT OFFICE FEES.

7 (a) FEE INCREASES.—Section 708(b) of title 17,

8 United States Code, is amended to read as follows:

9 ‘‘(b) In calendar year 1996 and in any subsequent

10 calendar year, the Register of Copyrights, by regulation,

11 may increase the fees specified in subsection (a) in the

12 following manner:

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

14 costs incurred by the Copyright Office for the reg15 istration of claims, the recordation of documents,

16 and the provision of services. The study shall also

17 consider the timing of any increase in fees and the

18 authority to use such fees consistent with the budg19 et.

20 ‘‘(2) The Register shall have discretion to in21 crease fees up to the reasonable costs incurred by

22 the Copyright Office for the services described in

23 paragraph (1) plus a reasonable inflation adjustment

24 to account for any estimated increase in costs.
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1 ‘‘(3) Any newly established fee based on para2 graph (2) shall be rounded off to the nearest dollar,

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

4 50 cents.

5 ‘‘(4) The fees shall be fair and equitable and

6 give due consideration to the objectives of the copy7 right system.

8 ‘‘(5) If upon completion of the study, the Reg9 ister determines that the fees should be increased,

10 the Register shall prepare a proposed fee schedule

11 and submit the schedule with the accompanying eco12 nomic analysis to the Congress. The fees proposed

13 by the Register may be instituted after the end of

14 120 days after the schedule is submitted to the Con15 gress unless, within that 120-day period, a law is en16 acted stating in substance that the Congress does

17 not approve the schedule.’’.

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

19 is amended to read as follows:

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

21 received under this section shall be deposited by the Reg22 ister of Copyrights in the Treasury of the United States

23 and shall be credited to the appropriations for necessary

24 expenses of the Copyright Office. Such fees that are col25 lected shall remain available until expended. The Register
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1 may, in accordance with regulations that he or she shall

2 prescribe, refund any sum paid by mistake or in excess

3 of the fee required by this section.

4 ‘‘(2) In the case of fees deposited against future serv5 ices, the Register of Copyrights shall request the Secretary

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

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

8 as determined by the Register, is not required to meet cur9 rent deposit account demands. Funds shall be invested in

10 securities that permit funds to be available to the Copy11 right Office at all times if they are determined to be nec12 essary to meet current deposit account demands. Such in13 vestments shall be in public debt securities with maturities

14 suitable to the needs of the fund, as determined by the

15 Register of Copyrights, and bearing interest at rates de16 termined by the Secretary of the Treasury, taking into

17 consideration current market yields on outstanding mar18 ketable obligations of the United States of comparable ma19 turities.

20 ‘‘(3) The income on such investments shall be depos21 ited in the Treasury of the United States and shall be

22 credited to the appropriations for necessary expenses of

23 the Copyright Office.’’.
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1 SEC. 11. COPYRIGHT ARBITRATION ROYALTY PANELS.

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

3 title 17, United States Code, is amended—

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

5 in the first sentence and inserting ‘‘116, and 119’’;

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

7 at the end of the sentence the following:

8 ‘‘, including—

9 ‘‘(1) authorizing the distribution of those roy10 alty fees collected under sections 111, 119, and

11 1005 that the Librarian has found are not subject

12 to controversy; and

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

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

15 timeliness or the failure to establish the basis for a

16 claim’’; and

17 (3) by amending subsection (d) to read as fol18 lows:

19 ‘‘(d) SUPPORT AND REIMBURSEMENT OF ARBITRA20 TION PANELS.—The Librarian of Congress, upon the rec21 ommendation of the Register of Copyrights, shall provide

22 the copyright arbitration royalty panels with the necessary

23 administrative services related to proceedings under this

24 chapter, and shall reimburse the arbitrators at such inter25 vals and in such manner as the Librarian shall provide

26 by regulation. Each such arbitrator is an independent con-
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1 tractor acting on behalf of the United States, and shall

2 be paid pursuant to a signed agreement between the Li3 brary of Congress and the arbitrator. Payments to the ar4 bitrators shall be considered costs incurred by the Library

5 of Congress and the Copyright Office for purposes of sec6 tion 802(h)(1).’’.

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

8 United States Code, is amended—

9 (1) by amending the heading to read ‘‘DEDUC10 TION OF COSTS OF LIBRARY OF CONGRESS AND

11 COPYRIGHT OFFICE FROM ROYALTY FEES.—’’;

12 (2) in the first sentence by inserting ‘‘to sup13 port distribution proceedings’’ after ‘‘Copyright Of14 fice’’; and

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

16 follows: ‘‘In ratemaking proceedings, the Librarian

17 of Congress and the Copyright Office may assess

18 their reasonable costs directly to the parties to the

19 most recent relevant arbitration proceeding, 50 per20 cent of the costs to the parties who would receive

21 royalties from the royalty rate adopted in the pro22 ceeding and 50 percent of the costs to the parties

23 who would pay the royalty rate so adopted, subject

24 to the discretion of the arbitrators to assess costs

25 under subsection (c).’’.
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1 SEC. 12. DIGITAL AUDIO RECORDING DEVICES AND MEDIA.

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

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

4 sentence and inserting ‘‘After’’.

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

6 RECORDINGS.

7 Section 303 of title 17, United States Code, is

8 amended—

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

10 Copyright’’; and

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

12 ‘‘(b) The distribution before January 1, 1978, of a

13 phonorecord shall not for any purpose constitute a publi14 cation of the musical work embodied therein.’’.

15 SEC. 14. CONFORMING AMENDMENT.

16 Paragraph (5) of section 4 of the Digital Perform17 ance Right in Sound Recordings Act of 1995 is redesig18 nated as paragraph (4).

19 SEC. 15. EFFECTIVE DATES.

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

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

22 on the date of the enactment of this Act.

23 (b) SATELLITE HOME VIEWER ACT.—The amend24 ments made by section 1 shall be effective as if enacted
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1 as part of the Satellite Home Viewer Act of 1994 (Public

2 Law 103–369).

Passed the House of Representatives June 4, 1996.

Attest: ROBIN H. CARLE,

Clerk.