 |
(b) Infringer's Profits. As an alternative to the remedies provided in subsection (a), the court may award the claimant the infringer's profits resulting from the sale of the copies if the court finds that the infringer's sales are reasonably related to the use of the claimant's design. In such a case, the claimant shall be required to prove only the amount of the infringer's sales and the infringer shall be required to prove its expenses against such sales.
(c) Statute of Limitations. No recovery under subsection (a) or (b) shall be had for any infringement committed more than 3 years before the date on which the complaint is filed.
(d) Attorney's Fees. In an action for infringement under this chapter, the court may award reasonable attorney's fees to the prevailing party.
(e) Disposition of Infringing and Other Articles. The court may order that all infringing articles, and any plates, molds, patterns, models, or other means specifically adapted for making the articles, be delivered up for destruction or other disposition as the court may direct.
Section 1324. Power of court over registration
In any action involving the protection of a design under this chapter, the court, when appropriate, may order registration of a design under this chapter or the cancellation of such a registration. Any such order shall be certified by the court to the Administrator, who shall make an appropriate entry upon the record.
Section 1325. Liability for action on registration fraudulently obtained
Any person who brings an action for infringement knowing that registration of the design was obtained by a false or fraudulent representation materially affecting the rights under this chapter, shall be liable in the sum of $10,000, or such part of that amount as the court may determine. That amount shall be to compensate the defendant and shall be charged against the plaintiff and paid to the defendant, in addition to such costs and attorney's fees of the defendant as may be assessed by the court.
Section 1326. Penalty for false marking
(a) In General. Whoever, for the purpose of deceiving the public, marks upon, applies to, or uses in advertising in connection with an article made, used, distributed, or sold, a design which is not protected under this chapter, a design notice specified in section 1306, or any other words or symbols importing that the design is protected under this chapter, knowing that the design is not so protected, shall pay a civil fine of not more than $500 for each such offense.
(b) Suit by Private Persons. Any person may sue for the penalty established by subsection (a), in which event one-half of the penalty shall be awarded to the person suing and the remainder shall be awarded to the United States.
Section 1327. Penalty for false representation
Whoever knowingly makes a false representation materially affecting the rights obtainable under this chapter for the purpose of obtaining registration of a design under this chapter shall pay a penalty of not less than $500 and not more than $1,000, and any rights or privileges that individual may have in the design under this chapter shall be forfeited.
Section 1328. Enforcement by Treasury and Postal Service
(a) Regulations. The Secretary of the Treasury and the United States Postal Service shall separately or jointly issue regulations for the enforcement of the rights set forth in section 1308 with respect to importation. Such regulations may require, as a condition for the exclusion of articles from the United States, that the person seeking exclusion take any one or more of the following actions:
(1) Obtain a court order enjoining, or an order of the International Trade Commission under section 337 of the Tariff Act of 1930 excluding, importation of the articles.
(2) Furnish proof that the design involved is protected under this chapter and that the importation of the articles would infringe the rights in the design under this chapter.
(3) Post a surety bond for any injury that may result if the detention or exclusion of the articles proves to be unjustified.
(b) Seizure and Forfeiture. Articles imported in violation of the rights set forth in section 1308 are subject to seizure and forfeiture in the same manner as property imported in violation of the customs laws. Any such forfeited articles shall be destroyed as directed by the Secretary of the Treasury or the court, as the case may be, except that the articles may be returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury that the importer had no reasonable grounds for believing that his or her acts constituted a violation of the law.
Section 1329. Relation to design patent law
The issuance of a design patent under title 35, United States Code, for an original design for an article of manufacture shall terminate any protection of the original design under this chapter.
Section 1330. Common law and other rights unaffected
Nothing in this chapter shall annul or limit-
(1) common law or other rights or remedies, if any, available to or held by any person with respect to a design which has not been registered under this chapter; or
(2) any right under the trademark laws or any right protected against unfair competition.
Section 1331. Administrator; Office of the Administrator
In this chapter, the "Administrator" is the Register of Copyrights, and the "Office of the Administrator" and the "Office" refer to the Copyright Office of the Library of Congress.
Section 1332. No retroactive effect
Protection under this chapter shall not be available for any design that has been made public under section 1310(b) before the effective date of this chapter.
—————————- Chapter 13 Endnotes
1 In 1998, the Vessel Hull Design Protection Act added chapter 13, entitled "Protection of Original Designs," to title 17. Pub. L. No. 105-304, 112 Stat. 2860, 2905. The Vessel Hull Design Protection Act is title V of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860.
2 The Satellite Home Viewer Improvement Act of 1999 amended section 1301(b)(3) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-593.
3 In 1999, section 1302(5) was amended to substitute "2 years" in lieu of "1 year." Pub. L. No. 106-44, 113 Stat. 221, 222.
4 The Satellite Home Viewer Improvement Act of 1999 amended section 1313(c) by adding at the end thereof the last sentence, which begins "Costs of the cancellation procedure." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-594.
5 In 1999, section 1320 was amended to change the spelling in the heading of subsection (c) from "acknowledgement" to "acknowledgment." Pub. L. No. 106-44, 113 Stat. 221, 222.
————————————————————————————————————
Appendix I. Transitional and Supplementary Provisions of the Copyright Act of 1976 [1]
Sec. 102. This Act becomes effective on January 1, 1978, except as otherwise expressly provided by this Act, including provisions of the first section of this Act. The provisions of sections 118, 304(b), and chapter 8 of title 17, as amended by the first section of this Act, take effect upon enactment of this Act.
Sec. 103. This Act does not provide copyright protection for any work that goes into the public domain before January 1, 1978. The exclusive rights, as provided by section 106 of title 17 as amended by the first section of this Act, to reproduce a work in phonorecords and to distribute phonorecords of the work, do not extend to any nondramatic musical work copyrighted before July 1, 1909.
Sec. 104. All proclamations issued by the President under section 1(e) or 9(b) of title 17 as it existed on December 31, 1977, or under previous copyright statutes of the United States, shall continue in force until terminated, suspended, or revised by the President.
Sec. 105. (a)(1) Section 505 of title 44 is amended to read as follows:
"Sec. 505. Sale of duplicate plates
"The Public Printer shall sell, under regulations of the Joint Committee on Printing to persons who may apply, additional or duplicate stereotype or electrotype plates from which a Government publication is printed, at a price not to exceed the cost of composition, the metal, and making to the Government, plus 10 per centum, and the full amount of the price shall be paid when the order is filed."
(2) The item relating to section 505 in the sectional analysis at the beginning of chapter 5 of title 44, is amended to read as follows:
"505. Sale of duplicate plates.".
(b) Section 2113 of title 44 is amended to read as follows:
[To assist the reader, section 2113 of title 44, now designated section 2117, appears in part VII of the Appendix, *infra*, as currently amended.]
(c) In section 1498(b) of title 28, the phrase "section 101(b) of title 17" is amended to read "section 504(c) of title 17".
(d) Section 543(a)(4) of the Internal Revenue Code of 1954, as amended, is amended by striking out "(other than by reason of section 2 or 6 thereof)".
(e) Section 3202(a) of title 39 is amended by striking out clause (5). Section 3206 of title 39 is amended by deleting the words "subsections (b) and (c)" and inserting "subsection (b)" in subsection (a), and by deleting subsection (c). Section 3206(d) is renumbered (c).
(f) Subsection (a) of section 290(e) of title 15 is amended by deleting the phrase "section 8" and inserting in lieu thereof the phrase "section 105". [2]
(g) Section 131 of title 2 is amended by deleting the phrase "deposit to secure copyright," and inserting in lieu thereof the phrase "acquisition of material under the copyright law,".
Sec. 106. In any case where, before January 1, 1978, a person has lawfully made parts of instruments serving to reproduce mechanically a copyrighted work under the compulsory license provisions of section 1(e) of title 17 as it existed on December 31, 1977, such person may continue to make and distribute such parts embodying the same mechanical reproduction without obtaining a new compulsory license under the terms of section 115 of title 17 as amended by the first section of this Act. However, such parts made on or after January 1, 1978, constitute phonorecords and are otherwise subject to the provisions of said section 115.
Sec. 107. In the case of any work in which an ad interim copyright is subsisting or is capable of being secured on December 31, 1977, under section 22 of title 17 as it existed on that date, copyright protection is hereby extended to endure for the term or terms provided by section 304 of title 17 as amended by the first section of this Act.
Sec. 108. The notice provisions of sections 401 through 403 of title 17 as amended by the first section of this Act apply to all copies or phonorecords publicly distributed on or after January 1, 1978. However, in the case of a work published before January 1, 1978, compliance with the notice provisions of title 17 either as it existed on December 31, 1977, or as amended by the first section of this Act, is adequate with respect to copies publicly distributed after December 31, 1977.
Sec. 109. The registration of claims to copyright for which the required deposit, application, and fee were received in the Copyright Office before January 1, 1978, and the recordation of assignments of copyright or other instruments received in the Copyright Office before January 1, 1978, shall be made in accordance with title 17 as it existed on December 31, 1977.
Sec. 110. The demand and penalty provisions of section 14 of title 17 as it existed on December 31, 1977, apply to any work in which copyright has been secured by publication with notice of copyright on or before that date, but any deposit and registration made after that date in response to a demand under that section shall be made in accordance with the provisions of title 17 as amended by the first section of this Act.
Sec. 111. Section 2318 of title 18 of the United States Code is amended to read as follows:
[To assist the reader, section 2318 of title 18, as currently amended, along with related criminal provisions, appears in part VII of the Appendix, *infra*.]
Sec. 112. All causes of action that arose under title 17 before January 1, 1978, shall be governed by title 17 as it existed when the cause of action arose.
Sec. 113. (a) The Librarian of Congress (hereinafter referred to as the "Librarian") shall establish and maintain in the Library of Congress a library to be known as the American Television and Radio Archives (hereinafter referred to as the "Archives"). The purpose of the Archives shall be to preserve a permanent record of the television and radio programs which are the heritage of the people of the United States and to provide access to such programs to historians and scholars without encouraging or causing copyright infringement.
(1) The Librarian, after consultation with interested organizations and individuals, shall determine and place in the Archives such copies and phonorecords of television and radio programs transmitted to the public in the United States and in other countries which are of present or potential public or cultural interest, historical significance, cognitive value, or otherwise worthy of preservation, including copies and phonorecords of published and unpublished transmission programs-
(A) acquired in accordance with sections 407 and 408 of title 17 as amended by the first section of this Act; and
(B) transferred from the existing collections of the Library of Congress; and
(C) given to or exchanged with the Archives by other libraries, archives, organizations, and individuals; and
(D) purchased from the owner thereof.
(2) The Librarian shall maintain and publish appropriate catalogs and indexes of the collections of the Archives, and shall make such collections available for study and research under the conditions prescribed under this section.
(b) Notwithstanding the provisions of section 106 of title 17 as amended by the first section of this Act, the Librarian is authorized with respect to a transmission program which consists of a regularly scheduled newscast or on-the-spot coverage of news events and, under standards and conditions that the Librarian shall prescribe by regulation-
(1) to reproduce a fixation of such a program, in the same or another tangible form, for the purposes of preservation or security or for distribution under the conditions of clause (3) of this subsection; and
(2) to compile, without abridgment or any other editing, portions of such fixations according to subject matter, and to reproduce such compilations for the purpose of clause (1) of this subsection; and
(3) to distribute a reproduction made under clause (1) or (2) of this subsection-
(A) by loan to a person engaged in research; and
(B) for deposit in a library or archives which meets the requirements of section 108(a) of title 17 as amended by the first section of this Act,
in either case for use only in research and not for further reproduction or performance.
(c) The Librarian or any employee of the Library who is acting under the authority of this section shall not be liable in any action for copyright infringement committed by any other person unless the Librarian or such employee knowingly participated in the act of infringement committed by such person. Nothing in this section shall be construed to excuse or limit liability under title 17 as amended by the first section of this Act for any act not authorized by that title or this section, or for any act performed by a person not authorized to act under that title or this section.
(d) This section may be cited as the "American Television and Radio Archives Act".
Sec. 114. There are hereby authorized to be appropriated such funds as may be necessary to carry out the purposes of this Act.
Sec. 115. If any provision of title 17, as amended by the first section of this Act, is declared unconstitutional, the validity of the remainder of this title is not affected.
—————————- Appendix I Endnotes
1 Part I of the Appendix contains the Transitional and Supplementary Provisions of the Copyright Act of 1976, Pub. L. No. 94-533, 90 Stat. 2541, that do not amend title 17 of the *United States Code.*
2 The correct reference is to "290e," not "290(e)."
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Appendix II. Berne Convention Implementation Act of 1988 [1]
Sec. 2. Declarations.
The Congress makes the following declarations:
(1) The Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto (hereafter in this Act referred to as the "Berne Convention") are not self-executing under the Constitution and laws of the United States.
(2) The obligations of the United States under the Berne Convention may be performed only pursuant to appropriate domestic law.
(3) The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention and no further rights or interests shall be recognized or created for that purpose.
Sec. 3. Construction of the Berne Convention.
(a) Relationship With Domestic Law. The provisions of the Berne Convention-
(1) shall be given effect under title 17, as amended by this Act, and any other relevant provision of Federal or State law, including the common law; and
(2) shall not be enforceable in any action brought pursuant to the provisions of the Berne Convention itself.
(b) Certain Rights Not Affected. The provisions of the Berne Convention, the adherence of the United States thereto, and satisfaction of United States obligations thereunder, do not expand or reduce any right of an author of a work, whether claimed under Federal, State, or the common law-
(1) to claim authorship of the work; or
(2) to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the work, that would prejudice the author's honor or reputation.
Sec. 12. Works in the public domain.
Title 17, United States Code, as amended by this Act, does not provide copyright protection for any work that is in the public domain in the United States.
Sec. 13. Effective date: effect on pending cases.
(a) Effective Date. This Act and the amendments made by this Act take effect on the date on which the Berne Convention (as defined in section 101 of title 17, United States Code) enters into force with respect to the United States. [2]
(b) Effect on Pending Cases. Any cause of action arising under title 17, United States Code, before the effective date of this Act shall be governed by the provisions of such title as in effect when the cause of action arose.
—————————— Appendix II Endnotes
1 Part II of the Appendix consists of provisions of the Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, that do not amend title 17 of the *United States Code.*
2 The Berne Convention entered into force in the United States on March 1, 1989.
————————————————————————————————————
Appendix III. Uruguay Round Agreements Act [1]
Sec. 2. Definitions.
For purposes of this Act:
(1) GATT 1947; GATT 1994.
(A) GATT 1947. The term "GATT 1947" means the General Agreement on Tariffs and Trade, dated October 30, 1947, annexed to the Final Act Adopted at the Conclusion of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, as subsequently rectified, amended, or modified by the terms of legal instruments which have entered into force before the date of entry into force of the WTO Agreement.
(B) GATT 1994. The term "GATT 1994" means the General Agreement on Tariffs and Trade annexed to the WTO Agreement.
(2) HTS. The term "HTS" means the Harmonized Tariff Schedule of the United States.
(3)International trade commission. The term "International Trade Commission" means the United States International Trade Commission.
(4) Multilateral trade agreement. The term "multilateral trade agreement" means an agreement described in section 101(d) of this Act (other than an agreement described in paragraph (17) or (18) of such section).
(5) Schedule XX. The term "Schedule XX" means Schedule XX - United States of America annexed to the Marrakesh Protocol to the GATT 1994.
(6) Trade representative. The term "Trade Representative" means the United States Trade Representative.
(7) Uruguay round agreements. The term "Uruguay Round Agreements" means the agreements approved by the Congress under section 101(a)(1).
(8) World trade organization and WTO. The terms "World Trade Organization" and "WTO" mean the organization established pursuant to the WTO Agreement.
(9) WTO agreement. The term "WTO Agreement" means the Agreement Establishing the World Trade Organization entered into on April 15, 1994.
(10) WTO member and WTO member country. The terms "WTO member" and "WTO member country" mean a state, or separate customs territory (within the meaning of Article XII of the WTO Agreement), with respect to which the United States applies the WTO Agreement.
Sec. 101. Approval and entry into force of the Uruguay Round Agreements.
(a) Approval of Agreements and Statement of Administrative Action. Pursuant to section 1103 of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 2903) and section 151 of the Trade Act of 1974 (19 U.S.C. 2191), the Congress approves-
(1) the trade agreements described in subsection (d) resulting from the Uruguay Round of multilateral trade negotiations under the auspices of the General Agreement on Tariffs and Trade, entered into on April 15, 1994, and submitted to the Congress on September 27, 1994; and
(2) the statement of administrative action proposed to implement the agreements that was submitted to the Congress on September 27, 1994.
(b) Entry Into Force. At such time as the President determines that a sufficient number of foreign countries are accepting the obligations of the Uruguay Round Agreements, in accordance with article XIV of the WTO Agreement, to ensure the effective operation of, and adequate benefits for the United States under, those Agreements, the President may accept the Uruguay Round Agreements and implement article VIII of the WTO Agreement.
(c) Authorization of Appropriations. There are authorized to be appropriated annually such sums as may be necessary for the payment by the United States of its share of the expenses of the WTO.
(d) Trade Agreements to Which This Act Applies. Subsection (a) applies to the WTO Agreement and to the following agreements annexed to that Agreement:
(1) The General Agreement on Tariffs and Trade 1994.
(2) The Agreement on Agriculture.
(3) The Agreement on the Application of Sanitary and Phytosanitary Measures.
(4) The Agreement on Textiles and Clothing.
(5) The Agreement on Technical Barriers to Trade.
(6) The Agreement on Trade-Related Investment Measures.
(7) The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994.
(8) The Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994.
(9) The Agreement on Preshipment Inspection.
(10) The Agreement on Rules of Origin.
(11) The Agreement on Import Licensing Procedures.
(12) The Agreement on Subsidies and Countervailing Measures.
(13) The Agreement on Safeguards.
(14) The General Agreement on Trade in Services.
(15) The Agreement on Trade-Related Aspects of Intellectual Property Rights.
(16) The Understanding on Rules and Procedures Governing the Settlement of Disputes.
(17) The Agreement on Government Procurement.
(18) The International Bovine Meat Agreement.
Sec. 102. Relationship of the agreements to United States law and state law.
(a) Relationship of Agreements to United States Law.
(1) United states law to prevail in conflict. No provision of any of the Uruguay Round Agreements, nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States shall have effect.
(2) Construction. Nothing in this Act shall be construed
(A) to amend or modify any law of the United States, including any law relating to-
(i) the protection of human, animal, or plant life or health,
(ii) the protection of the environment, or
(iii) worker safety, or
(B) to limit any authority conferred under any law of the United States, including section 301 of the Trade Act of 1974,
unless specifically provided for in this Act.
(b) Relationship of Agreements to State Law.-
(1) Federal-State Consultation.
(A) In General. Upon the enactment of this Act, the President shall, through the intergovernmental policy advisory committees on trade established under section 306(c)(2)(A) of the Trade and Tariff Act of 1984 (19 U.S.C. 2114c(2)(A)), consult with the States for the purpose of achieving conformity of State laws and practices with the Uruguay Round Agreements.
(B) Federal-State Consultation Process. The Trade Representative shall establish within the Office of the United States Trade Representative a Federal-State consultation process for addressing issues relating to the Uruguay Round Agreements that directly relate to, or will potentially have a direct effect on, the States. The Federal-State consultation process shall include procedures under which-
(i) the States will be informed on a continuing basis of matters under the Uruguay Round Agreements that directly relate to, or will potentially have a direct impact on, the States;
(ii) the States will be provided an opportunity to submit, on a continuing basis, to the Trade Representative information and advice with respect to matters referred to in clause (i); and
(iii) the Trade Representative will take into account the information and advice received from the States under clause (ii) when formulating United States positions regarding matters referred to in clause (i).
The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Federal-State consultation process established by this paragraph.
(C) Federal-State Cooperation in WTO Dispute Settlement.
(i) When a WTO member requests consultations with the United States under Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes referred to in section 101(d)(16) (hereafter in this subsection referred to as the "Dispute Settlement Understanding") concerning whether the law of a State is inconsistent with the obligations undertaken by the United States in any of the Uruguay Round Agreements, the Trade Representative shall notify the Governor of the State or the Governor's designee, and the chief legal officer of the jurisdiction whose law is the subject of the consultations, as soon as possible after the request is received, but in no event later than 7 days thereafter.
(ii) Not later than 30 days after receiving such a request for consultations, the Trade Representative shall consult with representatives of the State concerned regarding the matter. If the consultations involve the laws of a large number of States, the Trade Representative may consult with an appropriate group of representatives of the States concerned, as determined by those States.
(iii) The Trade Representative shall make every effort to ensure that the State concerned is involved in the development of the position of the United States at each stage of the consultations and each subsequent stage of dispute settlement proceedings regarding the matter. In particular, the Trade Representative shall-
(I) notify the State concerned not later than 7 days after a WTO member requests the establishment of a dispute settlement panel or gives notice of the WTO member's decision to appeal a report by a dispute settlement panel regarding the matter; and
(II) provide the State concerned with the opportunity to advise and assist the Trade Representative in the preparation of factual information and argumentation for any written or oral presentations by the United States in consultations or in proceedings of a panel or the Appellate Body regarding the matter.
(iv) If a dispute settlement panel or the Appellate Body finds that the law of a State is inconsistent with any of the Uruguay Round Agreements, the Trade Representative shall consult with the State concerned in an effort to develop a mutually agreeable response to the report of the panel or the Appellate Body and shall make every effort to ensure that the State concerned is involved in the development of the United States position regarding the response.
(D) Notice to States Regarding Consultations on Foreign Subcentral Government Laws.
(i) Subject to clause (ii), the Trade Representative shall, at least 30 days before making a request for consultations under Article 4 of the Dispute Settlement Understanding regarding a subcentral government measure of another WTO member, notify, and solicit the views of, appropriate representatives of each State regarding the matter.
(ii) In exigent circumstances clause (i) shall not apply, in which case the Trade Representative shall notify the appropriate representatives of each State not later than 3 days after making the request for consultations referred to in clause (i).
(2) Legal Challenge.
(A) In General. No State law, or the application of such a State law, may be declared invalid as to any person or circumstance on the ground that the provision or application is inconsistent with any of the Uruguay Round Agreements, except in an action brought by the United States for the purpose of declaring such law or application invalid.
(B) Procedures Governing Action. In any action described in subparagraph (A) that is brought by the United States against a State or any subdivision thereof
(i) a report of a dispute settlement panel or the Appellate Body convened under the Dispute Settlement Understanding regarding the State law, or the law of any political subdivision thereof, shall not be considered as binding or otherwise accorded deference;
(ii) the United States shall have the burden of proving that the law that is the subject of the action, or the application of that law, is inconsistent with the agreement in question;
(iii) any State whose interests may be impaired or impeded in the action shall have the unconditional right to intervene in the action as a party, and the United States shall be entitled to amend its complaint to include a claim or cross-claim concerning the law of a State that so intervenes; and
(iv) any State law that is declared invalid shall not be deemed to have been invalid in its application during any period before the court's judgment becomes final and all timely appeals, including discretionary review, of such judgment are exhausted.
(C) Reports to Congressional Committees. At least 30 days before the United States brings an action described in subparagraph (A), the Trade Representative shall provide a report to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate-
(i) describing the proposed action;
(ii) describing efforts by the Trade Representative to resolve the matter with the State concerned by other means; and
(iii) if the State law was the subject of consultations under the Dispute Settlement Understanding, certifying that the Trade Representative has substantially complied with the requirements of paragraph (1)(C) in connection with the matter.
Following the submission of the report, and before the action is brought, the Trade Representative shall consult with the committees referred to in the preceding sentence concerning the matter.
(3) Definition of State Law. For purposes of this subsection-
(A) the term "State law" includes-
(i) any law of a political subdivision of a State; and
(ii) any State law regulating or taxing the business of insurance; and
(B) the terms "dispute settlement panel" and "Appellate Body" have the meanings given those terms in section 121.
(c) Effect of Agreement With Respect to Private Remedies.
(1) Limitations. No person other than the United States-
(A) shall have any cause of action or defense under any of the Uruguay Round Agreements or by virtue of congressional approval of such an agreement, or
(B) may challenge, in any action brought under any provision of law, any action or inaction by any department, agency, or other instrumentality of the United States, any State, or any political subdivision of a State on the ground that such action or inaction is inconsistent with such agreement.
(2) Intent of congress. It is the intention of the Congress through paragraph (1) to occupy the field with respect to any cause of action or defense under or in connection with any of the Uruguay Round Agreements, including by precluding any person other than the United States from bringing any action against any State or political subdivision thereof or raising any defense to the application of State law under or in connection with any of the Uruguay Round Agreements-
(A) on the basis of a judgment obtained by the United States in an action brought under any such agreement; or
(B) on any other basis.
(d) Statement of Administrative Action. The statement of administrative action approved by the Congress under section 101(a) shall be regarded as an authoritative expression by the United States concerning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in which a question arises concerning such interpretation or application.
Sec. 103. Implementing actions in anticipation of entry into force; regulations.
(a) Implementing Actions. After the date of the enactment of this Act-
(1) the President may proclaim such actions, and
(2) other appropriate officers of the United States Government may issue such regulations,
as may be necessary to ensure that any provision of this Act, or amendment made by this Act, that takes effect on the date any of the Uruguay Round Agreements enters into force with respect to the United States is appropriately implemented on such date. Such proclamation or regulation may not have an effective date earlier than the date of entry into force with respect to the United States of the agreement to which the proclamation or regulation relates.
(b) Regulations. Any interim regulation necessary or appropriate to carry out any action proposed in the statement of administrative action approved under section 101(a) to implement an agreement described in section 101(d) (7), (12), or (13) shall be issued not later than 1 year after the date on which the agreement enters into force with respect to the United States.
—————————— Appendix III Endnote
1 Part III of the Appendix consists of provisions of the Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, that do not amend title 17 of the *United States Code.*
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Appendix IV. GATT/Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement, Part II: [1]
Section 6: Layout-Designs (Topographies) of Integrated Circuits
Article 35
Relation to IPIC Treaty
Members agree to provide protection to the layout-designs (topographies) of integrated circuits (hereinafter referred to as "layout-designs") in accordance with Articles 2-7 (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions.
Article 36
Scope of the Protection [2]
Subject to the provisions of paragraph 1 of Article 37 below, Members shall consider unlawful the following acts if performed without the authorization of the right holder: importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected layout-design is incorporated, or an article incorporating such an integrated circuit only insofar as it continues to contain an unlawfully reproduced layout-design.
Article 37
Acts not Requiring the Authorization of the Right Holder
1. Notwithstanding Article 36 above, no Member shall consider unlawful the performance of any of the acts referred to in that Article in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or any article incorporating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the integrated circuit or article incorporating such an integrated circuit, that it incorporated an unlawfully reproduced layout-design. Members shall provide that, after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, he may perform any of the acts with respect to the stock on hand or ordered before such time, but shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated license in respect of such a layout-design.
2. The conditions set out in sub-paragraphs (a)-(k) of Article 31 above shall apply *mutatis mutandis* in the event of any non-voluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder.
Article 38
Term of Protection
1. In Members requiring registration as a condition of protection, the term of protection of layout-designs shall not end before the expiration of a period of ten years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs.
2. In Members not requiring registration as a condition for protection, layout-designs shall be protected for a term of no less than ten years from the date of the first commercial exploitation wherever in the world it occurs.
3. Notwithstanding paragraphs 1 and 2 above, a Member may provide that protection shall lapse fifteen years after the creation of the layout- design.
—————————— Appendix IV Endnotes
1 For an explanation of the relationship of this section of TRIPs to title 17 of the *United States Code*, see the second paragraph of endnote 8, chapter 9, *supra.*
2 The term "right holder" in this section shall be understood as having the same meaning as the term "holder of the right" in the Treaty on Intellectual Property in Respect of Integrated Circuits, done at Washington, D.C., on May 26, 1989.
————————————————————————————————————
Appendix V. Additional Provisions of the Digital Millennium Copyright Act [1]
Section 1. Short Title.
This Act may be cited as the "Digital Millennium Copyright Act".
Title I-WIPO Treaties Implementation
SEC. 101. SHORT TITLE.
This title may be cited as the "WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998".
* * * * * * *
SEC. 104. EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON ELECTRONIC COMMERCE AND TECHNOLOGICAL DEVELOPMENT.
(a) Evaluation by the Register of Copyrights and the Assistant Secretary for Communications and Information. The Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce shall jointly evaluate-
(1) the effects of the amendments made by this title and the development of electronic commerce and associated technology on the operation of sections 109 and 117 of title 17, United States Code; and
(2) the relationship between existing and emergent technology and the operation of sections 109 and 117 of title 17, United States Code.
(b) Report to Congress. The Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce shall, not later than 24 months after the date of the enactment of this Act, submit to the Congress a joint report on the evaluation conducted under subsection (a), including any legislative recommendations the Register and the Assistant Secretary may have.
SEC. 105. EFFECTIVE DATE.
(a) In General. Except as otherwise provided in this title, this title and the amendments made by this title shall take effect on the date of the enactment of this Act.
(b) Amendments Relating to Certain International Agreements. (1) The following shall take effect upon the entry into force of the WIPO Copyright Treaty with respect to the United States:
(A) Paragraph (5) of the definition of "international agreement" contained in section 101 of title 17, United States Code, as amended by section 102(a)(4) of this Act.
(B) The amendment made by section 102(a)(6) of this Act.
(C) Subparagraph (C) of section 104A(h)(1) of title 17, United States Code, as amended by section 102(c)(1) of this Act.
(D) Subparagraph (C) of section 104A(h)(3) of title 17, United States Code, as amended by section 102(c)(2) of this Act.
(2) The following shall take effect upon the entry into force of the WIPO Performances and Phonograms Treaty with respect to the United States:
(A) Paragraph (6) of the definition of "international agreement" contained in section 101 of title 17, United States Code, as amended by section 102(a)(4) of this Act.
(B) The amendment made by section 102(a)(7) of this Act.
(C) The amendment made by section 102(b)(2) of this Act.
(D) Subparagraph (D) of section 104A(h)(1) of title 17, United States Code, as amended by section 102(c)(1) of this Act.
(E) Subparagraph (D) of section 104A(h)(3) of title 17, United States Code, as amended by section 102(c)(2) of this Act.
(F) The amendments made by section 102(c)(3) of this Act.
* * * * * * *
Title II - Online Copyright Infringement Liability Limitation
SEC. 201. SHORT TITLE.
This title may be cited as the "Online Copyright Infringement Liability Limitation Act".
* * * * * * *
SEC. 203. EFFECTIVE DATE.
This title and the amendments made by this title shall take effect on the date of the enactment of this Act.
* * * * * * *
Title IV - Miscellaneous Provisions
SEC. 401. PROVISIONS RELATING TO THE COMMISSIONER OF PATENTS AND TRADEMARKS AND THE REGISTER OF COPYRIGHTS-
(a) Compensation. (1) Section 3(d) of title 35, United States Code, is amended by striking "prescribed by law for Assistant Secretaries of Commerce" and inserting "in effect for level III of the Executive Schedule under section 5314 of title 5, United States Code".
* * * * * * *
(3) Section 5314 of title 5, United States Code, is amended by adding at the end the following:
"Assistant Secretary of Commerce and Commissioner of Patents and Trademarks.
"Register of Copyrights.".
* * * * * * *
SEC. 403. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION.
(a) Recommendations by Register of Copyrights. Not later than 6 months after the date of the enactment of this Act, the Register of Copyrights, after consultation with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives, shall submit to the Congress recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users of copyrighted works. Such recommendations shall include any legislation the Register of Copyrights considers appropriate to achieve the objective described in the preceding sentence.
(b) Factors. In formulating recommendations under subsection (a), the Register of Copyrights shall consider-
(1) the need for an exemption from exclusive rights of copyright owners for distance education through digital networks;
(2) the categories of works to be included under any distance education exemption;
(3) the extent of appropriate quantitative limitations on the portions of works that may be used under any distance education exemption;
(4) the parties who should be entitled to the benefits of any distance education exemption;
(5) the parties who should be designated as eligible recipients of distance education materials under any distance education exemption;
(6) whether and what types of technological measures can or should be employed to safeguard against unauthorized access to, and use or retention of, copyrighted materials as a condition of eligibility for any distance education exemption, including, in light of developing technological capabilities, the exemption set out in section 110(2) of title 17, United States Code;
(7) the extent to which the availability of licenses for the use of copyrighted works in distance education through interactive digital networks should be considered in assessing eligibility for any distance education exemption; and
(8) such other issues relating to distance education through interactive digital networks that the Register considers appropriate.
* * * * * * *
SEC. 405. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS;
EPHEMERAL RECORDINGS.
(a) Scope of Exclusive Rights in Sound Recordings.
* * * * * * *
(5) The amendment made by paragraph (2)(B)(i)(III) of this subsection shall be deemed to have been enacted as part of the Digital Performance Right in Sound Recordings Act of 1995, and the publication of notice of proceedings under section 114(f)(1) of title 17, United States Code, as in effect upon the effective date of that Act, for the determination of royalty payments shall be deemed to have been made for the period beginning on the effective date of that Act and ending on December 1, 2001.
(6) The amendments made by this subsection do not annul, limit, or otherwise impair the rights that are preserved by section 114 of title 17, United States Code, including the rights preserved by subsections (c), (d)(4), and (i) of such section.
* * * * * * *
(c) Scope of Section 112(a) of Title 17 Not Affected.
Nothing in this section or the amendments made by this section shall affect the scope of section 112(a) of title 17, United States Code, or the entitlement of any person to an exemption thereunder.
* * * * * * *
SEC. 406. ASSUMPTION OF CONTRACTUAL OBLIGATIONS RELATED TO-
TRANSFERS OF RIGHTS IN MOTION PICTURES.
(a) In General. Part VI of title 28, United States Code, is amended by adding at the end the following new chapter:
"CHAPTER 180-ASSUMPTION OF CERTAIN CONTRACTUAL OBLIGATIONS
"Sec. 4001. Assumption of contractual obligations related to transfers of rights in motion pictures.
"Sec. 4001. Assumption of contractual obligations related to transfers of rights in motion pictures
"(a) Assumption of Obligations. (1) In the case of a transfer of copyright ownership under United States law in a motion picture (as the terms 'transfer of copyright ownership' and 'motion picture' are defined in section 101 of title 17) that is produced subject to 1 or more collective bargaining agreements negotiated under the laws of the United States, if the transfer is executed on or after the effective date of this chapter and is not limited to public performance rights, the transfer instrument shall be deemed to incorporate the assumption agreements applicable to the copyright ownership being transferred that are required by the applicable collective bargaining agreement, and the transferee shall be subject to the obligations under each such assumption agreement to make residual payments and provide related notices, accruing after the effective date of the transfer and applicable to the exploitation of the rights transferred, and any remedies under each such assumption agreement for breach of those obligations, as those obligations and remedies are set forth in the applicable collective bargaining agreement, if-
"(A) the transferee knows or has reason to know at the time of the transfer that such collective bargaining agreement was or will be applicable to the motion picture; or
"(B) in the event of a court order confirming an arbitration award against the transferor under the collective bargaining agreement, the transferor does not have the financial ability to satisfy the award within 90 days after the order is issued.
"(2) For purposes of paragraph (1)(A), 'knows or has reason to know' means any of the following:
"(A) Actual knowledge that the collective bargaining agreement was or will be applicable to the motion picture.
"(B)(i) Constructive knowledge that the collective bargaining agreement was or will be applicable to the motion picture, arising from recordation of a document pertaining to copyright in the motion picture under section 205 of title 17 or from publication, at a site available to the public on-line that is operated by the relevant union, of information that identifies the motion picture as subject to a collective bargaining agreement with that union, if the site permits commercially reasonable verification of the date on which the information was available for access.
"(ii) Clause (i) applies only if the transfer referred to in subsection (a)(1) occurs-
"(I) after the motion picture is completed, or
"(II) before the motion picture is completed and-
"(aa) within 18 months before the filing of an application for copyright registration for the motion picture under section 408 of title 17, or
"(bb) if no such application is filed, within 18 months before the first publication of the motion picture in the United States.
"(C) Awareness of other facts and circumstances pertaining to a particular transfer from which it is apparent that the collective bargaining agreement was or will be applicable to the motion picture.
"(b) Scope of Exclusion of Transfers of Public Performance Rights. For purposes of this section, the exclusion under subsection (a) of transfers of copyright ownership in a motion picture that are limited to public performance rights includes transfers to a terrestrial broadcast station, cable system, or programmer to the extent that the station, system, or programmer is functioning as an exhibitor of the motion picture, either by exhibiting the motion picture on its own network, system, service, or station, or by initiating the transmission of an exhibition that is carried on another network, system, service, or station. When a terrestrial broadcast station, cable system, or programmer, or other transferee, is also functioning otherwise as a distributor or as a producer of the motion picture, the public performance exclusion does not affect any obligations imposed on the transferee to the extent that it is engaging in such functions.
"(c) Exclusion for Grants of Security Interests. Subsection (a) shall not apply to-
"(1) a transfer of copyright ownership consisting solely of a mortgage, hypothecation, or other security interest; or
"(2) a subsequent transfer of the copyright ownership secured by the security interest described in paragraph (1) by or under the authority of the secured party, including a transfer through the exercise of the secured party's rights or remedies as a secured party, or by a subsequent transferee.
"The exclusion under this subsection shall not affect any rights or remedies under law or contract.
"(d) Deferral Pending Resolution of Bona Fide Dispute.
"A transferee on which obligations are imposed under subsection (a) by virtue of paragraph (1) of that subsection may elect to defer performance of such obligations that are subject to a bona fide dispute between a union and a prior transferor until that dispute is resolved, except that such deferral shall not stay accrual of any union claims due under an applicable collective bargaining agreement.
"(e) Scope of Obligations Determined by Private Agreement. Nothing in this section shall expand or diminish the rights, obligations, or remedies of any person under the collective bargaining agreements or assumption agreements referred to in this section.
"(f) Failure to Notify. If the transferor under subsection (a) fails to notify the transferee under subsection (a) of applicable collective bargaining obligations before the execution of the transfer instrument, and subsection (a) is made applicable to the transferee solely by virtue of subsection (a)(1)(B), the transferor shall be liable to the transferee for any damages suffered by the transferee as a result of the failure to notify.
"(g) Determination of Disputes and Claims. Any dispute concerning the application of subsections (a) through (f) shall be determined by an action in United States district court, and the court in its discretion may allow the recovery of full costs by or against any party and may also award a reasonable attorney's fee to the prevailing party as part of the costs.
"(h) Study. The Comptroller General, in consultation with the Register of Copyrights, shall conduct a study of the conditions in the motion picture industry that gave rise to this section, and the impact of this section on the motion picture industry. The Comptroller General shall report the findings of the study to the Congress within 2 years after the effective date of this chapter."
* * * * * * *
SEC. 407. EFFECTIVE DATE.
Except as otherwise provided in this title, this title and the amendments made by this title shall take effect on the date of the enactment of this Act.
* * * * * * *
Title V-Protection of Certain Original Designs
SEC. 501. SHORT TITLE.
This Act may be referred to as the "Vessel Hull Design Protection Act".
* * * * * * *
SEC. 503. CONFORMING AMENDMENTS.
* * * * * * *
(b) Jurisdictions of District Courts Over Design Actions. (1) Section 1338(c) of title 28, United States Code, is amended by inserting ", and to exclusive rights in designs under chapter 13 of title 17," after "title 17".
(2)(A) The section heading for section 1338 of title 28, United States Code, is amended by inserting "designs," after "mask works,".
(B) The item relating to section 1338 in the table of sections at the beginning of chapter 85 of title 28, United States Code, is amended by inserting "designs," after "mask works,".
(c) Place for Bringing Design Actions. (1) Section 1400(a) of title 28, United States Code, is amended by inserting "or designs" after "mask works".
(2) The section heading for section 1400 of title 28, United States Code is amended to read as follows:
"Patents and copyrights, mask works, and designs".
(3) The item relating to section 1400 in the table of sections at the beginning of chapter 87 of title 28, United States Code, is amended to read as follows:
"1400. Patents and copyrights, mask works, and designs.".
(d) Actions Against the United States. Section 1498(e) of title 28, United States Code, is amended by inserting ", and to exclusive rights in designs under chapter 13 of title 17," after "title 17".
SEC. 504. JOINT STUDY OF THE EFFECT OF THIS TITLE [2]
(a) In General. Not later than November 1, 2003, the Register of Copyrights and the Commissioner of Patents and Trademarks shall submit to the Committees on the Judiciary of the Senate and the House of Representatives a joint report evaluating the effect of the amendments made by this title.
(b) Elements for Consideration. In carrying out subsection (a), the Register of Copyrights and the Commissioner of Patents and Trademarks shall consider-
(1) the extent to which the amendments made by this title has been effective in suppressing infringement of the design of vessel hulls;
(2) the extent to which the registration provided for in chapter 13 of title 17, United States Code, as added by this title, has been utilized;
(3) the extent to which the creation of new designs of vessel hulls have been encouraged by the amendments made by this title;
(4) the effect, if any, of the amendments made by this title on the price of vessels with hulls protected under such amendments; and
(5) such other considerations as the Register and the Commissioner may deem relevant to accomplish the purposes of the evaluation conducted under subsection (a).
SEC. 505. EFFECTIVE DATE. [3]
The amendments made by sections 502 and 503 shall take effect on the date of the enactment of this Act.
—————————- Appendix V Endnotes
1 Part V of the Appendix contains provisions from the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, that do not amend title 17 of the *United States Code.*
2 The Satellite Home Viewer Improvement Act of 1999 amended section 504(a) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-593.
3 The Intellectual Property and Communications Omnibus Reform Act of 1999 amended section 505 by deleting everything at the end of the sentence, after "Act." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-593.
————————————————————————————————————
Appendix VI. Definition of "Berne Convention Work"
The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 deleted the definition of "Berne Convention work" from section 101. [1] Pub. L. No. 105-304, 112 Stat. 2861. The definition of Berne Convention work, as deleted, is as follows:
A work is a "Berne Convention work" if-
(1) in the case of an unpublished work, one or more of the authors is a national of a nation adhering to the Berne Convention, or in the case of a published work, one or more of the authors is a national of a nation adhering to the Berne Convention on the date of first publication;
(2) the work was first published in a nation adhering to the Berne Convention, or was simultaneously first published in a nation adhering to the Berne convention and in a foreign nation that does not adhere to the Berne Convention;
(3) in the case of an audiovisual work-
(A) if one or more of the authors is a legal entity, that author has its headquarters in a nation adhering to the Berne Convention; or
(B) if one or more of the authors is an individual, that author is domiciled, or has his or her habitual residence in, a nation adhering to the Berne Convention; or
(4) in the case of a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, the building or structure is located in a nation adhering to the Berne Convention; or
(5) in the case of an architectural work embodied in a building, such building is erected in a country adhering to the Berne Convention.
For purposes of paragraph (1), an author who is domiciled in or has his or her habitual residence in, a nation adhering to the Berne Convention is considered to be a national of that nation. For purposes of paragraph (2), a work is considered to have been simultaneously published in two or more nations if its dates of publication are within 30 days of one another.
—————————- Appendix VI Endnote
1 For a discussion of the legislative history of the definition of "Berne Convention work," see endnote 2, chapter 1, *supra.*
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Appendix VII. Selected Provisions of the U.S. Code Relating to Copyright
Title 18 - Crimes and Criminal Procedure
Part I - Crimes
Chapter 113 - Stolen Property
* * * * * * *
Sec. 2318. Trafficking in counterfeit labels for phonorecords, copies of computer programs or computer program documentation or packaging, and copies of motion pictures or other audio visual works, and trafficking in counterfeit computer program documentation or packaging. [1]
(a) Whoever, in any of the circumstances described in subsection (c) of this section, knowingly traffics in a counterfeit label affixed or designed to be affixed to a phonorecord, or a copy of a computer program or documentation or packaging for a computer program, or a copy of a motion picture or other audiovisual work, and whoever, in any of the circumstances described in subsection (c) of this section, knowingly traffics in counterfeit documentation or packaging for a computer program, shall be fined under this title or imprisoned for not more than five years, or both.
(b) As used in this section-
(1) the term "counterfeit label" means an identifying label or container that appears to be genuine, but is not;
(2) the term "traffic" means to transport, transfer or otherwise dispose of, to another, as consideration for anything of value or to make or obtain control of with intent to so transport, transfer or dispose of; and
(3) the terms "copy", "phonorecord", "motion picture", "computer program", and "audiovisual work" have, respectively, the meanings given those terms in section 101 (relating to definitions) of title 17.
(c) The circumstances referred to in subsection (a) of this section are-
(1) the offense is committed within the special maritime and territorial jurisdiction of the United States; or within the special aircraft jurisdiction of the United States (as defined in section 46501 of title 49);
(2) the mail or a facility of interstate or foreign commerce is used or intended to be used in the commission of the offense;
(3) the counterfeit label is affixed to or encloses, or is designed to be affixed to or enclose, a copy of a copyrighted computer program or copyrighted documentation or packaging for a computer program, a copyrighted motion picture or other audiovisual work, or a phonorecord of a copyrighted sound recording; or
(4) the counterfeited documentation or packaging for a computer program is copyrighted.
(d) When any person is convicted of any violation of subsection (a), the court in its judgment of conviction shall in addition to the penalty therein prescribed, order the forfeiture and destruction or other disposition of all counterfeit labels and all articles to which counterfeit labels have been affixed or which were intended to have had such labels affixed.
(e) Except to the extent they are inconsistent with the provisions of this title, all provisions of section 509, title 17, United States Code, are applicable to violations of subsection (a).
Sec. 2319. Criminal infringement of a copyright [2]
(a) Whoever violates section 506(a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b) and (c) of this section and such penalties shall be in addition to any other provisions of title 17 or any other law.
(b) Any person who commits an offense under section 506 (a)(1) of title 17-
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.
(c) Any person who commits an offense under section 506(a)(2) of title 17, United States Code-
(1) shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more;
(2) shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.
(d) (1) During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim.
(2) Persons permitted to submit victim impact statements shall include-
(A) producers and sellers of legitimate works affected by conduct involved in the offense;
(B) holders of intellectual property rights in such works; and
(C) the legal representatives of such producers, sellers, and holders.
(e) As used in this section-
(1) the terms "phonorecord" and "copies" have, respectively, the meanings set forth in section 101 (relating to definitions) of title 17; and
(2) the terms "reproduction" and "distribution" refer to the exclusive rights of a copyright owner under clauses (1) and (3) respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 120, of title 17.
Sec. 2319A. Unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances [3]
(a) Offense. Whoever, without the consent of the performer or performers involved, knowingly and for purposes of commercial advantage or private financial gain-
(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance 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 in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States;
shall be imprisoned for not more than 5 years or fined in the amount set forth in this title, or both, or if the offense is a second or subsequent offense, shall be imprisoned for not more than 10 years or fined in the amount set forth in this title, or both.
(b) Forfeiture and Destruction. When a person is convicted of a violation of subsection (a), the court shall order the forfeiture and destruction of any copies or 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 forfeiture 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) Seizure and Forfeiture. 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 the performer or performers involved, such copies or phonorecords are subject to seizure and forfeiture in the United States in the same manner as property imported in violation of the customs laws. The Secretary of the Treasury shall, not later than 60 days after the date of the enactment of the Uruguay Round Agreements Act, issue regulations to carry out this subsection, including regulations by which any performer may, upon payment of a specified fee, be entitled to notification by the United States Customs Service of the importation of copies or phonorecords that appear to consist of unauthorized fixations of the sounds or sounds and images of a live musical performance.
(d) Victim Impact Statement.
(1) During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim.
(2) Persons permitted to submit victim impact statements shall include-
(A) producers and sellers of legitimate works affected by conduct involved in the offense;
(B) holders of intellectual property rights in such works; and
(C) the legal representatives of such producers, sellers, and holders.
(e) Definitions. As used in this section-
(1) the terms "copy", "fixed", "musical work", "phonorecord", "reproduce", "sound recordings", and "transmit" mean those terms within the meaning of title 17; and
(2) the term "traffic in" means transport, transfer, or otherwise dispose of, to another, as consideration for anything of value, or make or obtain control of with intent to transport, transfer, or dispose of.
(f) Applicability. This section shall apply to any Act or Acts that occur on or after the date of the enactment of the Uruguay Round Agreements Act.
* * * * * * *
Title 28 - Judiciary and Judicial Procedure
Part IV - Jurisdiction and Venue
Chapter 85 - District Courts; Jurisdiction
* * * * * * *
Sec. 1338. Patents, plant variety protection, copyrights, mask works, trade-marks, and unfair competition {4}
(a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases.
(b) The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, plant variety protection or trade-mark laws.
(c) Subsections (a) and (b) apply to exclusive rights in mask works under chapter 9 of title 17 to the same extent as such subsections apply to copyrights.
* * * * * * * * *
Chapter 91 - United States Court of Federal Claims
* * * * * * * * *
Sec. 1498. Patent and copyright cases [5]
* * * * * * * * *
(b) Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504(c) of title 17, United States Code: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted the appropriate corporation owned or controlled by the United States or the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations.
Except as otherwise provided by law, no recovery shall be had for any infringement of a copyright covered by this subsection committed more than three years prior to the filing of the complaint or counterclaim for infringement in the action, except that the period between the date of receipt of a written claim for compensation by the Department or agency of the Government or corporation owned or controlled by the United States, as the case may be, having authority to settle such claim and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the three years, unless suit is brought before the last-mentioned date.
(c) The provisions of this section shall not apply to any claim arising in a foreign country.
* * * * * * * * * *
(e) Subsections (b) and (c) of this section apply to exclusive rights in mask works under chapter 9 of title 17 to the same extent as such subsections apply to copyrights.
* * * * * * * * * *
Title 44 - Public Printing and Documents
Chapter 21 - National Archives and Records Administration
* * * * * * * * * *
Sec. 2117. Limitation on liability [6]
When letters and other intellectual productions (exclusive of patented material, published works under copyright protection, and unpublished works for which copyright registration has been made) come into the custody or possession of the Archivist, the United States or its agents are not liable for infringement of copyright or analogous rights arising out of use of the materials for display, inspection, research, reproduction, or other purposes.
——————————- Appendix VII Endnotes
1 In 1962, section 2318, entitled "Transportation, sale, or receipt of phonograph records bearing forged or counterfeit labels," was added to title 18 of the *United States Code.* Pub. L. No. 87-773, 76 Stat. 775. In 1974, section 2318 was amended to change the penalties. Pub. L. No. 93-573, 88 Stat. 1873. The Copyright Act of 1976 revised section 2318 with an amendment in the nature of a substitute. Pub. L. No. 94-553, 90 Stat. 2541, 2600. The Piracy and Counterfeiting Amendments Act of 1982 again revised section 2318 with an amendment in the nature of a substitute that included a new title, "Trafficking in counterfeit labels for phonorecords, and copies of motion pictures or other audiovisual works." Pub. L. No. 97-180, 96 Stat. 91. The Crime Control Act of 1990 made a technical amendment to section 2318 to delete the comma after "phonorecords" in the title. Pub. L. No. 101-647, 104 Stat. 4789, 4928. In 1994, section 2318(c)(1) was amended by inserting "section 46501 of title 49" in lieu of "section 101 of the Federal Aviation Act of 1958. Pub. L. No. 103-272, 108 Stat. 745, 1374. The Violent Crime Control and Law Enforcement Act of 1994 amended section 2318(a) by inserting "under this title" in lieu of "not more than $250,000." Pub. L. No. 103-322, 108 Stat. 1796, 2148. (As provided in 18 U.S.C. Sec. 3571, the maximum fine for an individual is $250,000, and the maximum fine for an organization is $500,000.)
The Anticounterfeiting Consumer Protection Act of 1996 amended section 2318 by changing the title, by amending subsection (a) to insert "a computer program or documentation" through to "knowingly traffics in counterfeit documentation or packaging for a computer program" in lieu of "a motion picture or other audiovisual work" and by amending subsection (b)(3) to insert "computer program" after "motion picture." Pub. L. No. 104-153, 110 Stat. 1386. The Act also amended section 2318(c) by inserting "a copy of a copyrighted computer program or copyrighted documentation or packaging for a computer program" into paragraph (3) and by adding paragraph (4). *Id.* at 1387.
2 The Piracy and Counterfeiting Amendments Act of 1982 added section 2319 to title 18 of the *United States Code.* Pub. L. No. 97-180, 96 Stat. 91, 92. In 1992, section 2319 was amended by substituting a new subsection (b), by deleting "sound recording," "motion picture" and "audiovisual work" from subsection (c)(1) and by substituting "120" for "118" in subsection (c)(2). Pub. L. No. 102-561, 106 Stat. 4233. In 1997, a technical amendment corrected the spelling of "last" in subsection (b)(1) to "least." Pub. L. No. 105-80, 111 Stat. 1529, 1536.
In 1997, the No Electronic Theft Act amended section 2319 of title 18 as follows: 1) in subsection (a) by inserting "and (c)" after "subsection (b),"; 2) in subsection (b), in the matter preceding paragraph (1), by inserting "section 506(a)(1) of title 17" in lieu of "subsection (a) of this section,"; 3) in subsection (b)(1) by inserting "including by electronic means" and by inserting "which have a total retail value" in lieu of "with a retail value," 4) by redesignating subsection (c) as subsection (e); and 5) by adding new subsections (c) and (d). Pub. L. No. 105-147, 111 Stat. 2678. The Act also directed the United States Sentencing Commission to "ensure that the applicable guideline range for a defendant convicted of a crime against intellectual property . . . is sufficiently stringent to deter such a crime" and to "ensure that the guidelines provide for consideration of the retail value and quantity of the items with respect to which the crime against intellectual property was committed."* Id.* See also endnote 5, chapter 5, *supra.*
3 In 1994, the Uruguay Round Agreements Act added section 2319A to title 18 of the *United States Code.* Pub. L. No. 103-465, 108 Stat. 4809, 4974. In 1997, the No Electronic Theft Act amended section 2319A by redesignating subsections (d) and (e) as subsections (e) and (f), respectively, and by adding subsection (d). Pub. L. No. 105-147, 111 Stat. 2678. See also endnote 2, *supra*, regarding the United States Sentencing Commission.
4 In 1948, section 1338, entitled "Patents, copyrights, trade-marks, and unfair competition," was added to title 28 of the *United States Code.* Pub. L. No. 773, 62 Stat. 869, 931. In 1970, the title of section 1338 and the text of subsection (b) were amended to insert "plant variety protection" after "patent." Pub. L. No. 91-577, 84 Stat. 1542, 1559. In 1988, the Judicial Improvements and Access to Justice Act amended section 1338 by adding "mask works" to the title and by adding subsection (c). Pub. L. No. 100-702, 102 Stat. 4642, 4671.
5 In 1960, section 1498 of the *United States Code* was amended to add subsections (b) and (c). Pub. L. No. 86-726, 74 Stat. 855. The Copyright Act of 1976 amended section 1498(b) to insert "section 504(c) of title 17" in lieu of "section 101(b) of title 17." Pub. L. No. 94-553, 90 Stat. 2541, 2599. The Federal Courts Improvement Act of 1982 amended section 1498(a) to insert "United States Claims Court" in lieu of "Court of Claims" and, in subsections (b) and (d), to insert "Claims Court" in lieu of "Court of Claims," wherever it appeared. Pub. L. No. 97-164, 96 Stat. 25, 40. In 1988, the Judicial Improvements and Access to Justice Act amended section 1498 by adding subsection (e). Pub. L. No. 100-702, 102 Stat. 4642, 4671. The Federal Courts Administration Act of 1992 amended section 1498 by inserting "United States Court of Federal Claims" in lieu of "United States Claims Court," wherever it appeared, and by inserting "Court of Federal Claims" in lieu of "Claims Court," wherever it appeared. Pub. L. No. 102-572, 106 Stat. 4506, 4516. In 1997, the No Electronic Theft (NET) Act amended section 1498(b) to insert "action which may be brought for such infringement shall be an action by the copyright owner" in lieu of "remedy of the owner of such copyright shall be by action." Pub. L. No. 105-147, 111 Stat. 2678, 2680.
6 In 1968, section 2113, entitled "Limitation on liability," was added to title 44 of the *United States Code.* Pub. L. No. 90-620, 82 Stat. 1238, 1291. The Copyright Act of 1976 amended section 2113 in its entirety. Pub. L. No. 94-553, 90 Stat. 2541, 2599. The National Archives and Records Administration Act of 1984 amended section 2113 by redesignating it as section 2117 and by inserting "Archivist" in lieu of "Administrator of General Services." Pub. L. No. 98-497, 98 Stat. 2280 and 2286.
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09-Aug-2001
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