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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
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SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Copyright Clarifica-
tions Act of 1996’’.
SEC. 2. SATELLITE HOME VIEWER ACT.
The Satellite Home Viewer Act of 1994 (Public Law
103–369) is amended as follows:
(1) Section 2(3)(A) is amended to read as fol-
lows:
‘‘(A) in clause (i) by striking ‘12 cents’
and inserting ‘17.5 cents per subscriber in the
case of superstations that as retransmitted by
the satellite carrier include any program which,
if delivered by any cable system in the United
States, would be subject to the syndicated ex-
clusivity rules of the Federal Communications
Commission, and 14 cents per subscriber in the
case of superstations that are syndex-proof as
defined in section 258.2 of title 37, Code of
Federal Regulations; and’ ’’.
(2) Section 2(4) is amended to read as follows:
‘‘(4) Subsection (c) is amended—
‘‘(A) in paragraph (1)—
‘‘(i) by striking ‘until December 31,
1992,’;
‘‘(ii) by striking ‘(2), (3) or (4)’ and
inserting ‘(2) or (3)’; and
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‘‘(iii) by striking the second sentence;
‘‘(B) in paragraph (2)—
‘‘(i) in subparagraph (A) by striking
‘July 1, 1991’ and inserting ‘July 1,
1996’; and
‘‘(ii) in subparagraph (D) by striking
‘December 31, 1994’ and inserting ‘De-
cember 31, 1999, or in accordance with
the terms of the agreement, whichever is
later’; and
‘‘(C) in paragraph (3)—
‘‘(i) in subparagraph (A) by striking
‘December 31, 1991’ and inserting ‘Janu-
ary 1, 1997’;
‘‘(ii) by amending subparagraph (B)
to read as follows:
‘(B) 
ESTABLISHMENT
OF
ROYALTY
FEES.—In determining royalty fees under this
paragraph, the copyright arbitration royalty
panel appointed under chapter 8 shall establish
fees for the retransmission of network stations
and superstations that most clearly represent
the fair market value of secondary trans-
missions. In determining the fair market value,
the panel shall base its decision on economic,
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competitive, and programming information pre-
sented by the parties, including—
‘(i) the competitive environment in
which such programming is distributed,
the cost of similar signals in similar pri-
vate and compulsory license marketplaces,
and any special features and conditions of
the retransmission marketplace;
‘(ii) the economic impact of such fees
on copyright owners and satellite carriers;
and
‘(iii) the impact on the continued
availability of secondary transmissions to
the public.’; and
‘‘(iii) in subparagraph (C), by insert-
ing ‘or July 1, 1997, whichever is later’
after ‘section 802(g)’.’’.
(3) Section 2(5)(A) is amended to read as fol-
lows:
‘‘(A) in paragraph (5)(C) by striking ‘the
date of the enactment of the Satellite Home
Viewer Act of 1988’ and inserting ‘November
16, 1988’; and’’.
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SEC. 3. COPYRIGHT IN RESTORED WORKS.
Section 104A of title 17, United States Code, is
amended as follows:
(1) Subsection (d)(3)(A) is amended to read as
follows:
‘‘(3) EXISTING
DERIVATIVE
WORKS.—(A) In
the case of a derivative work that is based upon a
restored work and is created—
‘‘(i) before the date of the enactment of
the Uruguay Round Agreements Act, if the
source country of the restored work is an eligi-
ble country on such date, or
‘‘(ii) before the date of adherence or proc-
lamation, if the source country of the restored
work is not an eligible country on such date of
enactment,a reliance party may continue to ex-
ploit that derivative work for the duration of
the restored copyright if the reliance party pays
to the owner of the restored copyright reason-
able compensation for conduct which would be
subject to a remedy for infringement but for
the provisions of this paragraph.’’.
(2) Subsection (e)(1)(B)(ii) is amended by
striking the last sentence.
(3) Subsection (h)(2) is amended to read as fol-
lows:
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‘‘(2) The ‘date of restoration’ of a restored
copyright is the later of—
‘‘(A) January 1, 1996, the date on which
the Agreement on Trade-Related Aspects of In-
tellectual Property referred to in section
101(d)(15) of the Uruguay Round Agreements
Act enters into force with respect to the United
States, if the source country of the restored
work is a nation adhering to the Berne Conven-
tion or a WTO member country on such date,
or
‘‘(B) the date of adherence or proclama-
tion, in the case of any other source country of
the restored work.’’.
(4) Subsection (h)(3) is amended to read as fol-
lows:
‘‘(3) The term ‘eligible country’ means a nation,
other than the United States, that, after the date of
the enactment of the Uruguay Round Agreements
Act—
‘‘(A) becomes a WTO member,
‘‘(B) is or becomes a member of the Berne
Convention, or
‘‘(C) becomes subject to a proclamation
under subsection (g).’’.
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SEC. 4. LICENSES FOR NONEXEMPT SUBSCRIPTION TRANS-
MISSIONS.
Section 114(f) of title 17, United States Code, is
amended—
(1) in paragraph (1), by inserting ‘‘, or ending
30 days after the Librarian issues and publishes in
the Federal Register an order adopting or rejecting
the report of the copyright arbitration royalty panel,
if such panel is convened’’ after ‘‘December 31,
2000’’; and
(2) in paragraph (2), by striking ‘‘and publish
in the Federal Register’’.
SEC. 5. ROYALTY PAYABLE UNDER COMPULSORY LICENSE.
Section 115(c)(3)(D) of title 17, United States Code,
is amended by striking ‘‘and publish in the Federal Reg-
ister’’.
SEC. 6. NEGOTIATED LICENSE FOR JUKEBOXES.
Section 116 of title 17, United States Code, is
amended—
(1) by amending subsection (b)(2) to read as
follows:
‘‘(2) ARBITRATION.—Parties not subject to
such a negotiation may determine the result of the
negotiation by arbitration in accordance with the
provisions of chapter 8.’’; and
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(2) by adding at the end the following new sub-
section:
‘‘(d) DEFINITIONS.—As used in this section, the fol-
lowing terms mean the following:
‘‘(1) A ‘coin-operated phonorecord player’ is a
machine or device that—
‘‘(A) is employed solely for the perform-
ance of nondramatic musical works by means of
phonorecords upon being activated by the inser-
tion of coins, currency, tokens, or other mone-
tary units or their equivalent;
‘‘(B) is located in an establishment making
no direct or indirect charge for admission;
‘‘(C) is accompanied by a list which is
comprised of the titles of all the musical works
available for performance on it, and is affixed
to the phonorecord player or posted in the es-
tablishment in a prominent position where it
can be readily examined by the public; and
‘‘(D) affords a choice of works available
for performance and permits the choice to be
made by the patrons of the establishment in
which it is located.
‘‘(2) An ‘operator’ is any person who, alone or
jointly with others—
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‘‘(A) owns a coin-operated phonorecord
player;
‘‘(B) has the power to make a coin-oper-
ated phonorecord player available for placement
in an establishment for purposes of public per-
formance; or
‘‘(C) has the power to exercise primary
control over the selection of the musical works
made available for public performance on a
coin-operated phonorecord player.’’.
SEC. 7. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER
PROGRAMS.
Section 117 of title 17, United States Code, is
amended as follows:
(1) Strike ‘‘Notwithstanding’’ and insert the follow-
ing:
‘‘(a) MAKING OF ADDITIONAL COPY OR ADAPTATION
BY OWNER OF COPY.—Notwithstanding’’.
(2) Strike ‘‘Any exact’’ and insert the following:
‘‘(b) LEASE, SALE, OR OTHER TRANSFER OF ADDI-
TIONAL COPY OR ADAPTATION.—Any exact’’.
(3) Add at the end the following:
‘‘(c) MACHINE MAINTENANCE OR REPAIR.—Notwith-
standing the provisions of section 106, it is not an in-
fringement for the owner or lessee of a machine to make
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or authorize the making of a copy of a computer program
if such copy is made solely by virtue of the activation of
a machine that lawfully contains an authorized copy of
the computer program, for purposes only of maintenance
or repair of that machine, provided that—
‘‘(1) such new copy is used in no other manner
and is destroyed immediately after the maintenance
or repair is completed, and
‘‘(2) with respect to any computer program or
part thereof that is not necessary for that machine
to be activated, such program or part thereof is not
accessed or used other than to make such new copy
by virtue of the activation of the machine.
‘‘(d) DEFINITIONS.—For purposes of this section—
‘‘(1) the term ‘maintenance’ of a machine
means servicing the machine in order to make it
work in accordance with its original specifications
and any changes to those specifications authorized
for that machine; and
‘‘(2) the term ‘repair’ of a machine means re-
storing it to the state of working in accordance with
its original specifications and any changes to those
specifications authorized for that machine.’’.
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‘‘(1) serves notice upon the infringer, not less
than 48 hours before such fixation, identifying the
work and the specific time and source of its first
transmission, and declaring an intention to secure
copyright in the work; and’’.
SEC. 10. COPYRIGHT OFFICE FEES.
(a) FEE INCREASES.—Section 708(b) of title 17,
United States Code, is amended to read as follows:
‘‘(b) In calendar year 1996 and in any subsequent
calendar year, the Register of Copyrights, by regulation,
may increase the fees specified in subsection (a) in the
following manner:
‘‘(1) The Register shall conduct a study of the
costs incurred by the Copyright Office for the reg-
istration of claims, the recordation of documents,
and the provision of services. The study shall also
consider the timing of any increase in fees and the
authority to use such fees consistent with the budg-
et.
‘‘(2) The Register shall have discretion to in-
crease fees up to the reasonable costs incurred by
the Copyright Office for the services described in
paragraph (1) plus a reasonable inflation adjustment
to account for any estimated increase in costs.
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‘‘(3) Any newly established fee based on para-
graph (2) shall be rounded off to the nearest dollar,
or for a fee less than $12, rounded off to the nearest
50 cents.
‘‘(4) The fees shall be fair and equitable and
give due consideration to the objectives of the copy-
right system.
‘‘(5) If upon completion of the study, the Reg-
ister determines that the fees should be increased,
the Register shall prepare a proposed fee schedule
and submit the schedule with the accompanying eco-
nomic analysis to the Congress. The fees proposed
by the Register may be instituted after the end of
120 days after the schedule is submitted to the Con-
gress unless, within that 120-day period, a law is en-
acted stating in substance that the Congress does
not approve the schedule.’’.
(b) DEPOSIT OF FEES.—Section 708(d) of such title
is amended to read as follows:
‘‘(d)(1) Except as provided in paragraph (2), all fees
received under this section shall be deposited by the Reg-
ister of Copyrights in the Treasury of the United States
and shall be credited to the appropriations for necessary
expenses of the Copyright Office. Such fees that are col-
lected shall remain available until expended. The Register
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may, in accordance with regulations that he or she shall
prescribe, refund any sum paid by mistake or in excess
of the fee required by this section.
‘‘(2) In the case of fees deposited against future serv-
ices, the Register of Copyrights shall request the Secretary
of the Treasury to invest in interest-bearing securities in
the United States Treasury any portion of the fees that,
as determined by the Register, is not required to meet cur-
rent deposit account demands. Funds shall be invested in
securities that permit funds to be available to the Copy-
right Office at all times if they are determined to be nec-
essary to meet current deposit account demands. Such in-
vestments shall be in public debt securities with maturities
suitable to the needs of the fund, as determined by the
Register of Copyrights, and bearing interest at rates de-
termined by the Secretary of the Treasury, taking into
consideration current market yields on outstanding mar-
ketable obligations of the United States of comparable ma-
turities.
‘‘(3) The income on such investments shall be depos-
ited in the Treasury of the United States and shall be
credited to the appropriations for necessary expenses of
the Copyright Office.’’.
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SEC. 11. COPYRIGHT ARBITRATION ROYALTY PANELS.
(a) ESTABLISHMENT AND PURPOSE.—Section 801 of
title 17, United States Code, is amended—
(1) in subsection (b)(1) by striking ‘‘and 116’’
in the first sentence and inserting ‘‘116, and 119’’;
(2) in subsection (c) by inserting after ‘‘panel’’
at the end of the sentence the following:
‘‘, including—
‘‘(1) authorizing the distribution of those roy-
alty fees collected under sections 111, 119, and
1005 that the Librarian has found are not subject
to controversy; and
‘‘(2) accepting or rejecting royalty claims filed
under sections 111, 119, and 1007 on the basis of
timeliness or the failure to establish the basis for a
claim’’; and
(3) by amending subsection (d) to read as fol-
lows:
‘‘(d) SUPPORT AND REIMBURSEMENT OF ARBITRA-
TION PANELS.—The Librarian of Congress, upon the rec-
ommendation of the Register of Copyrights, shall provide
the copyright arbitration royalty panels with the necessary
administrative services related to proceedings under this
chapter, and shall reimburse the arbitrators at such inter-
vals and in such manner as the Librarian shall provide
by regulation. Each such arbitrator is an independent con-
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tractor acting on behalf of the United States, and shall
be paid pursuant to a signed agreement between the Li-
brary of Congress and the arbitrator. Payments to the ar-
bitrators shall be considered costs incurred by the Library
of Congress and the Copyright Office for purposes of sec-
tion 802(h)(1).’’.
(b) PROCEEDINGS.—Section 802(h)(1) of title 17,
United States Code, is amended—
(1) by amending the heading to read ‘‘DEDUC-
TION
OF
COSTS
OF
LIBRARY
OF
CONGRESS
AND
COPYRIGHT OFFICE FROM ROYALTY FEES.—’’;
(2) in the first sentence by inserting ‘‘to sup-
port distribution proceedings’’ after ‘‘Copyright Of-
fice’’; and
(3) by amending the third sentence to read as
follows: ‘‘In ratemaking proceedings, the Librarian
of Congress and the Copyright Office may assess
their reasonable costs directly to the parties to the
most recent relevant arbitration proceeding, 50 per-
cent of the costs to the parties who would receive
royalties from the royalty rate adopted in the pro-
ceeding and 50 percent of the costs to the parties
who would pay the royalty rate so adopted, subject
to the discretion of the arbitrators to assess costs
under subsection (c).’’.
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SEC. 12. DIGITAL AUDIO RECORDING DEVICES AND MEDIA.
Section 1007(b) of title 17, United States Code, is
amended by striking ‘‘Within 30 days after’’ in the first
sentence and inserting ‘‘After’’.
SEC. 13. TREATMENT OF PRE-1978 PUBLICATION OF SOUND
RECORDINGS.
Section 303 of title 17, United States Code, is
amended—
(1) by striking ‘‘Copyright’’ and inserting ‘‘(a)
Copyright’’; and
(2) by adding at the end the following:
‘‘(b) The distribution before January 1, 1978, of a
phonorecord shall not for any purpose constitute a publi-
cation of the musical work embodied therein.’’.
SEC. 14. CONFORMING AMENDMENT.
Paragraph (5) of section 4 of the Digital Perform-
ance Right in Sound Recordings Act of 1995 is redesig-
nated as paragraph (4).
SEC. 15. EFFECTIVE DATES.
(a) IN GENERAL.—Except as provided in subsection
(b), the amendments made by this Act shall take effect
on the date of the enactment of this Act.
(b) SATELLITE HOME VIEWER ACT.—The amend-
ments made by section 1 shall be effective as if enacted
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as part of the Satellite Home Viewer Act of 1994 (Public
Law 103–369).
Passed the House of Representatives June 4, 1996.
Attest:
ROBIN H. CARLE,
Clerk.