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.
Be it enacted by the Senate and House of Representa-
tives 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:
‘‘§ 2319A. Unauthorized fixation of and trafficking in
sound recordings and music videos of
live musical performances
‘‘(a) Whoever, without the consent of a featured per-
former, knowingly and for purposes of commercial advan-
tage 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 per-
formance 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 fixa-
tions 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 sub-
section (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 for-
feiture 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 sei-
zure and forfeiture in the same manner as property im-
ported in violation of the customs revenue laws. The Sec-
retary of the Treasury and the United States Postal Serv-
ice 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 unauthor-
ized 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, trans-
fer, or otherwise dispose of, to another, as consider-
ation for anything of value, or make or obtain con-
trol 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 fea-
tured performer, regardless of when the fixation oc-
curred; 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 fea-
tured 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 auto-
matically 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 reg-
istration 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 copy-
right was ever owned or administered by the Alien
Property Custodian and in which the restored copy-
right would be owned by a government or instrumen-
tality thereof, shall be a restored work.
‘‘(b) OWNERSHIP OF RESTORED COPYRIGHT.—A re-
stored 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 ex-
clusive 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
RE-
STORED 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
RE-
STORED 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 in-
tent 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
‘‘(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 estab-
lished in subsection (d)(2)(A) and shall be published
by the Register of Copyrights in the Federal Reg-
ister 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 Gen-
eral Agreement on Tariffs and Trade becomes effec-
tive 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 en-
force 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 regu-
lar 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 Intellec-
tual 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 gov-
erning the filing under this subsection of notices of
intent to enforce a restored work.
‘‘(ii) Such regulations shall permit owners of re-
stored works to simultaneously obtain registration
for a claim of copyright in the restored work.
‘‘(2) NOTICES OF INTENT SERVED ON A RELI-
ANCE PARTY.—
‘‘(A) Notices of the intent to enforce a re-
stored 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 LI-
ABILITY.—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 adminis-
trative 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 en-
actment of the General Agreement on Tariffs and
Trade Intellectual Property Act of 1994, becomes a
member of the Berne Union or the World Trade Or-
ganization.
‘‘(2) The term ‘date of restoration’ of a re-
stored copyright means—
‘‘(A) the date the Agreement on Trade-Re-
lated Aspects of Intellectual Property of the
General Agreement on Tariffs and Trade be-
comes 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 coun-
try, other than the United States, which, on the date
that copyright is restored under the provisions of
this section, has joined the World Trade Organiza-
tion or adhered to the Berne Convention for the
Protection of Literary and Artistic Works.
‘‘(4) The term ‘reliance party’ means any per-
son who, prior to the date the Agreement on Trade-
Related Aspects of Intellectual Property of the Gen-
eral Agreement on Tariffs and Trade becomes effec-
tive 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 en-
actment of such Act—
‘‘(A) engaged in acts which would have vio-
lated section 106 if the restored work had been
subject to copyright protection, and who, after
the date the Agreement on Trade-Related As-
pects of Intellectual Property of the General
Agreement on Tariffs and Trade becomes effec-
tive with respect to the United States, or after
the date of adherence, continued to engage in
such acts; or
‘‘(B) made substantial monetary invest-
ments in a creation of a work which incor-
porates material portions of a restored work.
‘‘(5) The term ‘restored work’ means an origi-
nal 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 pub-
lished, 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 pub-
lished, 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 sig-
nificant contacts with the work.’’.
(b) LIMITATION.—Section 109(a) of title 17, United
States Code, is amended by adding at the end the follow-
ing:
‘‘(e) the sale or other disposition without the author-
ization 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 sec-
tion 104A may be sold or otherwise disposed of only dur-
ing 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.’’.
Æ
HR 4894 IH——2