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1 when the prevailing party in an infringement action is the 2 owner of the infringed rights and is either a small business 3 concern, or an individual who is an author of the work. The 4 provisions of this subsection requiring the award of a reason5 able attorney's fee shall not apply if6

(A) the act of infringement is the reproduction of 7 the work in copies by a nonprofit educational institu8 tion, library, or archives, or by an employee or agent 9 of such institution, library, or archives acting within 10 the scope of his or her employment; or

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“(B) the act of infringement is the reproduction of

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a transmission program embodying a performance of a

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motion picture or other audiovisual work by a public broadcasting entity or a person acting as a part of the regular activities of a public broadcasting entity.

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"(2)(A) As used in this subsection, the term 'small busi

17 ness concern' means any business concern whose number of 18 employees, including those of its affiliates, does not exceed

19 five hundred persons. For purposes of this paragraph, con20 cerns are affiliates of each other when, either directly or indi

21 rectly, one concern controls or has the power to control the

22 other, or a third party or parties controls or has the power to 23 control both. The number of employees of a business concern 24 is the average number in a fiscal year of the persons em25 ployed during each of the pay periods of that fiscal year.

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1 Employees are those persons employed on a full time, part 2 time, or temporary basis.

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"(B) As used in this subsection, the term 'public broad

4 casting entity' has the meaning given that term in section

5 118(g) of this title.".

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101$T CONGRESS

1st SESSION

H. R. 3158

To amend title 17, United States Code, to permit the unlicensed viewing of videos

under certain conditions.

IN THE HOUSE OF REPRESENTATIVES

AUGUST 4, 1989 Mr. CARDIN (for himself and Mr. HOYER) introduced the following bill; which was

referred to the Committee on the Judiciary

A BILL To amend title 17, United States Code, to permit the unlicensed

viewing of videos under certain conditions.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 That section 110 of title 17, United States Code, is

4 amended

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(1) by redesignating paragraph (10) as paragraph (11), and

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(2) by inserting after paragraph (9) the following: "(10) performance or display of a work by means

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of a video cassette recorder and a television set of a

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kind commonly used in private homes, if

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(A) the performance or display occurs in a

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hospital, hospice, nursing home, retirement home,

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or other such group home;

“(B) such institution both provides long-term

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health or health-related care and services to indi

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viduals on a regular basis and serves as a tempo

[blocks in formation]

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“(D) the performance or display is not further transmitted by closed-circuit television or by

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any other means;".

Mr. KASTENMEIER. H.R. 3158, introduced by Congressman Cardin, amends the current copyright law to permit the public performance of works by using videocassettes in nursing homes and hospitals, under certain conditions, including a provision that no direct charge is made to see or hear the performance. Identical legislation has been introduced in the Senate by Senator William Roth.

I know that the congressional sponsors and interested parties, particularly the nursing homes and individual motion picture companies, have attempted to reach an amicable solution to the problem short of legislation. I commend them for their work and want all of the parties to know that this hearing is a cooperative endeavor designed to promote, rather than destroy or undermine, their efforts.

Hopefully, today's hearing will contribute several refinements to the positions already advanced. The subcommittee will make every effort to assist in formulating a fair and equitable solution to the issues.

I would like to yield to the gentleman from California, who I understand has been at an almost all-night session on the Clean Air Act in his other committee. The gentleman from California, Mr. Moorhead.

Mr. MOORHEAD. We got away about 1:30 a.m.

I want to thank you, Mr. Chairman, for holding these hearings. I commend my colleague from California, Howard Berman, for bringing this problem to our attention. I am very pleased, however, that most of the motion picture studios have agreed that they have no desire whatsoever to enforce any payment against the hospitals and senior citizen homes, and they certainly will continue to cooperate in every way possible.

Thousands of small copyright owners, many of whom live in my district, help keep the Nation in the forefront of copyright industries. Since our system of copyright is, by and large, self-enforcing, small businesses and individual copyright owners have to move to enforce their rights in many areas at great risk because of the high cost of litigation and the risk of their costs may not be recouped, even if the copyright owner prevails. H.R. 671 would alleviate some of that risk.

I also want to welcome the distinguished senior Senator from Delaware and I am looking forward to his testimony. It is good to see Frank Polk, who for many years provided this side with his highly valued counsel. I am hopeful that a solution may still be worked out without legislation for this whole problem.

Thank you, Mr. Chairman.

Mr. KASTENMEIER. If my other colleagues present have no opening statement, I would like to go to our first two witnesses, Representative Ben Cardin and Senator Bill Roth. Both of these individuals have previously served on the House Committee on the Judiciary.

Senator Roth was first elected to Congress in November, 1966, and served in the U.S. House of Representatives until 1970 when he was elected to the U.S. Senate, where he has served with distinction. I would also add that I was examining an invitation this morning to honor former Senator Gaylord Nelson, who has received the Ansel Adams award this year. It has previously been

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