< Back to H.R. 4894 (103rd Congress, 1993–1994)

Text of the General Agreement on Tariffs and Trade Copyright Act of 1994

This bill was introduced on August 3, 1994, in a previous session of Congress, but was not enacted. The text of the bill below is as of Aug 3, 1994 (Introduced).

Source: GPO

HR 4894 IH

103d CONGRESS

2d Session

H. R. 4894

To prohibit unauthorized fixation of sound recordings and music videos of live musical performances and provide copyright protection in restored works, and for certain other purposes.

IN THE HOUSE OF REPRESENTATIVES

August 3, 1994

Mr. HUGHES introduced the following bill; which was referred to the Committee on the Judiciary


A BILL

To prohibit unauthorized fixation of sound recordings and music videos of live musical performances and provide copyright protection in restored works, and for certain other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ‘General Agreement on Tariffs and Trade Copyright Act of 1994’.

SEC. 2. RENTAL RIGHTS IN COMPUTER PROGRAMS.

    Section 804(c) of Public Law 101-650, 104 Stat. 5136, is amended by striking the first sentence.

TITLE I--FEDERAL ANTI-BOOTLEG PROVISIONS

SEC. 101. SHORT TITLE.

    This title may be cited as the ‘Federal Anti-Bootleg Act of 1994’.

SEC. 102. UNAUTHORIZED FIXATION OF AND TRAFFICKING IN SOUND RECORDINGS AND MUSIC VIDEOS OF LIVE MUSICAL PERFORMANCES.

    Title 18, United States Code, is amended by adding the following:

‘Sec. 2319A. Unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances

    ‘(a) Whoever, without the consent of a featured performer, 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 phonorecords or copies 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 any copy or phonorecord fixed without the consent of a featured performer, regardless of whether the fixations occurred in the United States;

    shall, upon judgment of conviction, be fined not more than $250,000 or imprisoned for not more than 5 years, or both.

    ‘(b) When a person is convicted of a violation of subsection (a), the court shall in its judgment of conviction order the forfeiture and destruction of any copies of phonorecords created in violation thereof, as well as any plates, molds, matrices, masters, tapes, and film negatives by means of which such copies or phonorecords may be made. The court may also, in its discretion, order the 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) If copies or phonorecords of sounds or sounds and images of a live musical performance are fixed outside of the United States without the consent of a featured performer, such copies or phonorecords are subject to seizure and forfeiture in the same manner as property imported in violation of the customs revenue laws. The Secretary of the Treasury and the United States Postal Service shall, separately or jointly, make regulations for the enforcement of the provisions of this subsection, including regulations by which any featured performer may, upon payment of a specified fee, be entitled to notification by the United States Customs Service of the importation of phonorecords or copies that appear to consist of unauthorized fixations of the sounds or sounds and images of a live musical performance.

    ‘(d) As used in this section--

      ‘(1) The terms ‘copy’, ‘fixed’, ‘musical work’, ‘phonorecord’, ‘reproduce’, ‘sound recordings’, and ‘transmit’ have the same meanings given such terms in section 101 of title 17, United States Code.

      ‘(2) The term ‘traffic’ means transport, 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.

    ‘(e) This section shall apply to the following acts that occur 1 year after the entry into force of the World Trade Organization Agreement--

      ‘(1) live musical performances fixed without the consent of a featured performer;

      ‘(2) distributions, offers to sell, sales, offers to sell, rentals, offers to rent, or trafficking in any copy or phonorecord fixed without the consent of a featured performer, regardless of when the fixation occurred; and

      ‘(3) transmissions or other communications to the public of sounds or sounds and images of a live musical performance fixed without consent of a featured performer.’.

TITLE II--COPYRIGHT IN RESTORED WORKS

SEC. 201. SHORT TITLE.

    This title may be cited as the ‘Berne and GATT Retroactivity Act of 1994’.

SEC. 202. RESTORED WORKS.

    (a) IN GENERAL- Section 104A of title 17, United States Code, is amended to read as follows:

‘SEC. 104A. COPYRIGHT IN RESTORED WORKS.

    ‘(a) AUTOMATIC PROTECTION AND TERM-

      ‘(1) TERM- Copyright subsists, in accordance with this section, in restored works, and vests automatically on the date of restoration.

        ‘(A) Copyright in restored works published or registered with the Copyright Office before January 1, 1978, shall endure for a term of 75 years from the date of first publication or registration as the case may be.

        ‘(B) Copyright in works created on or after January 1, 1978, shall endure for the term of protection established in section 302.

      ‘(2) EXCEPTION- No work in which the copyright was ever owned or administered by the Alien Property Custodian and in which the restored copyright would be owned by a government or instrumentality thereof, shall be a restored work.

    ‘(b) OWNERSHIP OF RESTORED COPYRIGHT- A restored work vests initially in the author of the work as determined according to the law of its source country.

    ‘(c) FILING OF NOTICE OF INTENT TO ENFORCE RESTORED COPYRIGHT AGAINST RELIANCE PARTIES- Any person owning copyright in a restored work or an exclusive right therein may file with the Copyright Office a notice of intent to enforce that copyright against reliance parties. Acceptance of a notice by the Copyright Office shall not create a presumption of the validity of any of the facts stated therein.

    ‘(d) REMEDIES FOR INFRINGEMENT OF RESTORED COPYRIGHTS-

      ‘(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN THE ABSENCE OF A RELIANCE PARTY- As against any party who is not a reliance party, the remedies provided in chapter 5 of this title shall be available immediately upon restoration with respect to any infringing act commenced on or after the date of restoration.

      ‘(2) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS AS AGAINST RELIANCE PARTIES- As against a reliance party, subject to paragraph (3), the remedies provided in chapter 5 of this title shall be available upon restoration--

        ‘(A)(i) if the owner of the restored work files with the Copyright Office, between the date of restoration and 24 months thereafter, a notice of intent to enforce a restored work; and

        ‘(ii) the act of infringement commenced on or after 12 months from the date of publication of the notice in the Federal Register;

        ‘(B)(i) if the owner of the copyright in the restored work or an exclusive right therein serves upon that reliance party a notice of intent to enforce a restored work; and

        ‘(ii) the act of infringement commenced prior to receipt of the notice;

        ‘(C) if copies of a restored work are made after publication of the notice of intent in the Federal Register; or

        ‘(D) in the case of a particular reliance party, after receipt of a notice of intent to enforce the restored work.

      ‘(3) COMMENCEMENT OF INFRINGEMENT FOR RELIANCE PARTIES- For purposes of section 412, in the case of reliance parties, infringement shall be deemed to have commenced prior to registration when acts which would have constituted infringement were committed prior to the date of the restoration and continued after such date.

    ‘(e) NOTICES OF INTENT TO ENFORCE A RESTORED COPYRIGHT-

      ‘(1) NOTICES OF INTENT FILED WITH THE COPYRIGHT OFFICE- (A)(i) Notices of intent filed with the Copyright Office to enforce a restored work shall be signed by the owner of the copyright or the owner of the exclusive right filing the notice and shall identify the title of the restored work. If the notice is signed by an agent, the agency relationship must have been constituted in a writing signed by the owner of the restored work or the owner of the exclusive right therein prior to the filing of the notice. The notice may contain any other information specified in regulations established by the Register of Copyrights pursuant to this section.

      ‘(ii) If a restored work has no formal title, it shall be described in the notice of intent in detail sufficient to aid in its identification. Minor errors or omissions may be corrected after the period established in subsection (d)(2)(A) and shall be published by the Register of Copyrights in the Federal Register pursuant to subparagraph (B).

      ‘(B)(i) The Register of Copyrights shall publish in the Federal Register, commencing not later than 4 months after the date of the Agreement on Trade-Related Aspects of Intellectual Property of the General Agreement on Tariffs and Trade becomes effective with respect to the United States and every 4 months thereafter, lists identifying restored works and the ownership thereof if a notice of intent to enforce a restored work has been filed.

      ‘(ii) Not less than 1 list containing all notices of intent to enforce a restored work filed with the Copyright Office shall be maintained in the Public Information Office of the Copyright Office and shall be available for inspection and copying during regular business hours pursuant to sections 705 and 708.

      ‘(C) The Register of Copyrights is authorized to fix reasonable fees based on the costs of receipt, processing, recording, and publication of notices of intent to enforce a restored work.

      ‘(D)(i) Not later than 30 days after the date the Agreement on Trade-Related Aspects of Intellectual Property of the General Agreement on Tariffs and Trade becomes effective with respect to the United States, the Copyright Office shall establish and publish in the Federal Register regulations governing the filing under this subsection of notices of intent to enforce a restored work.

      ‘(ii) Such regulations shall permit owners of restored works to simultaneously obtain registration for a claim of copyright in the restored work.

      ‘(2) NOTICES OF INTENT SERVED ON A RELIANCE PARTY-

        ‘(A) Notices of the intent to enforce a restored work may be served by the copyright owner of the restored work or by the owner of any exclusive right therein on a reliance party.

        ‘(B) Such notice shall identify the restored work and the use to which the owner objects and shall include an address and telephone number at which the reliance party may contact the owner.

    ‘(f) IMMUNITY FROM WARRANTY AND RELATED LIABILITY- An individual who warranted, promised, or guaranteed that a work that such individual created did not violate 1 of the exclusive rights granted in section 106, shall not be liable for legal, equitable, arbitral, or administrative relief if the warranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section.

    ‘(g) DEFINITIONS- For purposes of this section and section 109(a):

      ‘(1) The term ‘date of adherence’ means the earlier of the dates upon which a foreign country that is not a member of the Berne Union or the World Trade Organization, as of the date of the enactment of the General Agreement on Tariffs and Trade Intellectual Property Act of 1994, becomes a member of the Berne Union or the World Trade Organization.

      ‘(2) The term ‘date of restoration’ of a restored copyright means--

        ‘(A) the date the Agreement on Trade-Related Aspects of Intellectual Property of the General Agreement on Tariffs and Trade becomes effective with respect to the United States, if the work is a restored work on such date; or

        ‘(B) the date of adherence.

      ‘(3) The term ‘eligible country’ means a country, other than the United States, which, on the date that copyright is restored under the provisions of this section, has joined the World Trade Organization or adhered to the Berne Convention for the Protection of Literary and Artistic Works.

      ‘(4) The term ‘reliance party’ means any person who, prior to the date the Agreement on Trade-Related Aspects of Intellectual Property of the General Agreement on Tariffs and Trade becomes effective with respect to the United States, or who, prior to the date of adherence of a source country which became an eligible country after the date of the enactment of such Act--

        ‘(A) engaged in acts which would have violated section 106 if the restored work had been subject to copyright protection, and who, after the date the Agreement on Trade-Related Aspects of Intellectual Property of the General Agreement on Tariffs and Trade becomes effective with respect to the United States, or after the date of adherence, continued to engage in such acts; or

        ‘(B) made substantial monetary investments in a creation of a work which incorporates material portions of a restored work.

      ‘(5) The term ‘restored work’ means an original work of authorship that--

        ‘(A) is protected under subsection (a);

        ‘(B) is not in the public domain in its source country;

        ‘(C) is in the public domain in the United States due to--

          ‘(i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirement; or

          ‘(ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; and

        ‘(D) has not less than 1 author who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country but not published in the United States during the 30-day period following publication in such eligible country.

      ‘(6) The term ‘source country’ of a restored work means--

        ‘(A) a country other than the United States;

        ‘(B) in the case of an unpublished work--

          ‘(i) the eligible country in which the author is a national or domiciliary, or, if a restored work has more than 1 author, the majority of foreign authors are nationals or domiciliaries of such eligible countries; or

          ‘(ii) if the majority of authors are not foreign, the source country shall be the country, other than the United States, which has the most significant contacts with the work; and

        ‘(C) in the case of a published work, the eligible country in which the work is first published, or if the restored work is published on the same day in 2 or more eligible countries, the source country shall be the country, other than the United States, which has the most significant contacts with the work.’.

    (b) LIMITATION- Section 109(a) of title 17, United States Code, is amended by adding at the end the following:

    ‘(e) the sale or other disposition without the authorization of the owner of a restored work of copies or phonorecords manufactured before the date of restoration of works in which copyright has been restored under section 104A may be sold or otherwise disposed of only during the period specified in section 104A(d)(3), and after such period, only as part of a sale or disposition of not more than 1 copy or phonorecord at a time.’.