Text: H.R.2281 — 105th Congress (1997-1998)All Information (Except Text)

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Public Law No: 105-304 (10/28/1998)

 
[105th Congress Public Law 304]
[From the U.S. Government Printing Office]


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[DOCID: f:publ304.105]


[[Page 2859]]

                    DIGITAL MILLENNIUM COPYRIGHT ACT

[[Page 112 STAT. 2860]]

Public Law 105-304
105th Congress

                                 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. <<NOTE: Oct. 28, 
                         1998 -  [H.R. 2281]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress <<NOTE: Digital Millennium 
Copyright Act.>> assembled,

SECTION 1. <<NOTE: 17 USC 101 note.>> SHORT TITLE.

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

SEC. 2. TABLE OF CONTENTS.

Sec. 1. Short title.
Sec. 2. Table of contents.

                  TITLE I--WIPO TREATIES IMPLEMENTATION

Sec. 101. Short title.
Sec. 102. Technical amendments.
Sec. 103. Copyright protection systems and copyright management 
           information.
Sec. 104. Evaluation of impact of copyright law and amendments on 
           electronic 
           commerce and technological development.
Sec. 105. Effective date.

      TITLE II--ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

Sec. 201. Short title.
Sec. 202. Limitations on liability for copyright infringement.
Sec. 203. Effective date.

      TITLE III--COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

Sec. 301. Short title.
Sec. 302. Limitations on exclusive rights; computer programs.

                   TITLE IV--MISCELLANEOUS PROVISIONS

Sec. 401. Provisions Relating to the Commissioner of Patents and 
           Trademarks and the Register of Copyrights.
Sec. 402. Ephemeral recordings.
Sec. 403. Limitations on exclusive rights; distance education.
Sec. 404. Exemption for libraries and archives.
Sec. 405. Scope of exclusive rights in sound recordings; ephemeral 
           recordings.
Sec. 406. Assumption of contractual obligations related to transfers of 
           rights in 
           motion pictures.
Sec. 407. Effective date.

             TITLE V--PROTECTION OF CERTAIN ORIGINAL DESIGNS

Sec. 501. Short title.
Sec. 502. Protection of certain original designs.
Sec. 503. Conforming amendments.
Sec. 504. Joint study of the effect of this title.
Sec. 505. Effective date.

[[Page 112 STAT. 2861]]

  TITLE I--WIPO <<NOTE: WIPO Copyright and Performances and Phonograms 
    Treaties Implementation Act of 1998. 17 USC 101 note.>> 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. 102. TECHNICAL AMENDMENTS.

    (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:

[[Page 112 STAT. 2862]]

            ``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

[[Page 112 STAT. 2863]]

                    ``(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''.

SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT MANAGEMENT 
            INFORMATION.

    (a) In General.--Title 17, United States Code, is amended by adding 
at the end the following new chapter:

        ``CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS

``Sec.
``1201. Circumvention of copyright protection systems.
``1202. Integrity of copyright management information.
``1203. Civil remedies.
``1204. Criminal offenses and penalties.
``1205. Savings clause.

``Sec. 1201. Circumvention of copyright protection systems

    ``(a) Violations Regarding Circumvention of Technological 
Measures.--(1)(A) No person shall circumvent a technological measure 
that effectively controls access to a work protected

[[Page 112 STAT. 2864]]

under this title. <<NOTE: Effective date.>> The prohibition contained in 
the preceding sentence shall take effect at the end of the 2-year period 
beginning on the date of the enactment of this chapter.

    ``(B) The prohibition contained in subparagraph (A) shall not apply 
to persons who are users of a copyrighted work which is in a particular 
class of works, if such persons are, or are likely to be in the 
succeeding 3-year period, adversely affected by virtue of such 
prohibition in their ability to make noninfringing uses of that 
particular class of works under this title, as determined under 
subparagraph (C).
    ``(C) <<NOTE: Reports. Regulations.>> During the 2-year period 
described in subparagraph (A), and during each succeeding 3-year period, 
the Librarian of Congress, upon the recommendation of the Register of 
Copyrights, who shall consult with the Assistant Secretary for 
Communications and Information of the Department of Commerce and report 
and comment on his or her views in making such recommendation, shall 
make the determination in a rulemaking proceeding on the record for 
purposes of subparagraph (B) of whether persons who are users of a 
copyrighted work are, or are likely to be in the succeeding 3-year 
period, adversely affected by the prohibition under subparagraph (A) in 
their ability to make noninfringing uses under this title of a 
particular class of copyrighted works. In conducting such rulemaking, 
the Librarian shall examine--
            ``(i) the availability for use of copyrighted works;
            ``(ii) the availability for use of works for nonprofit 
        archival, preservation, and educational purposes;
            ``(iii) the impact that the prohibition on the circumvention 
        of technological measures applied to copyrighted works has on 
        criticism, comment, news reporting, teaching, scholarship, or 
        research;
            ``(iv) the effect of circumvention of technological measures 
        on the market for or value of copyrighted works; and
            ``(v) such other factors as the Librarian considers 
        appropriate.

    ``(D) <<NOTE: Publication.>> The Librarian shall publish any class 
of copyrighted works for which the Librarian has determined, pursuant to 
the rulemaking conducted under subparagraph (C), that noninfringing uses 
by persons who are users of a copyrighted work are, or are likely to be, 
adversely affected, and the prohibition contained in subparagraph (A) 
shall not apply to such users with respect to such class of works for 
the ensuing 3-year period.

    ``(E) Neither the exception under subparagraph (B) from the 
applicability of the prohibition contained in subparagraph (A), nor any 
determination made in a rulemaking conducted under subparagraph (C), may 
be used as a defense in any action to enforce any provision of this 
title other than this paragraph.
    ``(2) No person shall manufacture, import, offer to the public, 
provide, or otherwise traffic in any technology, product, service, 
device, component, or part thereof, that--
            ``(A) is primarily designed or produced for the purpose of 
        circumventing a technological measure that effectively controls 
        access to a work protected under this title;
            ``(B) has only limited commercially significant purpose or 
        use other than to circumvent a technological measure that 
        effectively controls access to a work protected under this 
        title; or

[[Page 112 STAT. 2865]]

            ``(C) is marketed by that person or another acting in 
        concert with that person with that person's knowledge for use in 
        circumventing a technological measure that effectively controls 
        access to a work protected under this title.

    ``(3) As used in this subsection--
            ``(A) to `circumvent a technological measure' means to 
        descramble a scrambled work, to decrypt an encrypted work, or 
        otherwise to avoid, bypass, remove, deactivate, or impair a 
        technological measure, without the authority of the copyright 
        owner; and
            ``(B) a technological measure `effectively controls access 
        to a work' if the measure, in the ordinary course of its 
        operation, requires the application of information, or a process 
        or a treatment, with the authority of the copyright owner, to 
        gain access to the work.

    ``(b) Additional Violations.--(1) No person shall manufacture, 
import, offer to the public, provide, or otherwise traffic in any 
technology, product, service, device, component, or part thereof, that--
            ``(A) is primarily designed or produced for the purpose of 
        circumventing protection afforded by a technological measure 
        that effectively protects a right of a copyright owner under 
        this title in a work or a portion thereof;
            ``(B) has only limited commercially significant purpose or 
        use other than to circumvent protection afforded by a 
        technological measure that effectively protects a right of a 
        copyright owner under this title in a work or a portion thereof; 
        or
            ``(C) is marketed by that person or another acting in 
        concert with that person with that person's knowledge for use in 
        circumventing protection afforded by a technological measure 
        that effectively protects a right of a copyright owner under 
        this title in a work or a portion thereof.

    ``(2) As used in this subsection--
            ``(A) to `circumvent protection afforded by a technological 
        measure' means avoiding, bypassing, removing, deactivating, or 
        otherwise impairing a technological measure; and
            ``(B) a technological measure `effectively protects a right 
        of a copyright owner under this title' if the measure, in the 
        ordinary course of its operation, prevents, restricts, or 
        otherwise limits the exercise of a right of a copyright owner 
        under this title.

    ``(c) Other Rights, Etc., Not Affected.--(1) Nothing in this section 
shall affect rights, remedies, limitations, or defenses to copyright 
infringement, including fair use, under this title.
    ``(2) Nothing in this section shall enlarge or diminish vicarious or 
contributory liability for copyright infringement in connection with any 
technology, product, service, device, component, or part thereof.
    ``(3) Nothing in this section shall require that the design of, or 
design and selection of parts and components for, a consumer 
electronics, telecommunications, or computing product provide for a 
response to any particular technological measure, so long as such part 
or component, or the product in which such part or component is 
integrated, does not otherwise fall within the prohibitions of 
subsection (a)(2) or (b)(1).

[[Page 112 STAT. 2866]]

    ``(4) Nothing in this section shall enlarge or diminish any rights 
of free speech or the press for activities using consumer electronics, 
telecommunications, or computing products.
    ``(d) Exemption for Nonprofit Libraries, Archives, and Educational 
Institutions.--(1) A nonprofit library, archives, or educational 
institution which gains access to a commercially exploited copyrighted 
work solely in order to make a good faith determination of whether to 
acquire a copy of that work for the sole purpose of engaging in conduct 
permitted under this title shall not be in violation of subsection 
(a)(1)(A). A copy of a work to which access has been gained under this 
paragraph--
            ``(A) may not be retained longer than necessary to make such 
        good faith determination; and
            ``(B) may not be used for any other purpose.

    ``(2) The exemption made available under paragraph (1) shall only 
apply with respect to a work when an identical copy of that work is not 
reasonably available in another form.
    ``(3) A nonprofit library, archives, or educational institution that 
willfully for the purpose of commercial advantage or financial gain 
violates paragraph (1)--
            ``(A) shall, for the first offense, be subject to the civil 
        remedies under section 1203; and
            ``(B) shall, for repeated or subsequent offenses, in 
        addition to the civil remedies under section 1203, forfeit the 
        exemption provided under paragraph (1).

    ``(4) This subsection may not be used as a defense to a claim under 
subsection (a)(2) or (b), nor may this subsection permit a nonprofit 
library, archives, or educational institution to manufacture, import, 
offer to the public, provide, or otherwise traffic in any technology, 
product, service, component, or part thereof, which circumvents a 
technological measure.
    ``(5) In order for a library or archives to qualify for the 
exemption under this subsection, the collections of that library or 
archives shall be--
            ``(A) open to the public; or
            ``(B) available not only to researchers affiliated with the 
        library or archives or with the institution of which it is a 
        part, but also to other persons doing research in a specialized 
        field.

    ``(e) Law Enforcement, Intelligence, and Other Government 
Activities.--This section does not prohibit any lawfully authorized 
investigative, protective, information security, or intelligence 
activity of an officer, agent, or employee of the United States, a 
State, or a political subdivision of a State, or a person acting 
pursuant to a contract with the United States, a State, or a political 
subdivision of a State. For purposes of this subsection, the term 
`information security' means activities carried out in order to identify 
and address the vulnerabilities of a government computer, computer 
system, or computer network.
    ``(f ) Reverse Engineering.--(1) Notwithstanding the provisions of 
subsection (a)(1)(A), a person who has lawfully obtained the right to 
use a copy of a computer program may circumvent a technological measure 
that effectively controls access to a particular portion of that program 
for the sole purpose of identifying and analyzing those elements of the 
program that are necessary to achieve interoperability of an 
independently created computer program with other programs, and that 
have not previously been

[[Page 112 STAT. 2867]]

readily available to the person engaging in the circumvention, to the 
extent any such acts of identification and analysis do not constitute 
infringement under this title.
    ``(2) Notwithstanding the provisions of subsections (a)(2) and (b), 
a person may develop and employ technological means to circumvent a 
technological measure, or to circumvent protection afforded by a 
technological measure, in order to enable the identification and 
analysis under paragraph (1), or for the purpose of enabling 
interoperability of an independently created computer program with other 
programs, if such means are necessary to achieve such interoperability, 
to the extent that doing so does not constitute infringement under this 
title.
    ``(3) The information acquired through the acts permitted under 
paragraph (1), and the means permitted under paragraph (2), may be made 
available to others if the person referred to in paragraph (1) or (2), 
as the case may be, provides such information or means solely for the 
purpose of enabling interoperability of an independently created 
computer program with other programs, and to the extent that doing so 
does not constitute infringement under this title or violate applicable 
law other than this section.
    ``(4) For purposes of this subsection, the term `interoperability' 
means the ability of computer programs to exchange information, and of 
such programs mutually to use the information which has been exchanged.
    ``(g) Encryption Research.--
            ``(1) Definitions.--For purposes of this subsection--
                    ``(A) the term `encryption research' means 
                activities necessary to identify and analyze flaws and 
                vulnerabilities of encryption technologies applied to 
                copyrighted works, if these activities are conducted to 
                advance the state of knowledge in the field of 
                encryption technology or to assist in the development of 
                encryption products; and
                    ``(B) the term `encryption technology' means the 
                scrambling and descrambling of information using 
                mathematical formulas or algorithms.
            ``(2) Permissible acts of encryption research.--
        Notwithstanding the provisions of subsection (a)(1)(A), it is 
        not a violation of that subsection for a person to circumvent a 
        technological measure as applied to a copy, phonorecord, 
        performance, or display of a published work in the course of an 
        act of good faith encryption research if--
                    ``(A) the person lawfully obtained the encrypted 
                copy, phonorecord, performance, or display of the 
                published work;
                    ``(B) such act is necessary to conduct such 
                encryption research;
                    ``(C) the person made a good faith effort to obtain 
                authorization before the circumvention; and
                    ``(D) such act does not constitute infringement 
                under this title or a violation of applicable law other 
                than this section, including section 1030 of title 18 
                and those provisions of title 18 amended by the Computer 
                Fraud and Abuse Act of 1986.
            ``(3) Factors in determining exemption.--In determining 
        whether a person qualifies for the exemption under paragraph 
        (2), the factors to be considered shall include--
                    ``(A) whether the information derived from the 
                encryption research was disseminated, and if so, whether

[[Page 112 STAT. 2868]]

                it was disseminated in a manner reasonably calculated to 
                advance the state of knowledge or development of 
                encryption technology, versus whether it was 
                disseminated in a manner that facilitates infringement 
                under this title or a violation of applicable law other 
                than this section, including a violation of privacy or 
                breach of security;
                    ``(B) whether the person is engaged in a legitimate 
                course of study, is employed, or is appropriately 
                trained or experienced, in the field of encryption 
                technology; and
                    ``(C) whether the person provides the copyright 
                owner of the work to which the technological measure is 
                applied with notice of the findings and documentation of 
                the research, and the time when such notice is provided.
            ``(4) Use of technological means for research activities.--
        Notwithstanding the provisions of subsection (a)(2), it is not a 
        violation of that subsection for a person to--
                    ``(A) develop and employ technological means to 
                circumvent a technological measure for the sole purpose 
                of that person performing the acts of good faith 
                encryption research described in paragraph (2); and
                    ``(B) provide the technological means to another 
                person with whom he or she is working collaboratively 
                for the purpose of conducting the acts of good faith 
                encryption research described in paragraph (2) or for 
                the purpose of having that other person verify his or 
                her acts of good faith encryption research described in 
                paragraph (2).
            ``(5) Report <<NOTE: Deadline.>> to congress.--Not later 
        than 1 year after the date of the enactment of this chapter, the 
        Register of Copyrights and the Assistant Secretary for 
        Communications and Information of the Department of Commerce 
        shall jointly report to the Congress on the effect this 
        subsection has had on--
                    ``(A) encryption research and the development of 
                encryption technology;
                    ``(B) the adequacy and effectiveness of 
                technological measures designed to protect copyrighted 
                works; and
                    ``(C) protection of copyright owners against the 
                unauthorized access to their encrypted copyrighted 
                works.
        The report shall include legislative recommendations, if any.

    ``(h) Exceptions Regarding Minors.--In applying subsection (a) to a 
component or part, the court may consider the necessity for its intended 
and actual incorporation in a technology, product, service, or device, 
which--
            ``(1) does not itself violate the provisions of this title; 
        and
            ``(2) has the sole purpose to prevent the access of minors 
        to material on the Internet.

    ``(i) Protection of Personally Identifying Information.--
            (1) Circumvention permitted.--Notwithstanding the provisions 
        of subsection (a)(1)(A), it is not a violation of that 
        subsection for a person to circumvent a technological measure 
        that effectively controls access to a work protected under this 
        title, if--
                    ``(A) the technological measure, or the work it 
                protects, contains the capability of collecting or 
                disseminating personally identifying information 
                reflecting the online activities of a natural person who 
                seeks to gain access to the work protected;

[[Page 112 STAT. 2869]]

                    ``(B) in the normal course of its operation, the 
                technological measure, or the work it protects, collects 
                or disseminates personally identifying information about 
                the person who seeks to gain access to the work 
                protected, without providing conspicuous notice of such 
                collection or dissemination to such person, and without 
                providing such person with the capability to prevent or 
                restrict such collection or dissemination;
                    ``(C) the act of circumvention has the sole effect 
                of identifying and disabling the capability described in 
                subparagraph (A), and has no other effect on the ability 
                of any person to gain access to any work; and
                    ``(D) the act of circumvention is carried out solely 
                for the purpose of preventing the collection or 
                dissemination of personally identifying information 
                about a natural person who seeks to gain access to the 
                work protected, and is not in violation of any other 
                law.
            ``(2) Inapplicability to certain technological 
        measures.--This subsection does not apply to a technological 
        measure, or a work it protects, that does not collect or 
        disseminate personally identifying information and that is 
        disclosed to a user as not having or using such capability.

    ``( j) Security Testing.--
            ``(1) Definition.--For purposes of this subsection, the term 
        `security testing' means accessing a computer, computer system, 
        or computer network, solely for the purpose of good faith 
        testing, investigating, or correcting, a security flaw or 
        vulnerability, with the authorization of the owner or operator 
        of such computer, computer system, or computer network.
            ``(2) Permissible acts of security testing.--Notwithstanding 
        the provisions of subsection (a)(1)(A), it is not a violation of 
        that subsection for a person to engage in an act of security 
        testing, if such act does not constitute infringement under this 
        title or a violation of applicable law other than this section, 
        including section 1030 of title 18 and those provisions of title 
        18 amended by the Computer Fraud and Abuse Act of 1986.
            ``(3) Factors in determining exemption.--In determining 
        whether a person qualifies for the exemption under paragraph 
        (2), the factors to be considered shall include--
                    ``(A) whether the information derived from the 
                security testing was used solely to promote the security 
                of the owner or operator of such computer, computer 
                system or computer network, or shared directly with the 
                developer of such computer, computer system, or computer 
                network; and
                    ``(B) whether the information derived from the 
                security testing was used or maintained in a manner that 
                does not facilitate infringement under this title or a 
                violation of applicable law other than this section, 
                including a violation of privacy or breach of security.
            ``(4) Use of technological means for security testing.--
        Notwithstanding the provisions of subsection (a)(2), it is not a 
        violation of that subsection for a person to develop, produce, 
        distribute or employ technological means for the sole purpose of 
        performing the acts of security testing described

[[Page 112 STAT. 2870]]

        in subsection (2), provided such technological means does not 
        otherwise violate section (a)(2).

    ``(k) Certain Analog Devices and Certain Technological Measures.--
            ``(1) Certain analog devices.--
                    ``(A) <<NOTE: Effective date.>> Effective 18 months 
                after the date of the enactment of this chapter, no 
                person shall manufacture, import, offer to the public, 
                provide or otherwise traffic in any--
                          ``(i) VHS format analog video cassette 
                      recorder unless such recorder conforms to the 
                      automatic gain control copy control technology;
                          ``(ii) 8mm format analog video cassette 
                      camcorder unless such camcorder conforms to the 
                      automatic gain control technology;
                          ``(iii) Beta format analog video cassette 
                      recorder, unless such recorder conforms to the 
                      automatic gain control copy control technology, 
                      except that this requirement shall not apply until 
                      there are 1,000 Beta format analog video cassette 
                      recorders sold in the United States in any one 
                      calendar year after the date of the enactment of 
                      this chapter;
                          ``(iv) 8mm format analog video cassette 
                      recorder that is not an analog video cassette 
                      camcorder, unless such recorder conforms to the 
                      automatic gain control copy control technology, 
                      except that this requirement shall not apply until 
                      there are 20,000 such recorders sold in the United 
                      States in any one calendar year after the date of 
                      the enactment of this chapter; or
                          ``(v) analog video cassette recorder that 
                      records using an NTSC format video input and that 
                      is not otherwise covered under clauses (i) through 
                      (iv), unless such device conforms to the automatic 
                      gain control copy control technology.
                    ``(B) <<NOTE: Effective date.>> Effective on the 
                date of the enactment of this chapter, no person shall 
                manufacture, import, offer to the public, provide or 
                otherwise traffic in--
                          ``(i) any VHS format analog video cassette 
                      recorder or any 8mm format analog video cassette 
                      recorder if the design of the model of such 
                      recorder has been modified after such date of 
                      enactment so that a model of recorder that 
                      previously conformed to the automatic gain control 
                      copy control technology no longer conforms to such 
                      technology; or
                          ``(ii) any VHS format analog video cassette 
                      recorder, or any 8mm format analog video cassette 
                      recorder that is not an 8mm analog video cassette 
                      camcorder, if the design of the model of such 
                      recorder has been modified after such date of 
                      enactment so that a model of recorder that 
                      previously conformed to the four-line colorstripe 
                      copy control technology no longer conforms to such 
                      technology.
                Manufacturers that have not previously manufactured or 
                sold a VHS format analog video cassette recorder, or an 
                8mm format analog cassette recorder, shall be required 
                to conform to the four-line colorstripe copy control 
                technology in the initial model of any such recorder 
                manufactured after the date of the enactment of this 
                chapter,

[[Page 112 STAT. 2871]]

                and thereafter to continue conforming to the four-line 
                colorstripe copy control technology. For purposes of 
                this subparagraph, an analog video cassette recorder 
                `conforms to' the four-line colorstripe copy control 
                technology if it records a signal that, when played back 
                by the playback function of that recorder in the normal 
                viewing mode, exhibits, on a reference display device, a 
                display containing distracting visible lines through 
                portions of the viewable picture.
            ``(2) Certain encoding restrictions.--No person shall apply 
        the automatic gain control copy control technology or 
        colorstripe copy control technology to prevent or limit consumer 
        copying except such copying--
                    ``(A) of a single transmission, or specified group 
                of transmissions, of live events or of audiovisual works 
                for which a member of the public has exercised choice in 
                selecting the transmissions, including the content of 
                the transmissions or the time of receipt of such 
                transmissions, or both, and as to which such member is 
                charged a separate fee for each such transmission or 
                specified group of transmissions;
                    ``(B) from a copy of a transmission of a live event 
                or an audiovisual work if such transmission is provided 
                by a channel or service where payment is made by a 
                member of the public for such channel or service in the 
                form of a subscription fee that entitles the member of 
                the public to receive all of the programming contained 
                in such channel or service;
                    ``(C) from a physical medium containing one or more 
                prerecorded audiovisual works; or
                    ``(D) from a copy of a transmission described in 
                subparagraph (A) or from a copy made from a physical 
                medium described in subparagraph (C).
        In the event that a transmission meets both the conditions set 
        forth in subparagraph (A) and those set forth in subparagraph 
        (B), the transmission shall be treated as a transmission 
        described in subparagraph (A).
            ``(3) Inapplicability.--This subsection shall not--
                    ``(A) require any analog video cassette camcorder to 
                conform to the automatic gain control copy control 
                technology with respect to any video signal received 
                through a camera lens;
                    ``(B) apply to the manufacture, importation, offer 
                for sale, provision of, or other trafficking in, any 
                professional analog video cassette recorder; or
                    ``(C) apply to the offer for sale or provision of, 
                or other trafficking in, any previously owned analog 
                video cassette recorder, if such recorder was legally 
                manufactured and sold when new and not subsequently 
                modified in violation of paragraph (1)(B).
            ``(4) Definitions.--For purposes of this subsection:
                    ``(A) An `analog video cassette recorder' means a 
                device that records, or a device that includes a 
                function that records, on electromagnetic tape in an 
                analog format the electronic impulses produced by the 
                video and audio portions of a television program, motion 
                picture, or other form of audiovisual work.

[[Page 112 STAT. 2872]]

                    ``(B) An `analog video cassette camcorder' means an 
                analog video cassette recorder that contains a recording 
                function that operates through a camera lens and through 
                a video input that may be connected with a television or 
                other video playback device.
                    ``(C) An analog video cassette recorder `conforms' 
                to the automatic gain control copy control technology if 
                it--
                          ``(i) detects one or more of the elements of 
                      such technology and does not record the motion 
                      picture or transmission protected by such 
                      technology; or
                          ``(ii) records a signal that, when played 
                      back, exhibits a meaningfully distorted or 
                      degraded display.
                    ``(D) The term `professional analog video cassette 
                recorder' means an analog video cassette recorder that 
                is designed, manufactured, marketed, and intended for 
                use by a person who regularly employs such a device for 
                a lawful business or industrial use, including making, 
                performing, displaying, distributing, or transmitting 
                copies of motion pictures on a commercial scale.
                    ``(E) The terms `VHS format', `8mm format', `Beta 
                format', `automatic gain control copy control 
                technology', `colorstripe copy control technology', 
                `four-line version of the colorstripe copy control 
                technology', and `NTSC' have the meanings that are 
                commonly understood in the consumer electronics and 
                motion picture industries as of the date of the 
                enactment of this chapter.
            ``(5) Violations.--Any violation of paragraph (1) of this 
        subsection shall be treated as a violation of subsection (b)(1) 
        of this section. Any violation of paragraph (2) of this 
        subsection shall be deemed an `act of circumvention' for the 
        purposes of section 1203(c)(3)(A) of this chapter.

``Sec. 1202. Integrity of copyright management information

    ``(a) False Copyright Management Information.--No person shall 
knowingly and with the intent to induce, enable, facilitate, or conceal 
infringement--
            ``(1) provide copyright management information that is 
        false, or
            ``(2) distribute or import for distribution copyright 
        management information that is false.

    ``(b) Removal or Alteration of Copyright Management Information.--No 
person shall, without the authority of the copyright owner or the law--
            ``(1) intentionally remove or alter any copyright management 
        information,
            ``(2) distribute or import for distribution copyright 
        management information knowing that the copyright management 
        information has been removed or altered without authority of the 
        copyright owner or the law, or
            ``(3) distribute, import for distribution, or publicly 
        perform works, copies of works, or phonorecords, knowing that 
        copyright management information has been removed or altered 
        without authority of the copyright owner or the law,

knowing, or, with respect to civil remedies under section 1203, having 
reasonable grounds to know, that it will induce, enable, facilitate, or 
conceal an infringement of any right under this title.

[[Page 112 STAT. 2873]]

    ``(c) Definition.--As used in this section, the term `copyright 
management information' means any of the following information conveyed 
in connection with copies or phonorecords of a work or performances or 
displays of a work, including in digital form, except that such term 
does not include any personally identifying information about a user of 
a work or of a copy, phonorecord, performance, or display of a work:
            ``(1) The title and other information identifying the work, 
        including the information set forth on a notice of copyright.
            ``(2) The name of, and other identifying information about, 
        the author of a work.
            ``(3) The name of, and other identifying information about, 
        the copyright owner of the work, including the information set 
        forth in a notice of copyright.
            ``(4) With the exception of public performances of works by 
        radio and television broadcast stations, the name of, and other 
        identifying information about, a performer whose performance is 
        fixed in a work other than an audiovisual work.
            ``(5) With the exception of public performances of works by 
        radio and television broadcast stations, in the case of an 
        audiovisual work, the name of, and other identifying information 
        about, a writer, performer, or director who is credited in the 
        audiovisual work.
            ``(6) Terms and conditions for use of the work.
            ``(7) Identifying numbers or symbols referring to such 
        information or links to such information.
            ``(8) Such other information as the Register of Copyrights 
        may prescribe by regulation, except that the Register of 
        Copyrights may not require the provision of any information 
        concerning the user of a copyrighted work.

    ``(d) Law Enforcement, Intelligence, and Other Government 
Activities.--This section does not prohibit any lawfully authorized 
investigative, protective, information security, or intelligence 
activity of an officer, agent, or employee of the United States, a 
State, or a political subdivision of a State, or a person acting 
pursuant to a contract with the United States, a State, or a political 
subdivision of a State. For purposes of this subsection, the term 
`information security' means activities carried out in order to identify 
and address the vulnerabilities of a government computer, computer 
system, or computer network.
    ``(e) Limitations on Liability.--
            ``(1) Analog transmissions.--In the case of an analog 
        transmission, a person who is making transmissions in its 
        capacity as a broadcast station, or as a cable system, or 
        someone who provides programming to such station or system, 
        shall not be liable for a violation of subsection (b) if--
                    ``(A) avoiding the activity that constitutes such 
                violation is not technically feasible or would create an 
                undue financial hardship on such person; and
                    ``(B) such person did not intend, by engaging in 
                such activity, to induce, enable, facilitate, or conceal 
                infringement of a right under this title.
            ``(2) Digital transmissions.--
                    ``(A) If a digital transmission standard for the 
                placement of copyright management information for a 
                category of works is set in a voluntary, consensus 
                standard-setting process involving a representative 
                cross-section of broadcast

[[Page 112 STAT. 2874]]

                stations or cable systems and copyright owners of a 
                category of works that are intended for public 
                performance by such stations or systems, a person 
                identified in paragraph (1) shall not be liable for a 
                violation of subsection (b) with respect to the 
                particular copyright management information addressed by 
                such standard if--
                          ``(i) the placement of such information by 
                      someone other than such person is not in 
                      accordance with such standard; and
                          ``(ii) the activity that constitutes such 
                      violation is not intended to induce, enable, 
                      facilitate, or conceal infringement of a right 
                      under this title.
                    ``(B) Until a digital transmission standard has been 
                set pursuant to subparagraph (A) with respect to the 
                placement of copyright management information for a 
                category or works, a person identified in paragraph (1) 
                shall not be liable for a violation of subsection (b) 
                with respect to such copyright management information, 
                if the activity that constitutes such violation is not 
                intended to induce, enable, facilitate, or conceal 
                infringement of a right under this title, and if--
                          ``(i) the transmission of such information by 
                      such person would result in a perceptible visual 
                      or aural degradation of the digital signal; or
                          ``(ii) the transmission of such information by 
                      such person would conflict with--
                                    ``(I) an applicable government 
                                regulation 
                                relating to transmission of information 
                                in a digital signal;
                                    ``(II) an applicable industry-wide 
                                standard relating to the transmission of 
                                information in a digital signal that was 
                                adopted by a voluntary consensus 
                                standards body prior to the effective 
                                date of this chapter; or
                                    ``(III) an applicable industry-wide 
                                standard relating to the transmission of 
                                information in a digital signal that was 
                                adopted in a voluntary, consensus 
                                standards-setting process open to 
                                participation by a representative cross-
                                section of broadcast stations or cable 
                                systems and copyright owners of a 
                                category of works that are intended for 
                                public performance by such stations or 
                                systems.
            ``(3) Definitions.--As used in this subsection--
                    ``(A) the term `broadcast station' has the meaning 
                given that term in section 3 of the Communications Act 
                of 1934 (47 U.S.C. 153); and
                    ``(B) the term `cable system' has the meaning given 
                that term in section 602 of the Communications Act of 
                1934 (47 U.S.C. 522).

``Sec. 1203. Civil remedies

    ``(a) Civil Actions.--Any person injured by a violation of 
section 1201 or 1202 may bring a civil action in an appropriate United 
States district court for such violation.
    ``(b) Powers of the Court.--In an action brought under 
subsection (a), the court--

[[Page 112 STAT. 2875]]

            ``(1) may grant temporary and permanent injunctions on such 
        terms as it deems reasonable to prevent or restrain a violation, 
        but in no event shall impose a prior restraint on free speech or 
        the press protected under the 1st amendment to the Constitution;
            ``(2) at any time while an action is pending, may order the 
        impounding, on such terms as it deems reasonable, of any device 
        or product that is in the custody or control of the alleged 
        violator and that the court has reasonable cause to believe was 
        involved in a violation;
            ``(3) may award damages under subsection (c);
            ``(4) in its discretion may allow the recovery of costs by 
        or against any party other than the United States or an officer 
        thereof;
            ``(5) in its discretion may award reasonable attorney's fees 
        to the prevailing party; and
            ``(6) may, as part of a final judgment or decree finding a 
        violation, order the remedial modification or the destruction of 
        any device or product involved in the violation that is in the 
        custody or control of the violator or has been impounded under 
        paragraph (2).

    ``(c) Award of Damages.--
            ``(1) In general.--Except as otherwise provided in this 
        title, a person committing a violation of section 1201 or 1202 
        is liable for either--
                    ``(A) the actual damages and any additional profits 
                of the violator, as provided in paragraph (2), or
                    ``(B) statutory damages, as provided in paragraph 
                (3).
            ``(2) Actual damages.--The court shall award to the 
        complaining party the actual damages suffered by the party as a 
        result of the violation, and any profits of the violator that 
        are attributable to the violation and are not taken into account 
        in computing the actual damages, if the complaining party elects 
        such damages at any time before final judgment is entered.
            ``(3) Statutory damages.--(A) At any time before final 
        judgment is entered, a complaining party may elect to recover an 
        award of statutory damages for each violation of section 1201 in 
        the sum of not less than $200 or more than $2,500 per act of 
        circumvention, device, product, component, offer, or performance 
        of service, as the court considers just.
            ``(B) At any time before final judgment is entered, a 
        complaining party may elect to recover an award of statutory 
        damages for each violation of section 1202 in the sum of not 
        less than $2,500 or more than $25,000.
            ``(4) Repeated violations.--In any case in which the injured 
        party sustains the burden of proving, and the court finds, that 
        a person has violated section 1201 or 1202 within 3 years after 
        a final judgment was entered against the person for another such 
        violation, the court may increase the award of damages up to 
        triple the amount that would otherwise be awarded, as the court 
        considers just.
            ``(5) Innocent violations.--
                    ``(A) In general.--The court in its discretion may 
                reduce or remit the total award of damages in any case 
                in which the violator sustains the burden of proving, 
                and

[[Page 112 STAT. 2876]]

                the court finds, that the violator was not aware and had 
                no reason to believe that its acts constituted a 
                violation.
                    ``(B) Nonprofit library, archives, or educational 
                institutions.--In the case of a nonprofit library, 
                archives, or educational institution, the court shall 
                remit damages in any case in which the library, 
                archives, or educational institution sustains the burden 
                of proving, and the court finds, that the library, 
                archives, or educational institution was not aware and 
                had no reason to believe that its acts constituted a 
                violation.

``Sec. 1204. Criminal offenses and penalties

    ``(a) In General.--Any person who violates section 1201 or 1202 
willfully and for purposes of commercial advantage or private financial 
gain--
            ``(1) shall be fined not more than $500,000 or imprisoned 
        for not more than 5 years, or both, for the first offense; and
            ``(2) shall be fined not more than $1,000,000 or imprisoned 
        for not more than 10 years, or both, for any subsequent offense.

    ``(b) Limitation for Nonprofit Library, Archives, or Educational 
Institution.--Subsection (a) shall not apply to a nonprofit library, 
archives, or educational institution.
    ``(c) Statute of Limitations.--No criminal proceeding shall be 
brought under this section unless such proceeding is commenced within 5 
years after the cause of action arose.

``Sec. 1205. Savings clause

    ``Nothing in this chapter abrogates, diminishes, or weakens the 
provisions of, nor provides any defense or element of mitigation in a 
criminal prosecution or civil action under, any Federal or State law 
that prevents the violation of the privacy of an individual in 
connection with the individual's use of the Internet.''.
    (b) Conforming Amendment.--The table of chapters for title 17, 
United States Code, is amended by adding after the item relating to 
chapter 11 the following:

``12. Copyright Protection and Management Systems................1201''.

SEC. 104. <<NOTE: 17 USC 109 note.>> 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 <<NOTE: Deadline.>> 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),

[[Page 112 STAT. 2877]]

including any legislative recommendations the Register and the Assistant 
Secretary may have.

SEC. 105. <<NOTE: 17 USC 101 note.>> 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 <<NOTE: Online Copyright Infringement Liability 
Limitation Act.>> COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

SEC. 201. <<NOTE: 17 USC 101 note.>> SHORT TITLE.

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

SEC. 202. LIMITATIONS ON LIABILITY FOR COPYRIGHT INFRINGEMENT.

    (a) In General.--Chapter 5 of title 17, United States Code, is 
amended by adding after section 511 the following new section:

``Sec. 512. Limitations on liability relating to material online

    ``(a) Transitory Digital Network Communications.--A service provider 
shall not be liable for monetary relief, or, except as provided in 
subsection ( j), for injunctive or other equitable relief,

[[Page 112 STAT. 2878]]

for infringement of copyright by reason of the provider's transmitting, 
routing, or providing connections for, material through a system or 
network controlled or operated by or for the service provider, or by 
reason of the intermediate and transient storage of that material in the 
course of such transmitting, routing, or providing connections, if--
            ``(1) the transmission of the material was initiated by or 
        at the direction of a person other than the service provider;
            ``(2) the transmission, routing, provision of connections, 
        or storage is carried out through an automatic technical process 
        without selection of the material by the service provider;
            ``(3) the service provider does not select the recipients of 
        the material except as an automatic response to the request of 
        another person;
            ``(4) no copy of the material made by the service provider 
        in the course of such intermediate or transient storage is 
        maintained on the system or network in a manner ordinarily 
        accessible to anyone other than anticipated recipients, and no 
        such copy is maintained on the system or network in a manner 
        ordinarily accessible to such anticipated recipients for a 
        longer period than is reasonably necessary for the transmission, 
        routing, or provision of connections; and
            ``(5) the material is transmitted through the system or 
        network without modification of its content.

    ``(b) System Caching.--
            ``(1) Limitation on liability.--A service provider shall not 
        be liable for monetary relief, or, except as provided in 
        subsection ( j), for injunctive or other equitable relief, for 
        infringement of copyright by reason of the intermediate and 
        temporary storage of material on a system or network controlled 
        or operated by or for the service provider in a case in which--
                    ``(A) the material is made available online by a 
                person other than the service provider;
                    ``(B) the material is transmitted from the person 
                described in subparagraph (A) through the system or 
                network to a person other than the person described in 
                subparagraph (A) at the direction of that other person; 
                and
                    ``(C) the storage is carried out through an 
                automatic technical process for the purpose of making 
                the material available to users of the system or network 
                who, after the material is transmitted as described in 
                subparagraph (B), request access to the material from 
                the person described in subparagraph (A),
        if the conditions set forth in paragraph (2) are met.
            (2) Conditions.--The conditions referred to in paragraph (1) 
        are that--
                    ``(A) the material described in paragraph (1) is 
                transmitted to the subsequent users described in 
                paragraph (1)(C) without modification to its content 
                from the manner in which the material was transmitted 
                from the person described in paragraph (1)(A);
                    ``(B) the service provider described in paragraph 
                (1) complies with rules concerning the refreshing, 
                reloading, or other updating of the material when 
                specified by the person making the material available 
                online in accordance

[[Page 112 STAT. 2879]]

                with a generally accepted industry standard data 
                communications protocol for the system or network 
                through which that person makes the material available, 
                except that this subparagraph applies only if those 
                rules are not used by the person described in paragraph 
                (1)(A) to prevent or unreasonably impair the 
                intermediate storage to which this subsection applies;
                    ``(C) the service provider does not interfere with 
                the ability of technology associated with the material 
                to return to the person described in paragraph (1)(A) 
                the information that would have been available to that 
                person if the material had been obtained by the 
                subsequent users described in paragraph (1)(C) directly 
                from that person, except that this subparagraph applies 
                only if that technology--
                          ``(i) does not significantly interfere with 
                      the performance of the provider's system or 
                      network or with the intermediate storage of the 
                      material;
                          ``(ii) is consistent with generally accepted 
                      industry standard communications protocols; and
                          ``(iii) does not extract information from the 
                      provider's system or network other than the 
                      information that would have been available to the 
                      person described in paragraph (1)(A) if the 
                      subsequent users had gained access to the material 
                      directly from that person;
                    ``(D) if the person described in paragraph (1)(A) 
                has in effect a condition that a person must meet prior 
                to having access to the material, such as a condition 
                based on payment of a fee or provision of a password or 
                other information, the service provider permits access 
                to the stored material in significant part only to users 
                of its system or network that have met those conditions 
                and only in accordance with those conditions; and
                    ``(E) if the person described in paragraph (1)(A) 
                makes that material available online without the 
                authorization of the copyright owner of the material, 
                the service provider responds expeditiously to remove, 
                or disable access to, the material that is claimed to be 
                infringing upon notification of claimed infringement as 
                described in subsection (c)(3), except that this 
                subparagraph applies only if--
                          ``(i) the material has previously been removed 
                      from the originating site or access to it has been 
                      disabled, or a court has ordered that the material 
                      be removed from the originating site or that 
                      access to the material on the originating site be 
                      disabled; and
                          ``(ii) the party giving the notification 
                      includes in the notification a statement 
                      confirming that the 
                      material has been removed from the originating 
                      site or access to it has been disabled or that a 
                      court has ordered that the material be removed 
                      from the originating site or that access to the 
                      material on the originating site be disabled.
            ``(c) Information Residing on Systems or Networks At 
        Direction of Users.--
            ``(1) In general.--A service provider shall not be liable 
        for monetary relief, or, except as provided in subsection ( j), 
        for injunctive or other equitable relief, for infringement of 
        copyright by reason of the storage at the direction of a user of

[[Page 112 STAT. 2880]]

        material that resides on a system or network controlled or 
        operated by or for the service provider, if the service 
        provider--
                    ``(A)(i) does not have actual knowledge that the 
                material or an activity using the material on the system 
                or network is infringing;
                    ``(ii) in the absence of such actual knowledge, is 
                not aware of facts or circumstances from which 
                infringing activity is apparent; or
                    ``(iii) upon obtaining such knowledge or awareness, 
                acts expeditiously to remove, or disable access to, the 
                material;
                    ``(B) does not receive a financial benefit directly 
                attributable to the infringing activity, in a case in 
                which the service provider has the right and ability to 
                control such activity; and
                    ``(C) upon notification of claimed infringement as 
                described in paragraph (3), responds expeditiously to 
                remove, or disable access to, the material that is 
                claimed to be infringing or to be the subject of 
                infringing activity.
            ``(2) Designated agent.--The limitations on liability 
        established in this subsection apply to a service provider only 
        if the service provider has designated an agent to receive 
        notifications of claimed infringement described in paragraph 
        (3), by making available through its service, including on its 
        website in a location accessible to the public, and by providing 
        to the Copyright Office, substantially the following 
        information:
                    ``(A) the name, address, phone number, and 
                electronic mail address of the agent.
                    ``(B) other contact information which the Register 
                of Copyrights may deem appropriate.
        The <<NOTE: Records. Public information.>> Register of 
        Copyrights shall maintain a current directory of agents 
        available to the public for inspection, including through the 
        Internet, in both electronic and hard copy formats, and may 
        require payment of a fee by service providers to cover the costs 
        of maintaining the directory.
            ``(3) Elements of notification.--
                    ``(A) To be effective under this subsection, a 
                notification of claimed infringement must be a written 
                communication provided to the designated agent of a 
                service provider that includes substantially the 
                following:
                          ``(i) A physical or electronic signature of a 
                      person authorized to act on behalf of the owner of 
                      an exclusive right that is allegedly infringed.
                          ``(ii) Identification of the copyrighted work 
                      claimed to have been infringed, or, if multiple 
                      copyrighted works at a single online site are 
                      covered by a single notification, a representative 
                      list of such works at that site.
                          ``(iii) Identification of the material that is 
                      claimed to be infringing or to be the subject of 
                      infringing activity and that is to be removed or 
                      access to which is to be disabled, and information 
                      reasonably sufficient to permit the service 
                      provider to locate the material.
                          ``(iv) Information reasonably sufficient to 
                      permit the service provider to contact the 
                      complaining party, such as an address, telephone 
                      number, and, if available, an electronic mail 
                      address at which the complaining party may be 
                      contacted.

[[Page 112 STAT. 2881]]

                          ``(v) A statement that the complaining party 
                      has a good faith belief that use of the material 
                      in the manner complained of is not authorized by 
                      the copyright owner, its agent, or the law.
                          ``(vi) A statement that the information in the 
                      notification is accurate, and under penalty of 
                      perjury, that the complaining party is authorized 
                      to act on behalf of the owner of an exclusive 
                      right that is allegedly infringed.
                    ``(B)(i) Subject to clause (ii), a notification from 
                a copyright owner or from a person authorized to act on 
                behalf of the copyright owner that fails to comply 
                substantially with the provisions of subparagraph (A) 
                shall not be considered under paragraph (1)(A) in 
                determining whether a service provider has actual 
                knowledge or is aware of facts or circumstances from 
                which infringing activity is apparent.
                    ``(ii) In a case in which the notification that is 
                provided to the service provider's designated agent 
                fails to comply substantially with all the provisions of 
                subparagraph (A) but substantially complies with clauses 
                (ii), (iii), and (iv) of subparagraph (A), clause (i) of 
                this subparagraph applies only if the service provider 
                promptly attempts to contact the person making the 
                notification or takes other reasonable steps to assist 
                in the receipt of notification that substantially 
                complies with all the provisions of subparagraph (A).

    ``(d) Information Location Tools.--A service provider shall not be 
liable for monetary relief, or, except as provided in subsection ( j), 
for injunctive or other equitable relief, for infringement of copyright 
by reason of the provider referring or linking users to an online 
location containing infringing material or infringing activity, by using 
information location tools, including a directory, index, reference, 
pointer, or hypertext link, if the service provider--
            ``(1)(A) does not have actual knowledge that the material or 
        activity is infringing;
            ``(B) in the absence of such actual knowledge, is not aware 
        of facts or circumstances from which infringing activity is 
        apparent; or
            ``(C) upon obtaining such knowledge or awareness, acts 
        expeditiously to remove, or disable access to, the material;
            ``(2) does not receive a financial benefit directly 
        attributable to the infringing activity, in a case in which the 
        service provider has the right and ability to control such 
        activity; and
            ``(3) upon notification of claimed infringement as described 
        in subsection (c)(3), responds expeditiously to remove, or 
        disable access to, the material that is claimed to be infringing 
        or to be the subject of infringing activity, except that, for 
        purposes of this paragraph, the information described in 
        subsection (c)(3)(A)(iii) shall be identification of the 
        reference or link, to material or activity claimed to be 
        infringing, that is to be removed or access to which is to be 
        disabled, and information reasonably sufficient to permit the 
        service provider to locate that reference or link.

    ``(e) Limitation on liability of nonprofit educational 
institutions.--(1) When a public or other nonprofit institution of 
higher education is a service provider, and when a faculty member or 
graduate student who is an employee of such institution

[[Page 112 STAT. 2882]]

is performing a teaching or research function, for the purposes of 
subsections (a) and (b) such faculty member or graduate student shall be 
considered to be a person other than the institution, and for the 
purposes of subsections (c) and (d) such faculty member's or graduate 
student's knowledge or awareness of his or her infringing activities 
shall not be attributed to the institution, if--
            ``(A) such faculty member's or graduate student's infringing 
        activities do not involve the provision of online access to 
        instructional materials that are or were required or 
        recommended, within the preceding 3-year period, for a course 
        taught at the institution by such faculty member or graduate 
        student;
            ``(B) the institution has not, within the preceding 3-year 
        period, received more than two notifications described in 
        subsection (c)(3) of claimed infringement by such faculty member 
        or graduate student, and such notifications of claimed 
        infringement were not actionable under subsection (f ); and
            ``(C) the institution provides to all users of its system or 
        network informational materials that accurately describe, and 
        promote compliance with, the laws of the United States relating 
        to copyright.

    ``(2) Injunctions.--For <<NOTE: Applicability.>> the purposes of 
this subsection, the limitations on injunctive relief contained in 
subsections ( j)(2) and ( j)(3), but not those in ( j)(1), shall apply.

    ``(f ) Misrepresentations.--Any person who knowingly materially 
misrepresents under this section--
            ``(1) that material or activity is infringing, or
            ``(2) that material or activity was removed or disabled by 
        mistake or misidentification,

 shall be liable for any damages, including costs and attorneys' fees, 
incurred by the alleged infringer, by any copyright owner or copyright 
owner's authorized licensee, or by a service provider, who is injured by 
such misrepresentation, as the result of the service provider relying 
upon such misrepresentation in removing or disabling access to the 
material or activity claimed to be infringing, or in replacing the 
removed material or ceasing to disable access to it.
    ``(g) Replacement of Removed or Disabled Material and Limitation on 
Other Liability.--
            ``(1) No liability for taking down generally.--Subject to 
        paragraph (2), a service provider shall not be liable to any 
        person for any claim based on the service provider's good faith 
        disabling of access to, or removal of, material or activity 
        claimed to be infringing or based on facts or circumstances from 
        which infringing activity is apparent, regardless of whether the 
        material or activity is ultimately determined to be infringing.
            ``(2) Exception.--Paragraph (1) shall not apply with respect 
        to material residing at the direction of a subscriber of the 
        service provider on a system or network controlled or operated 
        by or for the service provider that is removed, or to which 
        access is disabled by the service provider, pursuant to a notice 
        provided under subsection (c)(1)(C), unless the service 
        provider--
                    ``(A) takes reasonable steps promptly to notify the 
                subscriber that it has removed or disabled access to the 
                material;

[[Page 112 STAT. 2883]]

                    ``(B) upon receipt of a counter notification 
                described in paragraph (3), promptly provides the person 
                who provided the notification under subsection (c)(1)(C) 
                with a copy of the counter notification, and informs 
                that person that it will replace the removed material or 
                cease disabling access to it in 10 business days; and
                    ``(C) replaces the removed material and ceases 
                disabling access to it not less than 10, nor more than 
                14, business days following receipt of the counter 
                notice, unless its designated agent first receives 
                notice from the person who submitted the notification 
                under subsection (c)(1)(C) that such person has filed an 
                action seeking a court order to restrain the subscriber 
                from engaging in infringing activity relating to the 
                material on the service provider's system or network.
            ``(3) Contents of counter notification.--To be effective 
        under this subsection, a counter notification must be a written 
        communication provided to the service provider's designated 
        agent that includes substantially the following:
                    ``(A) A physical or electronic signature of the 
                subscriber.
                    ``(B) Identification of the material that has been 
                removed or to which access has been disabled and the 
                location at which the material appeared before it was 
                removed or access to it was disabled.
                    ``(C) A statement under penalty of perjury that the 
                subscriber has a good faith belief that the material was 
                removed or disabled as a result of mistake or 
                misidentification of the material to be removed or 
                disabled.
                    ``(D) The subscriber's name, address, and telephone 
                number, and a statement that the subscriber consents to 
                the jurisdiction of Federal District Court for the 
                judicial district in which the address is located, or if 
                the subscriber's address is outside of the United 
                States, for any judicial district in which the service 
                provider may be found, and that the subscriber will 
                accept service of process from the person who provided 
                notification under subsection (c)(1)(C) or an agent of 
                such person.
            ``(4) Limitation on other liability.--A service provider's 
        compliance with paragraph (2) shall not subject the service 
        provider to liability for copyright infringement with respect to 
        the material identified in the notice provided under subsection 
        (c)(1)(C).

    ``(h) Subpoena To Identify Infringer.--
            ``(1) Request.--A copyright owner or a person authorized to 
        act on the owner's behalf may request the clerk of any United 
        States district court to issue a subpoena to a service provider 
        for identification of an alleged infringer in accordance with 
        this subsection.
            ``(2) Contents of request.--The request may be made by 
        filing with the clerk--
                    ``(A) a copy of a notification described in 
                subsection (c)(3)(A);
                    ``(B) a proposed subpoena; and
                    ``(C) a sworn declaration to the effect that the 
                purpose for which the subpoena is sought is to obtain 
                the identity of an alleged infringer and that such 
                information will only

[[Page 112 STAT. 2884]]

                 be used for the purpose of protecting rights under this 
                title.
            ``(3) Contents of subpoena.--The subpoena shall authorize 
        and order the service provider receiving the notification and 
        the subpoena to expeditiously disclose to the copyright owner or 
        person authorized by the copyright owner information sufficient 
        to identify the alleged infringer of the material described in 
        the notification to the extent such information is available to 
        the service provider.
            ``(4) Basis for granting subpoena.--If the notification 
        filed satisfies the provisions of subsection (c)(3)(A), the 
        proposed subpoena is in proper form, and the accompanying 
        declaration is properly executed, the clerk shall expeditiously 
        issue and sign the proposed subpoena and return it to the 
        requester for delivery to the service provider.
            ``(5) Actions of service provider receiving subpoena.--Upon 
        receipt of the issued subpoena, either accompanying or 
        subsequent to the receipt of a notification described in 
        subsection (c)(3)(A), the service provider shall expeditiously 
        disclose to the copyright owner or person authorized by the 
        copyright owner the information required by the subpoena, 
        notwithstanding any other provision of law and regardless of 
        whether the service provider responds to the notification.
            ``(6) Rules applicable to subpoena.--Unless otherwise 
        provided by this section or by applicable rules of the court, 
        the procedure for issuance and delivery of the subpoena, and the 
        remedies for noncompliance with the subpoena, shall be governed 
        to the greatest extent practicable by those provisions of the 
        Federal Rules of Civil Procedure governing the issuance, 
        service, and enforcement of a subpoena duces tecum.

    ``(i) Conditions for Eligibility.--
            ``(1) Accommodation of technology.--The limitations on 
        liability established by this section shall apply to a service 
        provider only if the service provider--
                    ``(A) has adopted and reasonably implemented, and 
                informs subscribers and account holders of the service 
                provider's system or network of, a policy that provides 
                for the termination in appropriate circumstances of 
                subscribers and account holders of the service 
                provider's system or network who are repeat infringers; 
                and
                    ``(B) accommodates and does not interfere with 
                standard technical measures.
            ``(2) Definition.--As used in this subsection, the term 
        `standard technical measures' means technical measures that are 
        used by copyright owners to identify or protect copyrighted 
        works and--
                    ``(A) have been developed pursuant to a broad 
                consensus of copyright owners and service providers in 
                an open, fair, voluntary, multi-industry standards 
                process;
                    ``(B) are available to any person on reasonable and 
                nondiscriminatory terms; and
                    ``(C) do not impose substantial costs on service 
                providers or substantial burdens on their systems or 
                networks.

    ``( j) Injunctions.--The <<NOTE: Applicability.>> following rules 
shall apply in the case of any application for an injunction under 
section 502 against a service provider that is not subject to monetary 
remedies under this section:

[[Page 112 STAT. 2885]]

            ``(1) Scope of relief.--(A) With respect to conduct other 
        than that which qualifies for the limitation on remedies set 
        forth in subsection (a), the court may grant injunctive relief 
        with respect to a service provider only in one or more of the 
        following forms:
                    ``(i) An order restraining the service provider from 
                providing access to infringing material or activity 
                residing at a particular online site on the provider's 
                system or network.
                    ``(ii) An order restraining the service provider 
                from providing access to a subscriber or account holder 
                of the service provider's system or network who is 
                engaging in infringing activity and is identified in the 
                order, by terminating the accounts of the subscriber or 
                account holder that are specified in the order.
                    ``(iii) Such other injunctive relief as the court 
                may consider necessary to prevent or restrain 
                infringement of copyrighted material specified in the 
                order of the court at a particular online location, if 
                such relief is the least burdensome to the service 
                provider among the forms of relief comparably effective 
                for that purpose.
            ``(B) If the service provider qualifies for the limitation 
        on remedies described in subsection (a), the court may only 
        grant injunctive relief in one or both of the following forms:
                    ``(i) An order restraining the service provider from 
                providing access to a subscriber or account holder of 
                the service provider's system or network who is using 
                the provider's service to engage in infringing activity 
                and is identified in the order, by terminating the 
                accounts of the subscriber or account holder that are 
                specified in the order.
                    ``(ii) An order restraining the service provider 
                from providing access, by taking reasonable steps 
                specified in the order to block access, to a specific, 
                identified, online location outside the United States.
            ``(2) Considerations.--The <<NOTE: Courts.>> court, in 
        considering the relevant criteria for injunctive relief under 
        applicable law, shall consider--
                    ``(A) whether such an injunction, either alone or in 
                combination with other such injunctions issued against 
                the same service provider under this subsection, would 
                significantly burden either the provider or the 
                operation of the provider's system or network;
                    ``(B) the magnitude of the harm likely to be 
                suffered by the copyright owner in the digital network 
                environment if steps are not taken to prevent or 
                restrain the infringement;
                    ``(C) whether implementation of such an injunction 
                would be technically feasible and effective, and would 
                not interfere with access to noninfringing material at 
                other online locations; and
                    ``(D) whether other less burdensome and comparably 
                effective means of preventing or restraining access to 
                the infringing material are available.
            ``(3) Notice and Ex Parte Orders.--Injunctive relief under 
        this subsection shall be available only after notice to the 
        service provider and an opportunity for the service provider

[[Page 112 STAT. 2886]]

        to appear are provided, except for orders ensuring the 
        preservation of evidence or other orders having no material 
        adverse effect on the operation of the service provider's 
        communications network.

    ``(k) Definitions.--
            ``(1) Service provider.--(A) As used in subsection (a), the 
        term `service provider' means an entity offering the 
        transmission, routing, or providing of connections for digital 
        online communications, between or among points specified by a 
        user, of material of the user's choosing, without modification 
        to the content of the material as sent or received.
            ``(B) As used in this section, other than subsection (a), 
        the term `service provider' means a provider of online services 
        or network access, or the operator of facilities therefor, and 
        includes an entity described in subparagraph (A).
            ``(2) Monetary relief.--As used in this section, the term 
        `monetary relief' means damages, costs, attorneys' fees, and any 
        other form of monetary payment.

    ``(l) Other Defenses Not Affected.--The failure of a service 
provider's conduct to qualify for limitation of liability under this 
section shall not bear adversely upon the consideration of a defense by 
the service provider that the service provider's conduct is not 
infringing under this title or any other defense.
    ``(m) Protection of Privacy.--Nothing in this section shall be 
construed to condition the applicability of subsections (a) through (d) 
on--
            ``(1) a service provider monitoring its service or 
        affirmatively seeking facts indicating infringing activity, 
        except to the extent consistent with a standard technical 
        measure complying with the provisions of subsection (i); or
            ``(2) a service provider gaining access to, removing, or 
        disabling access to material in cases in which such conduct is 
        prohibited by law.

    ``(n) Construction.--Subsections (a), (b), (c), and (d) describe 
separate and distinct functions for purposes of applying this section. 
Whether a service provider qualifies for the limitation on liability in 
any one of those subsections shall be based solely on the criteria in 
that subsection, and shall not affect a determination of whether that 
service provider qualifies for the limitations on liability under any 
other such subsection.''.
    (b) Conforming Amendment.--The table of sections for chapter 5 of 
title 17, United States Code, is amended by adding at the end the 
following:

``512. Limitations on liability relating to material online.''.

SEC. 203. <<NOTE: 17 USC 512 note.>> EFFECTIVE DATE.

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

 TITLE III--COMPUTER <<NOTE: Computer Maintenance Competition Assurance 
Act.>> MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

SEC. 301. <<NOTE: 17 USC 101 note.>> SHORT TITLE.

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

[[Page 112 STAT. 2887]]

SEC. 302. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER PROGRAMS.

    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.''.

                   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''.
    (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--

[[Page 112 STAT. 2888]]

            (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.''.

SEC. 402. EPHEMERAL RECORDINGS.

    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

[[Page 112 STAT. 2889]]

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.''.

SEC. 403. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION.

    (a) Recommendations <<NOTE: Deadline.>> 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. 404. EXEMPTION FOR LIBRARIES AND ARCHIVES.

    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

[[Page 112 STAT. 2890]]

                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.''.

SEC. 405. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS; EPHEMERAL 
            RECORDINGS.

    (a) Scope of Exclusive Rights in Sound Recordings.--Section 114 of 
title 17, United States Code, is amended as follows:
            (1) Subsection (d) is amended--
                    (A) in paragraph (1) by striking subparagraph (A) 
                and inserting the following:
                    ``(A) a nonsubscription broadcast transmission;''; 
                and
                    (B) by amending paragraph (2) to read as follows:
            ``(2) Statutory licensing of certain transmissions.--The 
        performance of a sound recording publicly by means of a 
        subscription digital audio transmission not exempt under 
        paragraph (1), an eligible nonsubscription transmission, or a 
        transmission not exempt under paragraph (1) that is made by a 
        preexisting satellite digital audio radio service shall be 
        subject to statutory licensing, in accordance with subsection (f 
        ) if--

[[Page 112 STAT. 2891]]

                    ``(A)(i) the transmission is not part of an 
                interactive service;
                    ``(ii) except in the case of a transmission to a 
                business establishment, the transmitting entity does not 
                automatically and intentionally cause any device 
                receiving the transmission to switch from one program 
                channel to another; and
                    ``(iii) except as provided in section 1002(e), the 
                transmission of the sound recording is accompanied, if 
                technically feasible, by the information encoded in that 
                sound recording, if any, by or under the authority of 
                the copyright owner of that sound recording, that 
                identifies the title of the sound recording, the 
                featured recording artist who performs on the sound 
                recording, and related information, including 
                information concerning the underlying musical work and 
                its writer;
                    ``(B) in the case of a subscription transmission not 
                exempt under paragraph (1) that is made by a preexisting 
                subscription service in the same transmission medium 
                used by such service on July 31, 1998, or in the case of 
                a transmission not exempt under paragraph (1) that is 
                made by a preexisting satellite digital audio radio 
                service--
                          ``(i) the transmission does not exceed the 
                      sound recording performance complement; and
                          ``(ii) the transmitting entity does not cause 
                      to be published by means of an advance program 
                      schedule or prior announcement the titles of the 
                      specific sound recordings or phonorecords 
                      embodying such sound recordings to be transmitted; 
                      and
                    ``(C) in the case of an eligible nonsubscription 
                transmission or a subscription transmission not exempt 
                under paragraph (1) that is made by a new subscription 
                service or by a preexisting subscription service other 
                than in the same transmission medium used by such 
                service on July 31, 1998--
                          ``(i) the transmission does not exceed the 
                      sound recording performance complement, except 
                      that this requirement shall not apply in the case 
                      of a retransmission of a broadcast transmission if 
                      the retransmission is made by a transmitting 
                      entity that does not have the right or ability to 
                      control the programming of the broadcast station 
                      making the broadcast transmission, unless--
                                    ``(I) the broadcast station makes 
                                broadcast transmissions--
                                            ``(aa) in digital format 
                                        that regularly exceed the sound 
                                        recording performance 
                                        complement; or
                                            ``(bb) in analog format, a 
                                        substantial portion of which, on 
                                        a weekly basis, exceed the sound 
                                        recording performance 
                                        complement; and
                                    ``(II) the sound recording copyright 
                                owner or its representative has notified 
                                the transmitting entity in writing that 
                                broadcast transmissions of the copyright 
                                owner's sound recordings exceed the 
                                sound recording performance complement 
                                as provided in this clause;

[[Page 112 STAT. 2892]]

                          ``(ii) the transmitting entity does not cause 
                      to be published, or induce or facilitate the 
                      publication, by means of an advance program 
                      schedule or prior announcement, the titles of the 
                      specific sound recordings to be transmitted, the 
                      phonorecords embodying such sound recordings, or, 
                      other than for illustrative purposes, the names of 
                      the featured recording artists, except that this 
                      clause does not disqualify a transmitting entity 
                      that makes a prior announcement that a particular 
                      artist will be featured within an unspecified 
                      future time period, and in the case of a 
                      retransmission of a broadcast transmission by a 
                      transmitting entity that does not have the right 
                      or ability to control the programming of the 
                      broadcast transmission, the requirement of this 
                      clause shall not apply to a prior oral 
                      announcement by the broadcast station, or to an 
                      advance program schedule published, induced, or 
                      facilitated by the broadcast station, if the 
                      transmitting entity does not have actual knowledge 
                      and has not received written notice from the 
                      copyright owner or its representative that the 
                      broadcast station publishes or induces or 
                      facilitates the publication of such advance 
                      program schedule, or if such advance program 
                      schedule is a schedule of classical music 
                      programming published by the broadcast station in 
                      the same manner as published by that broadcast 
                      station on or before September 30, 1998;
                          ``(iii) the transmission--
                                    ``(I) is not part of an archived 
                                program of less than 5 hours duration;
                                    ``(II) is not part of an archived 
                                program of 5 hours or greater in 
                                duration that is made available for a 
                                period exceeding 2 weeks;
                                    ``(III) is not part of a continuous 
                                program which is of less than 3 hours 
                                duration; or
                                    ``(IV) is not part of an 
                                identifiable program in which 
                                performances of sound recordings are 
                                rendered in a predetermined order, other 
                                than an archived or continuous program, 
                                that is transmitted at--
                                            ``(aa) more than 3 times in 
                                        any 2-week period that have been 
                                        publicly announced in advance, 
                                        in the case of a program of less 
                                        than 1 hour in duration, or
                                            ``(bb) more than 4 times in 
                                        any 2-week period that have been 
                                        publicly announced in advance, 
                                        in the case of a program of 1 
                                        hour or more in duration,
                                except that the requirement of this 
                                subclause shall not apply in the case of 
                                a retransmission of a broadcast 
                                transmission by a transmitting entity 
                                that does not have the right or ability 
                                to control the programming of the 
                                broadcast transmission, unless the 
                                transmitting entity is given notice in 
                                writing by the copyright owner of the 
                                sound recording that the broadcast 
                                station makes broadcast

[[Page 112 STAT. 2893]]

                                transmissions that regularly violate 
                                such requirement;
                          ``(iv) the transmitting entity does not 
                      knowingly perform the sound recording, as part of 
                      a service that offers transmissions of visual 
                      images contemporaneously with transmissions of 
                      sound recordings, in a manner that is likely to 
                      cause confusion, to cause mistake, or to deceive, 
                      as to the affiliation, connection, or association 
                      of the copyright owner or featured recording 
                      artist with the transmitting entity or a 
                      particular product or service advertised by the 
                      transmitting entity, or as to the origin, 
                      sponsorship, or approval by the copyright owner or 
                      featured recording artist of the activities of the 
                      transmitting entity other than the performance of 
                      the sound recording itself;
                          ``(v) the transmitting entity cooperates to 
                      prevent, to the extent feasible without imposing 
                      substantial costs or burdens, a transmission 
                      recipient or any other person or entity from 
                      automatically scanning the transmitting entity's 
                      transmissions alone or together with transmissions 
                      by other transmitting entities in order to select 
                      a particular sound recording to be transmitted to 
                      the transmission recipient, except that the 
                      requirement of this clause shall not apply to a 
                      satellite digital audio service that is in 
                      operation, or that is licensed by the Federal 
                      Communications Commission, on or before July 31, 
                      1998;
                          ``(vi) the transmitting entity takes no 
                      affirmative steps to cause or induce the making of 
                      a phonorecord by the transmission recipient, and 
                      if the technology used by the transmitting entity 
                      enables the transmitting entity to limit the 
                      making by the transmission recipient of 
                      phonorecords of the transmission directly in a 
                      digital format, the transmitting entity sets such 
                      technology to limit such making of phonorecords to 
                      the extent permitted by such technology;
                          ``(vii) phonorecords of the sound recording 
                      have been distributed to the public under the 
                      authority of the copyright owner or the copyright 
                      owner authorizes the transmitting entity to 
                      transmit the sound recording, and the transmitting 
                      entity makes the transmission from a phonorecord 
                      lawfully made under the authority of the copyright 
                      owner, except that the requirement of this clause 
                      shall not apply to a retransmission of a broadcast 
                      transmission by a transmitting entity that does 
                      not have the right or ability to control the 
                      programming of the broadcast transmission, unless 
                      the transmitting entity is given notice in writing 
                      by the copyright owner of the sound recording that 
                      the broadcast station makes broadcast 
                      transmissions that regularly violate such 
                      requirement;
                          ``(viii) the transmitting entity accommodates 
                      and does not interfere with the transmission of 
                      technical measures that are widely used by sound 
                      recording copyright owners to identify or protect 
                      copyrighted works, and that are technically 
                      feasible of being

[[Page 112 STAT. 2894]]

                      transmitted by the transmitting entity without 
                      imposing substantial costs on the transmitting 
                      entity or resulting in perceptible aural or visual 
                      degradation of the digital signal, except that the 
                      requirement of this clause shall not apply to a 
                      satellite digital audio service that is in 
                      operation, or that is licensed under the authority 
                      of the Federal Communications Commission, on or 
                      before July 31, 1998, to the extent that such 
                      service has designed, developed, or made 
                      commitments to procure equipment or technology 
                      that is not compatible with such technical 
                      measures before such technical measures are widely 
                      adopted by sound recording copyright owners; and
                          ``(ix) the transmitting entity identifies in 
                      textual data the sound recording during, but not 
                      before, the time it is performed, including the 
                      title of the sound recording, the title of the 
                      phonorecord embodying such sound recording, if 
                      any, and the featured recording artist, in a 
                      manner to permit it to be displayed to the 
                      transmission recipient by the device or technology 
                      intended for receiving the service provided by the 
                      transmitting entity, except that the obligation in 
                      this clause shall not take effect until 1 year 
                      after the date of the enactment of the Digital 
                      Millennium Copyright Act and shall not apply in 
                      the case of a retransmission of a broadcast 
                      transmission by a transmitting entity that does 
                      not have the right or ability to control the 
                      programming of the broadcast transmission, or in 
                      the case in which devices or technology intended 
                      for receiving the service provided by the 
                      transmitting entity that have the capability to 
                      display such textual data are not common in the 
                      marketplace.''.
            (2) Subsection (f ) is amended--
                    (A) in the subsection heading by striking 
                ``Nonexempt Subscription'' and inserting ``Certain 
                Nonexempt'';
                    (B) in paragraph (1)--
                          (i) in the first sentence--
                                    (I) by striking ``(1) No'' and 
                                inserting ``(1)(A) No'';
                                    (II) by striking ``the activities'' 
                                and inserting ``subscription 
                                transmissions by preexisting 
                                subscription services and transmissions 
                                by preexisting satellite digital audio 
                                radio services''; and
                                    (III) by striking ``2000'' and 
                                inserting ``2001''; and
                          (ii) by amending the third sentence to read as 
                      follows: ``Any copyright owners of sound 
                      recordings, preexisting subscription services, or 
                      preexisting satellite digital audio radio services 
                      may submit to the Librarian of Congress licenses 
                      covering such subscription transmissions with 
                      respect to such sound recordings.''; and
                    (C) by striking paragraphs (2), (3), (4), and (5) 
                and inserting the following:
            ``(B) <<NOTE: Federal Register, publication.>> In the 
        absence of license agreements negotiated under subparagraph (A), 
        during the 60-day period commencing 6

[[Page 112 STAT. 2895]]

        months after publication of the notice specified in subparagraph 
        (A), and upon the filing of a petition in accordance with 
        section 803(a)(1), the Librarian of Congress shall, pursuant to 
        chapter 8, convene a copyright arbitration royalty panel to 
        determine and publish in the Federal Register a schedule of 
        rates and terms which, subject to paragraph (3), shall be 
        binding on all copyright owners of sound recordings and entities 
        performing sound recordings affected by this paragraph. In 
        establishing rates and terms for preexisting subscription 
        services and preexisting satellite digital audio radio services, 
        in addition to the objectives set forth in section 801(b)(1), 
        the copyright arbitration royalty panel may consider the rates 
        and terms for comparable types of subscription digital audio 
        transmission services and comparable circumstances under 
        voluntary license agreements negotiated as provided in 
        subparagraph (A).
            ``(C)(i) <<NOTE: Regulations.>> Publication of a notice of 
        the initiation of voluntary negotiation proceedings as specified 
        in subparagraph (A) shall be repeated, in accordance with 
        regulations that the Librarian of Congress shall prescribe--
                    ``(I) no later than 30 days after a petition is 
                filed by any copyright owners of sound recordings, any 
                preexisting subscription services, or any preexisting 
                satellite digital audio radio services indicating that a 
                new type of subscription digital audio transmission 
                service on which sound recordings are performed is or is 
                about to become operational; and
                    ``(II) in the first week of January 2001, and at 5-
                year intervals thereafter.
            ``(ii) The procedures specified in subparagraph (B) shall be 
        repeated, in accordance with regulations that the Librarian of 
        Congress shall prescribe, upon filing of a petition in 
        accordance with section 803(a)(1) during a 60-day period 
        commencing--
                    ``(I) 6 months after publication of a notice of the 
                initiation of voluntary negotiation proceedings under 
                subparagraph (A) pursuant to a petition under clause 
                (i)(I) of this subparagraph; or
                    ``(II) on July 1, 2001, and at 5-year intervals 
                thereafter.
            ``(iii) The procedures specified in subparagraph (B) shall 
        be concluded in accordance with section 802.
            ``(2)(A) <<NOTE: Deadline. Federal Register, 
        publication. Notice.>> No later than 30 days after the date of 
        the enactment of the Digital Millennium Copyright Act, the 
        Librarian of Congress shall cause notice to be published in the 
        Federal Register of the initiation of voluntary negotiation 
        proceedings for the purpose of determining reasonable terms and 
        rates of royalty payments for public performances of sound 
        recordings by means of eligible nonsubscription transmissions 
        and transmissions by new subscription services specified by 
        subsection (d)(2) during the period beginning on the date of the 
        enactment of such Act and ending on December 31, 2000, or such 
        other date as the parties may agree. Such rates and terms shall 
        distinguish among the different types of eligible 
        nonsubscription transmission services and new subscription 
        services then in operation and shall include a minimum fee for 
        each such type of service. Any copyright owners of sound 
        recordings or any entities performing sound recordings affected 
        by this paragraph may submit to the Librarian of Congress 
        licenses covering

[[Page 112 STAT. 2896]]

        such eligible nonsubscription transmissions and new subscription 
        services with respect to such sound recordings. The parties to 
        each negotiation proceeding shall bear their own costs.
            ``(B) <<NOTE: Federal Register, publication.>> In the 
        absence of license agreements negotiated under subparagraph (A), 
        during the 60-day period commencing 6 months after publication 
        of the notice specified in subparagraph (A), and upon the filing 
        of a petition in accordance with section 803(a)(1), the 
        Librarian of Congress shall, pursuant to chapter 8, convene a 
        copyright arbitration royalty panel to determine and publish in 
        the Federal Register a schedule of rates and terms which, 
        subject to paragraph (3), shall be binding on all copyright 
        owners of sound recordings and entities performing sound 
        recordings affected by this paragraph during the period 
        beginning on the date of the enactment of the Digital Millennium 
        Copyright Act and ending on December 31, 2000, or such other 
        date as the parties may agree. Such rates and terms shall 
        distinguish among the different types of eligible 
        nonsubscription transmission services then in operation and 
        shall include a minimum fee for each such type of service, such 
        differences to be based on criteria including, but not limited 
        to, the quantity and nature of the use of sound recordings and 
        the degree to which use of the service may substitute for or may 
        promote the purchase of phonorecords by consumers. In 
        establishing rates and terms for transmissions by eligible 
        nonsubscription services and new subscription services, the 
        copyright arbitration royalty panel shall establish rates and 
        terms that most clearly represent the rates and terms that would 
        have been negotiated in the marketplace between a willing buyer 
        and a willing seller. In determining such rates and terms, the 
        copyright arbitration royalty panel shall base its decision on 
        economic, competitive and programming information presented by 
        the parties, including--
                    ``(i) whether use of the service may substitute for 
                or may promote the sales of phonorecords or otherwise 
                may interfere with or may enhance the sound recording 
                copyright owner's other streams of revenue from its 
                sound recordings; and
                    ``(ii) the relative roles of the copyright owner and 
                the transmitting entity in the copyrighted work and the 
                service made available to the public with respect to 
                relative creative contribution, technological 
                contribution, capital investment, cost, and risk.
        In establishing such rates and terms, the copyright arbitration 
        royalty panel may consider the rates and terms for comparable 
        types of digital audio transmission services and comparable 
        circumstances under voluntary license agreements negotiated 
        under subparagraph (A).
            ``(C)(i) <<NOTE: Regulations.>> Publication of a notice of 
        the initiation of voluntary negotiation proceedings as specified 
        in subparagraph (A) shall be repeated in accordance with 
        regulations that the Librarian of Congress shall prescribe--
                    ``(I) no later than 30 days after a petition is 
                filed by any copyright owners of sound recordings or any 
                eligible nonsubscription service or new subscription 
                service indicating that a new type of eligible 
                nonsubscription service or new subscription service on 
                which sound recordings are performed is or is about to 
                become operational; and

[[Page 112 STAT. 2897]]

                    ``(II) in the first week of January 2000, and at 2-
                year intervals thereafter, except to the extent that 
                different years for the repeating of such proceedings 
                may be determined in accordance with subparagraph (A).
            ``(ii) The procedures specified in subparagraph (B) shall be 
        repeated, in accordance with regulations that the Librarian of 
        Congress shall prescribe, upon filing of a petition in 
        accordance with section 803(a)(1) during a 60-day period 
        commencing--
                    ``(I) 6 months after publication of a notice of the 
                initiation of voluntary negotiation proceedings under 
                subparagraph (A) pursuant to a petition under clause 
                (i)(I); or
                    ``(II) on July 1, 2000, and at 2-year intervals 
                thereafter, except to the extent that different years 
                for the repeating of such proceedings may be determined 
                in accordance with subparagraph (A).
            ``(iii) The procedures specified in subparagraph (B) shall 
        be concluded in accordance with section 802.
            ``(3) License agreements voluntarily negotiated at any time 
        between 1 or more copyright owners of sound recordings and 1 or 
        more entities performing sound recordings shall be given effect 
        in lieu of any determination by a copyright arbitration royalty 
        panel or decision by the Librarian of Congress.
            ``(4)(A) The Librarian of Congress shall also establish 
        requirements by which copyright owners may receive reasonable 
        notice of the use of their sound recordings under this section, 
        and under which records of such use shall be kept and made 
        available by entities performing sound recordings.
            ``(B) Any person who wishes to perform a sound recording 
        publicly by means of a transmission eligible for statutory 
        licensing under this subsection may do so without infringing the 
        exclusive right of the copyright owner of the sound recording--
                    ``(i) <<NOTE: Regulations.>> by complying with such 
                notice requirements as the Librarian of Congress shall 
                prescribe by regulation and by paying royalty fees in 
                accordance with this subsection; or
                    ``(ii) if such royalty fees have not been set, by 
                agreeing to pay such royalty fees as shall be determined 
                in accordance with this subsection.
            ``(C) Any royalty payments in arrears shall be made on or 
        before the twentieth day of the month next succeeding the month 
        in which the royalty fees are set.''.
            (3) Subsection (g) is amended--
                    (A) in the subsection heading by striking ``Sub-
                scription'';
                    (B) in paragraph (1) in the matter preceding 
                subparagraph (A), by striking ``subscription 
                transmission licensed'' and inserting ``transmission 
                licensed under a statutory license'';
                    (C) in subparagraphs (A) and (B) by striking 
                ``subscription''; and
                    (D) in paragraph (2) by striking ``subscription''.
            (4) Subsection ( j) is amended--
                    (A) by striking paragraphs (4) and (9) and 
                redesignating paragraphs (2), (3), (5), (6), (7), and 
                (8) as paragraphs (3), (5), (9), (12), (13), and (14), 
                respectively;

[[Page 112 STAT. 2898]]

                    (B) by inserting after paragraph (1) the following:
            ``(2) An `archived program' is a predetermined program that 
        is available repeatedly on the demand of the transmission 
        recipient and that is performed in the same order from the 
        beginning, except that an archived program shall not include a 
        recorded event or broadcast transmission that makes no more than 
        an incidental use of sound recordings, as long as such recorded 
        event or broadcast transmission does not contain an entire sound 
        recording or feature a particular sound recording.'';
                    (C) by inserting after paragraph (3), as so 
                redesignated, the following:
            ``(4) A `continuous program' is a predetermined program that 
        is continuously performed in the same order and that is accessed 
        at a point in the program that is beyond the control of the 
        transmission recipient.'';
                    (D) by inserting after paragraph (5), as so 
                redesignated, the following:
            ``(6) An `eligible nonsubscription transmission' is a 
        noninteractive nonsubscription digital audio transmission not 
        exempt under subsection (d)(1) that is made as part of a service 
        that provides audio programming consisting, in whole or in part, 
        of performances of sound recordings, including retransmissions 
        of broadcast transmissions, if the primary purpose of the 
        service is to provide to the public such audio or other 
        entertainment programming, and the primary purpose of the 
        service is not to sell, advertise, or promote particular 
        products or services other than sound recordings, live concerts, 
        or other music-related events.
            ``(7) An `interactive service' is one that enables a member 
        of the public to receive a transmission of a program specially 
        created for the recipient, or on request, a transmission of a 
        particular sound recording, whether or not as part of a program, 
        which is selected by or on behalf of the recipient. The ability 
        of individuals to request that particular sound recordings be 
        performed for reception by the public at large, or in the case 
        of a subscription service, by all subscribers of the service, 
        does not make a service interactive, if the programming on each 
        channel of the service does not substantially consist of sound 
        recordings that are performed within 1 hour of the request or at 
        a time designated by either the transmitting entity or the 
        individual making such request. If an entity offers both 
        interactive and noninteractive services (either concurrently or 
        at different times), the noninteractive component shall not be 
        treated as part of an interactive service.
            ``(8) A `new subscription service' is a service that 
        performs sound recordings by means of noninteractive 
        subscription 
        digital audio transmissions and that is not a preexisting 
        subscription service or a preexisting satellite digital audio 
        radio service.'';
                    (E) by inserting after paragraph (9), as so 
                redesignated, the following:
            ``(10) A `preexisting satellite digital audio radio service' 
        is a subscription satellite digital audio radio service provided 
        pursuant to a satellite digital audio radio service license 
        issued by the Federal Communications Commission on or before 
        July 31, 1998, and any renewal of such license to the extent of

[[Page 112 STAT. 2899]]

        the scope of the original license, and may include a limited 
        number of sample channels representative of the subscription 
        service that are made available on a nonsubscription basis in 
        order to promote the subscription service.
            ``(11) A `preexisting subscription service' is a service 
        that performs sound recordings by means of noninteractive audio-
        only subscription digital audio transmissions, which was in 
        existence and was making such transmissions to the public for a 
        fee on or before July 31, 1998, and may include a limited number 
        of sample channels representative of the subscription service 
        that are made available on a nonsubscription basis in order to 
        promote the subscription service.''; and
                    (F) by adding at the end the following:
            ``(15) A `transmission' is either an initial transmission or 
        a retransmission.''.
            (5) <<NOTE: 17 USC 114 note.>> 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) <<NOTE: 17 USC 114 note.>> 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.

    (b) Ephemeral Recordings.--Section 112 of title 17, United States 
Code, is amended--
            (1) by redesignating subsection (e) as subsection (f ); and
            (2) by inserting after subsection (d) the following:

    ``(e) Statutory License.--(1) A transmitting organization entitled 
to transmit to the public a performance of a sound recording under the 
limitation on exclusive rights specified by section 114(d)(1)(C)(iv) or 
under a statutory license in accordance with section 114(f ) is entitled 
to a statutory license, under the conditions specified by this 
subsection, to make no more than 1 phonorecord of the sound recording 
(unless the terms and conditions of the statutory license allow for 
more), if the following conditions are satisfied:
            ``(A) The phonorecord is retained and used solely by the 
        transmitting organization that made it, and no further 
        phonorecords are reproduced from it.
            ``(B) The phonorecord is used solely for the transmitting 
        organization's own transmissions originating in the United 
        States under a statutory license in accordance with section 
        114(f ) or the limitation on exclusive rights specified by 
        section 114(d)(1)(C)(iv).
            ``(C) Unless preserved exclusively for purposes of archival 
        preservation, the phonorecord is destroyed within 6 months from 
        the date the sound recording was first transmitted to the public 
        using the phonorecord.
            ``(D) Phonorecords of the sound recording have been 
        distributed to the public under the authority of the copyright 
        owner or the copyright owner authorizes the transmitting entity 
        to transmit the sound recording, and the transmitting entity

[[Page 112 STAT. 2900]]

        makes the phonorecord under this subsection from a phonorecord 
        lawfully made and acquired under the authority of the copyright 
        owner.

    ``(3) Notwithstanding any provision of the antitrust laws, any 
copyright owners of sound recordings and any transmitting organizations 
entitled to a statutory license under this subsection may negotiate and 
agree upon royalty rates and license terms and conditions for making 
phonorecords of such sound recordings under this section and the 
proportionate division of fees paid among copyright owners, and may 
designate common agents to negotiate, agree to, pay, or receive such 
royalty payments.
    ``(4) <<NOTE: Deadline. Federal Register, publication. Notice.>> No 
later than 30 days after the date of the enactment of the Digital 
Millennium Copyright Act, the Librarian of Congress shall cause notice 
to be published in the Federal Register of the initiation of voluntary 
negotiation proceedings for the purpose of determining reasonable terms 
and rates of royalty payments for the activities specified by paragraph 
(2) of this subsection during the period beginning on the date of the 
enactment of such Act and ending on December 31, 2000, or such other 
date as the parties may agree. Such rates shall include a minimum fee 
for each type of service offered by transmitting organizations. Any 
copyright owners of sound recordings or any transmitting organizations 
entitled to a statutory license under this subsection may submit to the 
Librarian of Congress licenses covering such activities with respect to 
such sound recordings. The parties to each negotiation proceeding shall 
bear their own costs.

    ``(5) <<NOTE: Federal Register, publication.>> In the absence of 
license agreements negotiated under paragraph (3), during the 60-day 
period commencing 6 months after publication of the notice specified in 
paragraph (4), and upon the filing of a petition in accordance with 
section 803(a)(1), the Librarian of Congress shall, pursuant to chapter 
8, convene a copyright arbitration royalty panel to determine and 
publish in the Federal Register a schedule of reasonable rates and terms 
which, subject to paragraph (6), shall be binding on all copyright 
owners of sound recordings and transmitting organizations entitled to a 
statutory license under this subsection during the period beginning on 
the date of the enactment of the Digital Millennium Copyright Act and 
ending on December 31, 2000, or such other date as the parties may 
agree. Such rates shall include a minimum fee for each type of service 
offered by transmitting organizations. The copyright arbitration royalty 
panel shall establish rates that most clearly represent the fees that 
would have been negotiated in the marketplace between a willing buyer 
and a willing seller. In determining such rates and terms, the copyright 
arbitration royalty panel shall base its decision on economic, 
competitive, and programming information presented by the parties, 
including--
            ``(A) whether use of the service may substitute for or may 
        promote the sales of phonorecords or otherwise interferes with 
        or enhances the copyright owner's traditional streams of 
        revenue; and
            ``(B) the relative roles of the copyright owner and the 
        transmitting organization in the copyrighted work and the 
        service made available to the public with respect to relative 
        creative contribution, technological contribution, capital 
        investment, cost, and risk.

In establishing such rates and terms, the copyright arbitration royalty 
panel may consider the rates and terms under voluntary

[[Page 112 STAT. 2901]]

license agreements negotiated as provided in paragraphs (3) and (4). The 
Librarian of Congress shall also establish requirements by which 
copyright owners may receive reasonable notice of the use of their sound 
recordings under this section, and under which records of such use shall 
be kept and made available by transmitting organizations entitled to 
obtain a statutory license under this subsection.
    ``(6) License agreements voluntarily negotiated at any time between 
1 or more copyright owners of sound recordings and 1 or more 
transmitting organizations entitled to obtain a statutory license under 
this subsection shall be given effect in lieu of any determination by a 
copyright arbitration royalty panel or decision by the Librarian of 
Congress.
    ``(7) <<NOTE: Regulations.>> Publication of a notice of the 
initiation of voluntary negotiation proceedings as specified in 
paragraph (4) shall be repeated, in accordance with regulations that the 
Librarian of Congress shall prescribe, in the first week of January 
2000, and at 2-year intervals thereafter, except to the extent that 
different years for the repeating of such proceedings may be determined 
in accordance with paragraph (4). The procedures specified in paragraph 
(5) shall be repeated, in accordance with regulations that the Librarian 
of Congress shall prescribe, upon filing of a petition in accordance 
with section 803(a)(1), during a 60-day period commencing on July 1, 
2000, and at 2-year intervals thereafter, except to the extent that 
different years for the repeating of such proceedings may be determined 
in accordance with paragraph (4). The procedures specified in paragraph 
(5) shall be concluded in accordance with section 802.

    ``(8)(A) Any person who wishes to make a phonorecord of a sound 
recording under a statutory license in accordance with this subsection 
may do so without infringing the exclusive right of the copyright owner 
of the sound recording under section 106(1)--
            ``(i) by complying with such notice requirements as the 
        Librarian of Congress shall prescribe by regulation and by 
        paying royalty fees in accordance with this subsection; or
            ``(ii) if such royalty fees have not been set, by agreeing 
        to pay such royalty fees as shall be determined in accordance 
        with this subsection.

    ``(B) Any royalty payments in arrears shall be made on or before the 
20th day of the month next succeeding the month in which the royalty 
fees are set.
    ``(9) If a transmitting organization entitled to make a phonorecord 
under this subsection is prevented from making such phonorecord by 
reason of the application by the copyright owner of technical measures 
that prevent the reproduction of the sound recording, the copyright 
owner shall make available to the transmitting organization the 
necessary means for permitting the making of such phonorecord as 
permitted under this subsection, 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 phonorecords as permitted under this subsection.
    ``(10) Nothing in this subsection annuls, limits, impairs, or 
otherwise affects in any way the existence or value of any of

[[Page 112 STAT. 2902]]

the exclusive rights of the copyright owners in a sound recording, 
except as otherwise provided in this subsection, or in a musical work, 
including the exclusive rights to reproduce and distribute a sound 
recording or musical work, including by means of a digital phonorecord 
delivery, under sections 106(1), 106(3), and 115, and the right to 
perform publicly a sound recording or musical work, including by means 
of a digital audio transmission, under sections 106(4) and 106(6).''.
    (c) Scope <<NOTE: 17 USC 112 note.>> 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.

    (d) Procedural Amendments to Chapter 8.--Section 802 of title 17, 
United States Code, is amended--
            (1) in subsection (f )--
                    (A) in the first sentence by striking ``60'' and 
                inserting ``90''; and
                    (B) in the third sentence by striking ``that 60-day 
                period'' and inserting ``an additional 30-day period''; 
                and
            (2) in subsection (g) by inserting after the second sentence 
        the following: ``When this title provides that the royalty rates 
        or terms that were previously in effect are to expire on a 
        specified date, any adjustment by the Librarian of those rates 
        or terms shall be effective as of the day following the date of 
        expiration of the rates or terms that were previously in effect, 
        even if the Librarian's decision is rendered on a later date.''.

    (e) Conforming Amendments.--(1) Section 801(b)(1) of title 17, 
United States Code, is amended in the second sentence by striking 
``sections 114, 115, and 116'' and inserting ``sections 114(f )(1)(B), 
115, and 116''.
    (2) Section 802(c) of title 17, United States Code, is amended by 
striking ``section 111, 114, 116, or 119, any person entitled to a 
compulsory license'' and inserting ``section 111, 112, 114, 116, or 119, 
any transmitting organization entitled to a statutory license under 
section 112(f ), any person entitled to a statutory license''.
    (3) Section 802(g) of title 17, United States Code, is amended by 
striking ``sections 111, 114'' and inserting ``sections 111, 112, 114''.
    (4) Section 802(h)(2) of title 17, United States Code, is amended by 
striking ``section 111, 114'' and inserting ``section 111, 112, 114''.
    (5) Section 803(a)(1) of title 17, United States Code, is amended by 
striking ``sections 114, 115'' and inserting ``sections 112, 114, 115''.
    (6) Section 803(a)(5) of title 17, United States Code, is 
amended--
            (A) by striking ``section 114'' and inserting ``section 112 
        or 114''; and
            (B) by striking ``that section'' and inserting ``those 
        sections''.

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:

[[Page 112 STAT. 2903]]

      ``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) <<NOTE: Applicability.>> 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.

[[Page 112 STAT. 2904]]

            ``(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.

[[Page 112 STAT. 2905]]

    ``(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 <<NOTE: Reports.>> 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''.

SEC. 407. <<NOTE: 17 USC 108 note.>> 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 <<NOTE: Vessel Hull Design Protection Act.>> OF 
CERTAIN ORIGINAL DESIGNS

SEC. 501. <<NOTE: 17 USC 101 note.>> SHORT TITLE.

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

SEC. 502. PROTECTION OF CERTAIN ORIGINAL DESIGNS.

    Title 17, United States Code, is amended by adding at the end the 
following new chapter:

              ``CHAPTER 13--PROTECTION OF ORIGINAL DESIGNS

``Sec.
``1301. Designs protected.
``1302. Designs not subject to protection.
``1303. Revisions, adaptations, and rearrangements.
``1304. Commencement of protection.
``1305. Term of protection.
``1306. Design notice.
``1307. Effect of omission of notice.
``1308. Exclusive rights.
``1309. Infringement.
``1310. Application for registration.
``1311. Benefit of earlier filing date in foreign country.
``1312. Oaths and acknowledgments.
``1313. Examination of application and issue or refusal of registration.
``1314. Certification of registration.
``1315. Publication of announcements and indexes.
``1316. Fees.
``1317. Regulations.
``1318. Copies of records.
``1319. Correction of errors in certificates.
``1320. Ownership and transfer.
``1321. Remedy for infringement.
``1322. Injunctions.
``1323. Recovery for infringement.
``1324. Power of court over registration.
``1325. Liability for action on registration fraudulently obtained.
``1326. Penalty for false marking.
``1327. Penalty for false representation.
``1328. Enforcement by Treasury and Postal Service.
``1329. Relation to design patent law.
``1330. Common law and other rights unaffected.
``1331. Administrator; Office of the Administrator.
``1332. No retroactive effect.

``Sec. 1301. Designs protected

    ``(a) Designs Protected.--

[[Page 112 STAT. 2906]]

            ``(1) In general.--The designer or other owner of an 
        original design of a useful article which makes the article 
        attractive or distinctive in appearance to the purchasing or 
        using public may secure the protection provided by this chapter 
        upon complying with and subject to this chapter.
            ``(2) Vessel hulls.--The design of a vessel hull, including 
        a plug or mold, is subject to protection under this chapter, 
        notwithstanding section 1302(4).

    ``(b) Definitions.--For the purpose of this chapter, the 
following terms have the following meanings:
            ``(1) A design is `original' if it is the result of the 
        designer's creative endeavor that provides a distinguishable 
        variation over prior work pertaining to similar articles which 
        is more than merely trivial and has not been copied from another 
        source.
            ``(2) A `useful article' is a vessel hull, including a plug 
        or mold, which in normal use has an intrinsic utilitarian 
        function that is not merely to portray the appearance of the 
        article or to convey information. An article which normally is 
        part of a useful article shall be deemed to be a useful article.
            ``(3) A `vessel' is a craft, especially one larger than a 
        rowboat, designed to navigate on water, but does not include any 
        such craft that exceeds 200 feet in length.
            ``(4) A `hull' is the frame or body of a vessel, including 
        the deck of a vessel, exclusive of masts, sails, yards, and 
        rigging.
            ``(5) A `plug' means a device or model used to make a mold 
        for the purpose of exact duplication, regardless of whether the 
        device or model has an intrinsic utilitarian function that is 
        not only to portray the appearance of the product or to convey 
        information.
            ``(6) A `mold' means a matrix or form in which a substance 
        for material is used, regardless of whether the matrix or form 
        has an intrinsic utilitarian function that is not only to 
        portray the appearance of the product or to convey information.

``Sec. 1302. Designs not subject to protection

    ``Protection under this chapter shall not be available for a design 
that is--
            ``(1) not original;
            ``(2) staple or commonplace, such as a standard geometric 
        figure, a familiar symbol, an emblem, or a motif, or another 
        shape, pattern, or configuration which has become standard, 
        common, prevalent, or ordinary;
            ``(3) different from a design excluded by paragraph (2) only 
        in insignificant details or in elements which are variants 
        commonly used in the relevant trades;
            ``(4) dictated solely by a utilitarian function of the 
        article that embodies it; or
            ``(5) embodied in a useful article that was made public by 
        the designer or owner in the United States or a foreign country 
        more than 1 year before the date of the application for 
        registration under this chapter.

``Sec. 1303. Revisions, adaptations, and rearrangements

    ``Protection for a design under this chapter shall be available 
notwithstanding the employment in the design of subject matter excluded 
from protection under section 1302 if the design is a substantial 
revision, adaptation, or rearrangement of such subject

[[Page 112 STAT. 2907]]

matter. Such protection shall be independent of any subsisting 
protection in subject matter employed in the design, and shall not be 
construed as securing any right to subject matter excluded from 
protection under this chapter or as extending any subsisting protection 
under this chapter.

``Sec. 1304. Commencement of protection

    ``The protection provided for a design under this chapter shall 
commence upon the earlier of the date of publication of the registration 
under section 1313(a) or the date the design is first made public as 
defined by section 1310(b).

``Sec. 1305. Term of protection

    ``(a) In General.--Subject to subsection (b), the protection 
provided under this chapter for a design shall continue for a term of 10 
years beginning on the date of the commencement of protection under 
section 1304.
    ``(b) Expiration.--All terms of protection provided in this 
section shall run to the end of the calendar year in which they would 
otherwise expire.
    ``(c) Termination of Rights.--Upon expiration or termination of 
protection in a particular design under this chapter, all rights under 
this chapter in the design shall terminate, regardless of the number of 
different articles in which the design may have been used during the 
term of its protection.

``Sec. 1306. Design notice

    ``(a) Contents of Design Notice.--(1) Whenever any design for which 
protection is sought under this chapter is made public under section 
1310(b), the owner of the design shall, subject to the provisions of 
section 1307, mark it or have it marked legibly with a design notice 
consisting of--
            ``(A) the words `Protected Design', the abbreviation `Prot'd 
        Des.', or the letter `D' with a circle, or the symbol `*D*';
            ``(B) the year of the date on which protection for the 
        design commenced; and
            ``(C) the name of the owner, an abbreviation by which the 
        name can be recognized, or a generally accepted alternative 
        designation of the owner.

Any distinctive identification of the owner may be used for purposes of 
subparagraph (C) if it has been recorded by the Administrator before the 
design marked with such identification is registered.
    ``(2) After registration, the registration number may be used 
instead of the elements specified in subparagraphs (B) and (C) of 
paragraph (1).
    ``(b) Location of Notice.--The design notice shall be so located and 
applied as to give reasonable notice of design protection while the 
useful article embodying the design is passing through its normal 
channels of commerce.
    ``(c) Subsequent Removal of Notice.--When the owner of a design has 
complied with the provisions of this section, protection under this 
chapter shall not be affected by the removal, destruction, or 
obliteration by others of the design notice on an article.

``Sec. 1307. Effect of omission of notice

    ``(a) Actions With Notice.--Except as provided in subsection (b), 
the omission of the notice prescribed in section 1306 shall

[[Page 112 STAT. 2908]]

not cause loss of the protection under this chapter or prevent recovery 
for infringement under this chapter against any person who, after 
receiving written notice of the design protection, begins an undertaking 
leading to infringement under this chapter.
    ``(b) Actions Without Notice.--The omission of the notice prescribed 
in section 1306 shall prevent any recovery under section 1323 against a 
person who began an undertaking leading to infringement under this 
chapter before receiving written notice of the design protection. No 
injunction shall be issued under this chapter with respect to such 
undertaking unless the owner of the design reimburses that person for 
any reasonable expenditure or contractual obligation in connection with 
such undertaking that was incurred before receiving written notice of 
the design protection, as the court in its discretion directs. The 
burden of providing written notice of design protection shall be on the 
owner of the design.

``Sec. 1308. Exclusive rights

    ``The owner of a design protected under this chapter has the 
exclusive right to--
            ``(1) make, have made, or import, for sale or for use in 
        trade, any useful article embodying that design; and
            ``(2) sell or distribute for sale or for use in trade any 
        useful article embodying that design.

``Sec. 1309. Infringement

    ``(a) Acts of Infringement.--Except as provided in subsection (b), 
it shall be infringement of the exclusive rights in a design protected 
under this chapter for any person, without the consent of the owner of 
the design, within the United States and during the term of such 
protection, to--
            ``(1) make, have made, or import, for sale or for use in 
        trade, any infringing article as defined in subsection (e); or
            ``(2) sell or distribute for sale or for use in trade any 
        such infringing article.

    ``(b) Acts of Sellers and Distributors.--A seller or distributor of 
an infringing article who did not make or import the article shall be 
deemed to have infringed on a design protected under this chapter only 
if that person--
            ``(1) induced or acted in collusion with a manufacturer to 
        make, or an importer to import such article, except that merely 
        purchasing or giving an order to purchase such article in the 
        ordinary course of business shall not of itself constitute such 
        inducement or collusion; or
            ``(2) refused or failed, upon the request of the owner of 
        the design, to make a prompt and full disclosure of that 
        person's source of such article, and that person orders or 
        reorders such article after receiving notice by registered or 
        certified mail of the protection subsisting in the design.

    ``(c) Acts Without Knowledge.--It shall not be infringement under 
this section to make, have made, import, sell, or distribute, any 
article embodying a design which was created without knowledge that a 
design was protected under this chapter and was copied from such 
protected design.
    ``(d) Acts in Ordinary Course of Business.--A person who 
incorporates into that person's product of manufacture an infringing 
article acquired from others in the ordinary course of business,

[[Page 112 STAT. 2909]]

or who, without knowledge of the protected design embodied in an 
infringing article, makes or processes the infringing article for the 
account of another person in the ordinary course of business, shall not 
be deemed to have infringed the rights in that design under this chapter 
except under a condition contained in paragraph (1) or (2) of subsection 
(b). Accepting an order or reorder from the source of the infringing 
article shall be deemed ordering or reordering within the meaning of 
subsection (b)(2).
    ``(e) Infringing Article Defined.--As used in this section, an 
`infringing article' is any article the design of which has been copied 
from a design protected under this chapter, without the consent of the 
owner of the protected design. An infringing article is not an 
illustration or picture of a protected design in an advertisement, book, 
periodical, newspaper, photograph, broadcast, motion picture, or similar 
medium. A design shall not be deemed to have been copied from a 
protected design if it is original and not substantially similar in 
appearance to a protected design.
    ``(f ) Establishing Originality.--The party to any action or 
proceeding under this chapter who alleges rights under this chapter in a 
design shall have the burden of establishing the design's originality 
whenever the opposing party introduces an earlier work which is 
identical to such design, or so similar as to make prima facie showing 
that such design was copied from such work.
    ``(g) Reproduction for Teaching or Analysis.--It is not an 
infringement of the exclusive rights of a design owner for a person to 
reproduce the design in a useful article or in any other form solely for 
the purpose of teaching, analyzing, or evaluating the appearance, 
concepts, or techniques embodied in the design, or the function of the 
useful article embodying the design.

``Sec. 1310. Application for registration

    ``(a) Time Limit for Application for Registration.--Protection under 
this chapter shall be lost if application for registration of the design 
is not made within 2 years after the date on which the design is first 
made public.
    ``(b) When Design is Made Public.--A design is made public when an 
existing useful article embodying the design is anywhere publicly 
exhibited, publicly distributed, or offered for sale or sold to the 
public by the owner of the design or with the owner's consent.
    ``(c) Application by Owner of Design.--Application for registration 
may be made by the owner of the design.
    ``(d) Contents of Application.--The application for registration 
shall be made to the Administrator and shall state--
            ``(1) the name and address of the designer or designers of 
        the design;
            ``(2) the name and address of the owner if different from 
        the designer;
            ``(3) the specific name of the useful article embodying the 
        design;
            ``(4) the date, if any, that the design was first made 
        public, if such date was earlier than the date of the 
        application;
            ``(5) affirmation that the design has been fixed in a useful 
        article; and
            ``(6) such other information as may be required by the 
        Administrator.

[[Page 112 STAT. 2910]]

The application for registration may include a description setting forth 
the salient features of the design, but the absence of such a 
description shall not prevent registration under this chapter.
    ``(e) Sworn Statement.--The application for registration shall be 
accompanied by a statement under oath by the applicant or the 
applicant's duly authorized agent or representative, setting forth, to 
the best of the applicant's knowledge and belief--
            ``(1) that the design is original and was created by the 
        designer or designers named in the application;
            ``(2) that the design has not previously been registered on 
        behalf of the applicant or the applicant's predecessor in title; 
        and
            ``(3) that the applicant is the person entitled to 
        protection and to registration under this chapter.

If the design has been made public with the design notice prescribed in 
section 1306, the statement shall also describe the exact form and 
position of the design notice.
    ``(f ) Effect of Errors.--(1) Error in any statement or assertion as 
to the utility of the useful article named in the application under this 
section, the design of which is sought to be registered, shall not 
affect the protection secured under this chapter.
    ``(2) Errors in omitting a joint designer or in naming an alleged 
joint designer shall not affect the validity of the registration, or the 
actual ownership or the protection of the design, unless it is shown 
that the error occurred with deceptive intent.
    ``(g) Design Made in Scope of Employment.--In a case in which the 
design was made within the regular scope of the designer's employment 
and individual authorship of the design is difficult or impossible to 
ascribe and the application so states, the name and address of the 
employer for whom the design was made may be stated instead of that of 
the individual designer.
    ``(h) Pictorial Representation of Design.--The application for 
registration shall be accompanied by two copies of a drawing or other 
pictorial representation of the useful article embodying the design, 
having one or more views, adequate to show the design, in a form and 
style suitable for reproduction, which shall be deemed a part of the 
application.
    ``(i) Design in More Than One Useful Article.--If the distinguishing 
elements of a design are in substantially the same form in different 
useful articles, the design shall be protected as to all such useful 
articles when protected as to one of them, but not more than one 
registration shall be required for the design.
    ``( j) Application for More Than One Design.--More than one design 
may be included in the same application under such conditions as may be 
prescribed by the Administrator. For each design included in an 
application the fee prescribed for a single design shall be paid.

``Sec. 1311. Benefit of earlier filing date in foreign country

    ``An application for registration of a design filed in the United 
States by any person who has, or whose legal representative or 
predecessor or successor in title has, previously filed an application 
for registration of the same design in a foreign country which extends 
to designs of owners who are citizens of the United States, or to 
applications filed under this chapter, similar protection to that 
provided under this chapter shall have that same effect as if filed in 
the United States on the date on which the application

[[Page 112 STAT. 2911]]

was first filed in such foreign country, if the application in the 
United States is filed within 6 months after the earliest date on which 
any such foreign application was filed.

``Sec. 1312. Oaths and acknowledgments

    ``(a) In General.--Oaths and acknowledgments required by this 
chapter--
            ``(1) may be made--
                    ``(A) before any person in the United States 
                authorized by law to administer oaths; or
                    ``(B) when made in a foreign country, before any 
                diplomatic or consular officer of the United States 
                authorized to administer oaths, or before any official 
                authorized to administer oaths in the foreign country 
                concerned, whose authority shall be proved by a 
                certificate of a diplomatic or consular officer of the 
                United States; and
            ``(2) shall be valid if they comply with the laws of the 
        State or country where made.

    ``(b) Written Declaration in Lieu of Oath.--(1) The Administrator 
may by rule prescribe that any document which is to be filed under this 
chapter in the Office of the Administrator and which is required by any 
law, rule, or other regulation to be under oath, may be subscribed to by 
a written declaration in such form as the Administrator may prescribe, 
and such declaration shall be in lieu of the oath otherwise required.
    ``(2) Whenever a written declaration under paragraph (1) is used, 
the document containing the declaration shall state that willful false 
statements are punishable by fine or imprisonment, or both, pursuant to 
section 1001 of title 18, and may jeopardize the validity of the 
application or document or a registration resulting therefrom.

``Sec. 1313. Examination of application and issue or refusal of 
                        registration

    ``(a) Determination of Registrability of Design; Registration.--Upon 
the filing of an application for registration in proper form under 
section 1310, and upon payment of the fee prescribed under section 1316, 
the Administrator shall determine whether or not the application relates 
to a design which on its face appears to be subject to protection under 
this chapter, and, if so, the Register shall register the 
design. <<NOTE: Publication.>> Registration under this subsection shall 
be announced by publication. The date of registration shall be the date 
of publication.

    ``(b) Refusal To Register; Reconsideration.--If, in the judgment of 
the Administrator, the application for registration relates to a design 
which on its face is not subject to protection under this chapter, the 
Administrator shall send to the applicant a notice of refusal to 
register and the grounds for the refusal. Within 3 months after the date 
on which the notice of refusal is sent, the applicant may, by written 
request, seek reconsideration of the application. After consideration of 
such a request, the Administrator shall either register the design or 
send to the applicant a notice of final refusal to register.
    ``(c) Application To Cancel Registration.--Any person who believes 
he or she is or will be damaged by a registration under this chapter 
may, upon payment of the prescribed fee, apply to the Administrator at 
any time to cancel the registration on the

[[Page 112 STAT. 2912]]

ground that the design is not subject to protection under this chapter, 
stating the reasons for the request. Upon receipt of an application for 
cancellation, the Administrator shall send to the owner of the design, 
as shown in the records of the Office of the Administrator, a notice of 
the application, and the owner shall have a period of 3 months after the 
date on which such notice is mailed in which to present arguments to the 
Administrator for support of the validity of the 
registration. <<NOTE: Regulations.>> The Administrator shall also have 
the authority to establish, by regulation, conditions under which the 
opposing parties may appear and be heard in support of their arguments. 
If, after the periods provided for the presentation of arguments have 
expired, the Administrator determines that the applicant for 
cancellation has established that the design is not subject to 
protection under this chapter, the Administrator shall order the 
registration stricken from <<NOTE: Publication.>> the record. 
Cancellation under this subsection shall be announced by publication, 
and notice of the Administrator's final determination with respect to 
any application for cancellation shall be sent to the applicant and to 
the owner of record.

``Sec. 1314. Certification of registration

    ``Certificates of registration shall be issued in the name of the 
United States under the seal of the Office of the Administrator and 
shall be recorded in the official records of the Office. The certificate 
shall state the name of the useful article, the date of filing of the 
application, the date of registration, and the date the design was made 
public, if earlier than the date of filing of the application, and shall 
contain a reproduction of the drawing or other pictorial representation 
of the design. If a description of the salient features of the design 
appears in the application, the description shall also appear in the 
certificate. A certificate of registration shall be admitted in any 
court as prima facie evidence of the facts stated in the certificate.

``Sec. 1315. Publication of announcements and indexes

    ``(a) Publications of the Administrator.--The Administrator shall 
publish lists and indexes of registered designs and cancellations of 
designs and may also publish the drawings or other pictorial 
representations of registered designs for sale or other distribution.
    ``(b) File of Representatives of Registered Designs.--The 
Administrator shall establish and maintain a file of the drawings or 
other pictorial representations of registered designs. The file shall be 
available for use by the public under such conditions as the 
Administrator may prescribe.

``Sec. 1316. Fees

    ``The Administrator shall by regulation set reasonable fees for the 
filing of applications to register designs under this chapter and for 
other services relating to the administration of this chapter, taking 
into consideration the cost of providing these services and the benefit 
of a public record.

``Sec. 1317. Regulations

    ``The Administrator may establish regulations for the administration 
of this chapter.

[[Page 112 STAT. 2913]]

``Sec. 1318. Copies of records

    ``Upon payment of the prescribed fee, any person may obtain a 
certified copy of any official record of the Office of the Administrator 
that relates to this chapter. That copy shall be admissible in evidence 
with the same effect as the original.

``Sec. 1319. Correction of errors in certificates

    ``The Administrator may, by a certificate of correction under seal, 
correct any error in a registration incurred through the fault of the 
Office, or, upon payment of the required fee, any error of a clerical or 
typographical nature occurring in good faith but not through the fault 
of the Office. Such registration, together with the certificate, shall 
thereafter have the same effect as if it had been originally issued in 
such corrected form.

``Sec. 1320. Ownership and transfer

    ``(a) Property Right in Design.--The property right in a design 
subject to protection under this chapter shall vest in the designer, the 
legal representatives of a deceased designer or of one under legal 
incapacity, the employer for whom the designer created the design in the 
case of a design made within the regular scope of the designer's 
employment, or a person to whom the rights of the designer or of such 
employer have been transferred. The person in whom the property right is 
vested shall be considered the owner of the design.
    ``(b) Transfer of Property Right.--The property right in a 
registered design, or a design for which an application for registration 
has been or may be filed, may be assigned, granted, conveyed, or 
mortgaged by an instrument in writing, signed by the owner, or may be 
bequeathed by will.
    ``(c) Oath or Acknowledgement of Transfer.--An oath or 
acknowledgment under section 1312 shall be prima facie evidence of the 
execution of an assignment, grant, conveyance, or mortgage under 
subsection (b).
    ``(d) Recordation of Transfer.--An assignment, grant, conveyance, or 
mortgage under subsection (b) shall be void as against any subsequent 
purchaser or mortgagee for a valuable consideration, unless it is 
recorded in the Office of the Administrator within 3 months after its 
date of execution or before the date of such subsequent purchase or 
mortgage.

``Sec. 1321. Remedy for infringement

    ``(a) In General.--The owner of a design is entitled, after issuance 
of a certificate of registration of the design under this chapter, to 
institute an action for any infringement of the design.
    ``(b) Review of Refusal To Register.--(1) Subject to paragraph (2), 
the owner of a design may seek judicial review of a final refusal of the 
Administrator to register the design under this chapter by bringing a 
civil action, and may in the same action, if the court adjudges the 
design subject to protection under this chapter, enforce the rights in 
that design under this chapter.
    ``(2) The owner of a design may seek judicial review under this 
section if--
            ``(A) the owner has previously duly filed and prosecuted to 
        final refusal an application in proper form for registration of 
        the design;

[[Page 112 STAT. 2914]]

            ``(B) the owner causes a copy of the complaint in the action 
        to be delivered to the Administrator within 10 days after the 
        commencement of the action; and
            ``(C) the defendant has committed acts in respect to the 
        design which would constitute infringement with respect to a 
        design protected under this chapter.

    ``(c) Administrator as Party to Action.--The Administrator may, at 
the Administrator's option, become a party to the action with respect to 
the issue of registrability of the design claim by entering an 
appearance within 60 days after being served with the complaint, but the 
failure of the Administrator to become a party shall not deprive the 
court of jurisdiction to determine that issue.
    ``(d) Use of Arbitration To Resolve Dispute.--The parties to an 
infringement dispute under this chapter, within such time as may be 
specified by the Administrator by regulation, may determine the dispute, 
or any aspect of the dispute, by arbitration. Arbitration shall be 
governed by title 9. The parties shall give notice of any arbitration 
award to the Administrator, and such award shall, as between the parties 
to the arbitration, be dispositive of the issues to which it relates. 
The arbitration award shall be unenforceable until such notice is given. 
Nothing in this subsection shall preclude the Administrator from 
determining whether a design is subject to registration in a 
cancellation proceeding under section 1313(c).

Sec. 1322. Injunctions

    ``(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

[[Page 112 STAT. 2915]]

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.

[[Page 112 STAT. 2916]]

``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.''.

SEC. 503. CONFORMING AMENDMENTS.

    (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''.


[[Page 112 STAT. 2917]]



    (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''.

SEC. 504. <<NOTE: 17 USC 1301 note.>> JOINT STUDY OF THE EFFECT OF THIS 
            TITLE.

    (a) In <<NOTE: Deadlines. Reports.>> 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).

[[Page 112 STAT. 2918]]

SEC. 505. <<NOTE: 17 USC 1301 note.>> EFFECTIVE DATE.

    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.

    Approved October 28, 1998.

LEGISLATIVE HISTORY--H.R. 2281 (S. 2037):
---------------------------------------------------------------------------

HOUSE REPORTS: Nos. 105-551, Pt. 1 (Comm. on the Judiciary) and Pt. 2 
(Comm. on Commerce) and 105-796 (Comm. of Commerce).
SENATE REPORTS: No. 105-190 accompanying S. 2037 (Comm. on the 
Judiciary).
CONGRESSIONAL RECORD, Vol. 144 (1998):
            Aug. 4, considered and passed House.
            Sept. 17, considered and passed Senate, amended, in lieu of 
                S. 2037.
            Oct. 8, Senate agreed to conference report.
            Oct. 12, House agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 34 (1998):
            Oct. 28, Presidential statement.

                                  <all>