[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2281 Enrolled Bill (ENR)]
H.R.2281
One Hundred Fifth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the twenty-seventh day of January, one thousand nine hundred and ninety-
eight
An Act
To amend title 17, United States Code, to implement the World
Intellectual Property Organization Copyright Treaty and Performances and
Phonograms Treaty, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

859ef6fa5d2a6111557f38840c90717d1c8372800e992bfcf97bd18d1ae9106e

This Act may be cited as the ``Digital Millennium Copyright Act''.

c4d1ffc8d7a70902ddb73fe7223c0f972e8ae2b1f4c5f42efa37827377dee275

cc66cc4086e9d9b4e2570025603151d7c82df03bb927f4e2f6bb4348dd0903af

TITLE I

-WIPO TREATIES IMPLEMENTATION

electronic commerce and technological development.

59e4fe8e7e4d43d8ed9a419805ec490c226ba2feb5413c984d1a6536bc866b5d

Trademarks and the Register of Copyrights.

8d5c9b6c42968597c1c3ff6fb109b288771e7f70e3ff78c3cfc079a48aa62503

TITLE IV

-MISCELLANEOUS PROVISIONS

d6bece913d8aad31f90415972c83ea6bb11280c5ac1efb90201aeee96c839744

978dbfe8a4ecc2517c76c737c0b5c8311c90fc766abc9750aefbdb555c10455c

This title may be cited as the ``WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998''.

11e9e7447931192a573ec2faf1d10a657f7814dee1bc9406c779aab15b1efb52

(a) Definitions.--Section 101 of title 17, United States Code, is
amended--
(1) by striking the definition of ``Berne Convention work'';
(2) in the definition of ``The `country of origin' of a Berne
Convention work''--
(A) by striking ``The `country of origin' of a Berne
Convention work, for purposes of section 411, is the United
States if'' and inserting ``For purposes of section 411, a work
is a `United States work' only if'';
(B) in paragraph (1)--
(i) in subparagraph (B) by striking ``nation or nations
adhering to the Berne Convention'' and inserting ``treaty
party or parties'';
(ii) in subparagraph (C) by striking ``does not adhere
to the Berne Convention'' and inserting ``is not a treaty
party''; and
(iii) in subparagraph (D) by striking ``does not adhere
to the Berne Convention'' and inserting ``is not a treaty
party''; and
(C) in the matter following paragraph (3) by striking ``For
the purposes of section 411, the `country of origin' of any
other Berne Convention work is not the United States.'';
(3) by inserting after the definition of ``fixed'' the
following:
``The `Geneva Phonograms Convention' is the Convention for the
Protection of Producers of Phonograms Against Unauthorized
Duplication of Their Phonograms, concluded at Geneva, Switzerland,
on October 29, 1971.'';
(4) by inserting after the definition of ``including'' the
following:
``An `international agreement' is--
``(1) the Universal Copyright Convention;
``(2) the Geneva Phonograms Convention;
``(3) the Berne Convention;
``(4) the WTO Agreement;
``(5) the WIPO Copyright Treaty;
``(6) the WIPO Performances and Phonograms Treaty; and
``(7) any other copyright treaty to which the United States
is a party.'';
(5) by inserting after the definition of ``transmit'' the
following:
``A `treaty party' is a country or intergovernmental
organization other than the United States that is a party to an
international agreement.'';
(6) by inserting after the definition of ``widow'' the
following:
``The `WIPO Copyright Treaty' is the WIPO Copyright Treaty
concluded at Geneva, Switzerland, on December 20, 1996.'';
(7) by inserting after the definition of ``The `WIPO Copyright
Treaty''' the following:
``The `WIPO Performances and Phonograms Treaty' is the WIPO
Performances and Phonograms Treaty concluded at Geneva,
Switzerland, on December 20, 1996.''; and
(8) by inserting after the definition of ``work made for hire''
the following:
``The terms `WTO Agreement' and `WTO member country' have the
meanings given those terms in paragraphs (9) and (10),
respectively, of section 2 of the Uruguay Round Agreements Act.''.
(b) Subject Matter of Copyright; National Origin.--Section 104 of
title 17, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1) by striking ``foreign nation that is a
party to a copyright treaty to which the United States is also
a party'' and inserting ``treaty party'';
(B) in paragraph (2) by striking ``party to the Universal
Copyright Convention'' and inserting ``treaty party'';
(C) by redesignating paragraph (5) as paragraph (6);
(D) by redesignating paragraph (3) as paragraph (5) and
inserting it after paragraph (4);
(E) by inserting after paragraph (2) the following:
``(3) the work is a sound recording that was first fixed in a
treaty party; or'';
(F) in paragraph (4) by striking ``Berne Convention work''
and inserting ``pictorial, graphic, or sculptural work that is
incorporated in a building or other structure, or an
architectural work that is embodied in a building and the
building or structure is located in the United States or a
treaty party''; and
(G) by inserting after paragraph (6), as so redesignated,
the following:
``For purposes of paragraph (2), a work that is published in the United
States or a treaty party within 30 days after publication in a foreign
nation that is not a treaty party shall be considered to be first
published in the United States or such treaty party, as the case may
be.''; and
(2) by adding at the end the following new subsection:
``(d) Effect of Phonograms Treaties.--Notwithstanding the
provisions of subsection (b), no works other than sound recordings
shall be eligible for protection under this title solely by virtue of
the adherence of the United States to the Geneva Phonograms Convention
or the WIPO Performances and Phonograms Treaty.''.
(c) Copyright in Restored Works.--Section 104A(h) of title 17,
United States Code, is amended--
(1) in paragraph (1), by striking subparagraphs (A) and (B) and
inserting the following:
``(A) a nation adhering to the Berne Convention;
``(B) a WTO member country;
``(C) a nation adhering to the WIPO Copyright Treaty;
``(D) a nation adhering to the WIPO Performances and
Phonograms Treaty; or
``(E) subject to a Presidential proclamation under
subsection (g).'';
(2) by amending paragraph (3) to read as follows:
``(3) The term `eligible country' means a nation, other than
the United States, that--
``(A) becomes a WTO member country after the date of the
enactment of the Uruguay Round Agreements Act;
``(B) on such date of enactment is, or after such date of
enactment becomes, a nation adhering to the Berne Convention;
``(C) adheres to the WIPO Copyright Treaty;
``(D) adheres to the WIPO Performances and Phonograms
Treaty; or
``(E) after such date of enactment becomes subject to a
proclamation under subsection (g).'';
(3) in paragraph (6)--
(A) in subparagraph (C)(iii) by striking ``and'' after the
semicolon;
(B) at the end of subparagraph (D) by striking the period
and inserting ``; and''; and
(C) by adding after subparagraph (D) the following:
``(E) if the source country for the work is an eligible
country solely by virtue of its adherence to the WIPO
Performances and Phonograms Treaty, is a sound recording.'';
(4) in paragraph (8)(B)(i)--
(A) by inserting ``of which'' before ``the majority''; and
(B) by striking ``of eligible countries''; and
(5) by striking paragraph (9).
(d) Registration and Infringement Actions.--Section 411(a) of title
17, United States Code, is amended in the first sentence--
(1) by striking ``actions for infringement of copyright in
Berne Convention works whose country of origin is not the United
States and''; and
(2) by inserting ``United States'' after ``no action for
infringement of the copyright in any''.
(e) Statute of Limitations.--Section 507(a) of title 17, United
State Code, is amended by striking ``No'' and inserting ``Except as
expressly provided otherwise in this title, no''.

700f92418e071b23e916635bf1526166baf855054840773547b7e08c178b551d

370c99e05414c99a3f58d697f2eae1dc871fcb23fec24123cb412dab9f505310

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.

29fc37c257de39179e60931c0233e3fb46c63322092e2f5fb23c372c58f52f0b

(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.

1a3cd8aed3f6c940897fec4cb58b5cda7094edb781ab8bc405213c0b588e85fc

This title may be cited as the ``Online Copyright Infringement
Liability Limitation Act''.

d7d3ff6419cfc54e7495f1c6faf24b6be3c7a5f4e89e54a6c01030d20fe0962c

TITLE II

-ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

71f8c41731bac451b2188dbdb926d5a08389c32bcc824c8e5fcded50a00d1a12

This title and the amendments made by this title shall take effect
on the date of the enactment of this Act.

adfacf7ec5f621c5c25610aa9f18e37bea31582d67ba18445f7ee726fd13b3b6

This title may be cited as the ``Computer Maintenance Competition
Assurance Act''.

9a15bd0ed7b0d7102c1a5a82608ee62af22818780d969a96590f436a455da9f5

TITLE III

-COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

Section 117 of title 17, United States Code, is amended--
(1) by striking ``Notwithstanding'' and inserting the following:
``(a) Making of Additional Copy or Adaptation by Owner of Copy.--
Notwithstanding'';
(2) by striking ``Any exact'' and inserting the following:
``(b) Lease, Sale, or Other Transfer of Additional Copy or
Adaptation.--Any exact''; and
(3) by adding at the end the following:
``(c) Machine Maintenance or Repair.--Notwithstanding the
provisions of section 106, it is not an infringement for the owner or
lessee of a machine to make 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, if--
``(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 `maintenance' of a machine is the servicing of 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 `repair' of a machine is the restoring of the machine
to the state of working in accordance with its original
specifications and any changes to those specifications authorized
for that machine.''.

46b6e41f722a36266eacd5d6c586d90887e501a5b6893e7bb940e09104c815fd

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''.
(2) Section 701(e) of title 17, United States Code, is amended--
(A) by striking ``IV'' and inserting ``III''; and
(B) by striking ``5315'' and inserting ``5314''.
(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.''.
(b) Clarification of Authority of the Copyright Office.--Section
701 of title 17, United States Code, is amended--
(1) by redesignating subsections (b) through (e) as subsections
(c) through (f), respectively; and
(2) by inserting after subsection (a) the following:
``(b) In addition to the functions and duties set out elsewhere in
this chapter, the Register of Copyrights shall perform the following
functions:
``(1) Advise Congress on national and international issues
relating to copyright, other matters arising under this title, and
related matters.
``(2) Provide information and assistance to Federal departments
and agencies and the Judiciary on national and international issues
relating to copyright, other matters arising under this title, and
related matters.
``(3) Participate in meetings of international
intergovernmental organizations and meetings with foreign
government officials relating to copyright, other matters arising
under this title, and related matters, including as a member of
United States delegations as authorized by the appropriate
Executive branch authority.
``(4) Conduct studies and programs regarding copyright, other
matters arising under this title, and related matters, the
administration of the Copyright Office, or any function vested in
the Copyright Office by law, including educational programs
conducted cooperatively with foreign intellectual property offices
and international intergovernmental organizations.
``(5) Perform such other functions as Congress may direct, or
as may be appropriate in furtherance of the functions and duties
specifically set forth in this title.''.

589087472116adf9edc58d52de1f89cafd1b9804b4e8fcbc102c1045b9cdfc54

Section 112(a) of title 17, United States Code, is amended--
(1) by redesignating paragraphs (1), (2), and (3) as
subparagraphs (A), (B), and (C), respectively;
(2) by inserting ``(1)'' after ``(a)'';
(3) by inserting after ``under a license'' the following: ``,
including a statutory license under section 114(f),'';
(4) by inserting after ``114(a),'' the following: ``or for a
transmitting organization that is a broadcast radio or television
station licensed as such by the Federal Communications Commission
and that makes a broadcast transmission of a performance of a sound
recording in a digital format on a nonsubscription basis,''; and
(5) by adding at the end the following:
``(2) In a case in which a transmitting organization entitled to
make a copy or phonorecord under paragraph (1) in connection with the
transmission to the public of a performance or display of a work is
prevented from making such copy or phonorecord by reason of the
application by the copyright owner of technical measures that prevent
the reproduction of the work, the copyright owner shall make available
to the transmitting organization the necessary means for permitting the
making of such copy or phonorecord as permitted under that paragraph,
if it is technologically feasible and economically reasonable for the
copyright owner to do so. If the copyright owner fails to do so in a
timely manner in light of the transmitting organization's reasonable
business requirements, the transmitting organization shall not be
liable for a violation of section 1201(a)(1) of this title for engaging
in such activities as are necessary to make such copies or phonorecords
as permitted under paragraph (1) of this subsection.''.

9752781150af1e93c1495053dda72d76b4a9d3fc7aad32ff3fe6d0f5f977accb

(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.

be79239d5235462b27c4489a267d3ae69d6eec2a5b6d707e4f3d3ee492a27cd9

Section 108 of title 17, United States Code, is amended--
(1) in subsection (a)--
(A) by striking ``Notwithstanding'' and inserting ``Except
as otherwise provided in this title and notwithstanding'';
(B) by inserting after ``no more than one copy or
phonorecord of a work'' the following: ``, except as provided
in subsections (b) and (c)''; and
(C) in paragraph (3) by inserting after ``copyright'' the
following: ``that appears on the copy or phonorecord that is
reproduced under the provisions of this section, or includes a
legend stating that the work may be protected by copyright if
no such notice can be found on the copy or phonorecord that is
reproduced under the provisions of this section'';
(2) in subsection (b)--
(A) by striking ``a copy or phonorecord'' and inserting
``three copies or phonorecords'';
(B) by striking ``in facsimile form''; and
(C) by striking ``if the copy or phonorecord reproduced is
currently in the collections of the library or archives.'' and
inserting ``if--
``(1) the copy or phonorecord reproduced is currently in the
collections of the library or archives; and
``(2) any such copy or phonorecord that is reproduced in
digital format is not otherwise distributed in that format and is
not made available to the public in that format outside the
premises of the library or archives.''; and
(3) in subsection (c)--
(A) by striking ``a copy or phonorecord'' and inserting
``three copies or phonorecords'';
(B) by striking ``in facsimile form'';
(C) by inserting ``or if the existing format in which the
work is stored has become obsolete,'' after ``stolen,'';
(D) by striking ``if the library or archives has, after a
reasonable effort, determined that an unused replacement cannot
be obtained at a fair price.'' and inserting ``if--
``(1) the library or archives has, after a reasonable effort,
determined that an unused replacement cannot be obtained at a fair
price; and
``(2) any such copy or phonorecord that is reproduced in
digital format is not made available to the public in that format
outside the premises of the library or archives in lawful
possession of such copy.''; and
(E) by adding at the end the following:
``For purposes of this subsection, a format shall be considered
obsolete if the machine or device necessary to render perceptible a
work stored in that format is no longer manufactured or is no longer
reasonably available in the commercial marketplace.''.

67da5e1e794b1adebd54b965fe5aceeca0d833cf58bc475fc3ef6c5230c7f2c3

219564c7ce0806db751164a760f4ba8285aee4349358b71f7a3aa25a20c5981e

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.''.
(b) Conforming Amendment.--The table of chapters for part VI of
title 28, United States Code, is amended by adding at the end the
following:
``180. Assumption of Certain Contractual Obligations.............4001''.

5f45fc5d5d9447d5f210ddc9867a31316a1f39c7f7ca0b93a736d1ae059e32c6

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.

2ed109df8832ed1dff0550ab0f4745929d7c2c176619f2fdc5796860638c1835

This Act may be referred to as the ``Vessel Hull Design Protection
Act''.

e8404fe4ceeee9888b48165992948ceef9c60080269480ad3b68ab3220b5c5f2

TITLE V

-PROTECTION OF CERTAIN ORIGINAL DESIGNS

1d0548df3cb9a7f27f8b538efbba737f2d05a79a475ffcc200705d5319b2facc

``(a) In General.--A court having jurisdiction over actions under
this chapter may grant injunctions in accordance with the principles of
equity to prevent infringement of a design under this chapter,
including, in its discretion, prompt relief by temporary restraining
orders and preliminary injunctions.
``(b) Damages for Injunctive Relief Wrongfully Obtained.--A seller
or distributor who suffers damage by reason of injunctive relief
wrongfully obtained under this section has a cause of action against
the applicant for such injunctive relief and may recover such relief as
may be appropriate, including damages for lost profits, cost of
materials, loss of good will, and punitive damages in instances where
the injunctive relief was sought in bad faith, and, unless the court
finds extenuating circumstances, reasonable attorney's fees.
``Sec. 1323. Recovery for infringement
``(a) Damages.--Upon a finding for the claimant in an action for
infringement under this chapter, the court shall award the claimant
damages adequate to compensate for the infringement. In addition, the
court may increase the damages to such amount, not exceeding $50,000 or
$1 per copy, whichever is greater, as the court determines to be just.
The damages awarded shall constitute compensation and not a penalty.
The court may receive expert testimony as an aid to the determination
of damages.
``(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.
``Sec. 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.
``Sec. 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.
``Sec. 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.
``Sec. 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.
``Sec. 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.
``Sec. 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.
``Sec. 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.
``Sec. 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.
``Sec. 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.''.

eba7176d997b09e2b6db6ad6c3315bc5e4928a930216e48e27440cdbb5690ff7

(a) Table of Chapters.--The table of chapters for title 17, United
States Code, is amended by adding at the end the following:
``13. Protection of Original Designs.............................1301''.
(b) Jurisdiction 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''.

0684900c3310e7e2e9915f6db4b18d889e8fcdaa5e0139f57a0416defc723b1d

(a) In General.--Not later than 1 year after the date of the
enactment of this Act, and not later than 2 years after such date of
enactment, 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).

51652d5915669c25155fd7c09f3aa173a3bd7fb2502ca9db2393fe9a03748132

The amendments made by sections 502 and 503 shall take effect on
the date of the enactment of this Act and shall remain in effect until
the end of the 2-year period beginning on such date of enactment. No
cause of action based on chapter 13 of title 17, United States Code, as
added by this title, may be filed after the end of that 2-year period.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

0be78222989b2fad57da886fab597d42807566ce6de74bde71d5e6e2ede7d15f

WIPO Copyright Treaties Implementation Act — HR. 2281

Other Sections

TITLE I

TITLE IV

TITLE II

TITLE III

TITLE V

Want the full experience?