2 B. The "Moral Rights" of Authors 1. Hearings in Washington, DC. 2. W.I.P.O. Roundtable Discussions in Geneva........ XIII. Changes in Existing Law Made by the Bill, as Reported The amendment is as follows: Strike out all after the enacting clause and insert in lieu thereof the following: SECTION 1. SHORT TITLE. This Act may be cited as the "Berne Convention Implementation Act of 1988". SEC. 2. REFERENCES TO TITLE 17, UNITED STATES CODE. Whenever in this Act an amendment or repeal is expressed in terms of an amendment to or repeal of a section or other provision, the reference shall be considered to be made to a section or other provision of title 17, United States Code. SEC. 3. DECLARATIONS. The Congress makes the following declarations: (1) The Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto, up to and including the revision done at Paris, France, in 1971, (hereafter in this Act referred to as the "Berne Convention") are not self-executing under the Constitution and laws of the United States. (2) The obligations of the United States under the Berne Convention may be performed only pursuant to appropriate domestic law. (3) The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention; no rights or interests in addition to those arising under such amendments or existing law shall be recognized or created for the purpose of satisfying such obligations. SEC. 4. CONSTRUCTION OF THE BERNE CONVENTION. (a) RELATIONSHIP WITH DOMESTIC LAW. (1) Subject to the provisions of subsection (b) of this section, section 104(c) of title 17, United States Code, as added by section 6(2) of this Act, and section 301(e) of title 17, United States Code, as added by section 7 of this Act, the provisions of the Berne Convention shall be given effect under title 17, United States Code, as amended by this Act, and any other relevant provision of Federal or State law, including the common law. (2) The provisions of the Berne Convention shall not be enforceable in any action brought pursuant to the provisions of the Berne Convention itself. (b) CERTAIN RIGHTS NOT AFFECTED.-The adherence of the United States to the Berne Convention, and satisfaction of United States obligations thereunder, do not expand or reduce any right of an author of a work (1) to claim authorship of the work; or 3 (2) to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the work, that would prejudice the author's honor or reputation. SEC. 5. DEFINITIONS. (a) PICTORIAL, Graphic, and SCULPTURAL WORKS.-Section 101 is amended in the definition of "Pictorial, graphic, and sculptural works" by striking out in the first sentence "technical drawings, diagrams, and models" and inserting in lieu thereof "diagrams, models, and technical drawings, including architectural plans". (b) BERNE CONVENTION AND BERNE CONVENTION WORK.-Section 101 is amended by inserting after the definition of "audiovisual works" the following: "The 'Berne Convention' is the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto, up to and including the revision done at Paris, France, in 1971. "A work is a 'Berne Convention work' if— "(1) in the case of an unpublished work, one or more of the authors is a national of a state adhering to the Berne Convention, or in the case of a published work, one or more of the authors is a national of a state adhering to the Berne Convention on the date of first publication; "(2) the work was first published in a state adhering to the Berne Convention, or was simultaneously published in a state adhering to the Berne Convention and in a foreign nation that does not adhere to the Berne Convention; “(3) in the case of an audiovisual work "(A) if one or more of the authors is a legal entity, that author has its headquarters in a state adhering to the Berne Convention; or "(B) if one or more of the authors is an individual, that author is domiciled, or has his or her habitual residence in, a state adhering to the Berne Convention; or "(4) in the case of a pictorial, graphic, or sculptural work, such work is incorporated in a building or other structure located in a state adhering to the Berne Convention. For purposes of paragraph (1), an author who is domiciled in or has his or her habitual residence in, a state adhering to the Berne Convention is considered to be a national of that state. For purposes of paragraph (2), a work is considered to have been simultaneously published in two or more nations if its dates of publication are within 30 days of one another.". SEC. 6. NATIONAL ORIGIN. Section 104 is amended (1) in subsection (b)— (A) by redesignating paragraph (4) as paragraph (5); and "(4) the work is a Berne Convention work; or"; and (2) by adding at the end the following: "(c) EFFECT OF BERNE CONVENTION.-No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention or the adherence of the United States thereto.". SEC. 7. PREEMPTION WITH RESPECT TO OTHER LAWS. Section 301 of title 17, United States Code, is amended by adding at the end thereof the following new subsection: "(e) The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of the obligations of the United States thereunder.". SEC. 8. SCOPE OF EXCLUSIVE RIGHTS IN NONDRAMATIC MUSICAL WORKS. (a) NEGOTIATED LICENSES.-Chapter 1 is amended by inserting after section 116 the following new section: "§ 116A. Negotiated licenses for public performances by means of coin-operated phonorecord players "(a) APPLICABILITY OF SECTION.-This section applies to any nondramatic musical work embodied in a phonorecord. 4 "(b) LIMITATION ON EXCLUSIVE RIGHT IF LICENSES NOT NEGOTIATED.— "(1) APPLICABILITY.-In the case of a work to which this section applies, the exclusive right under clause 4 of section 106 to perform the work publicly by means of a coin-operated phonorecord player is limited by section 116 to the extent provided in this section. "(2) DETERMINATION BY COPYRIGHT ROYALTY TRIBUNAL.-The Copyright Royalty Tribunal, at the end of the 1-year period beginning on the effective date of the Berne Convention Implementation Act of 1988, and periodically thereafter to the extent necessary to carry out subsection (f), shall determine whether or not negotiated licenses authorized by subsection (c) are in effect so as to provide permission to use a quantity of musical works not substantially smaller than the quantity of such works performed on coin-operated phonorecord players during the 1-year period ending on the effective date of that Act. If the Copyright Royalty Tribunal determines that such negotiated licenses are not so in effect, the Tribunal shall, upon making the determination, publish the determination in the Federal Register. Upon such publication, section 116 shall apply with respect to musical works that are not the subject of such negotiated li censes. "(c) NEGOTIATED LICENSES.— "(1) AUTHORITY FOR NEGOTIATIONS.-Any owners of copyright in works to which this section applies and any operators of coin-operated phonorecord players may negotiate and agree upon the terms and rates of royalty payments for performance of such works 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. "(2) ARBITRATION.-Parties to such a negotiation, within such time as may be specified by the Copyright Royalty Tribunal by regulation, may determine the result of the negotiation by arbitration. Such arbitration shall be governed by the provisions of title 9, to the extent such title is not inconsistent with this section. The parties shall give notice to the Copyright Royalty Tribunal of any determination reached by arbitration and any such determination shall, as between the parties to the arbitration, be dispositive of the issues to which it relates. "(d) LICENSE AGREEMENTS SUPERIOR TO CRT DETERMINATIONS.-License agreements between one or more copyright owners and one or more operators of coinoperated phonorecord players, which are negotiated in accordance with subsection (c), shall be given effect in lieu of any otherwise applicable determination by the Copyright Royalty Tribunal. "(e) NEGOTIATION SCHEDULE.-Not later than 60 days after the effective date of the Berne Convention Implementation Act of 1988, if the Chairman of the Copyright Royalty Tribunal has not received notice, from copyright owners and operators of coin-operated phonorecord players referred to in subsection (c)(1), of the date and location of the first meeting between such copyright owners and such operators to commence negotiations authorized by subsection (c), the Chairman shall announce the date and location of such meeting. Such meeting may not be held more than 90 days after the effective date of that Act. "(f) COPYRIGHT ROYALTY TRIBunal to SuspeND VARIOUS ACTIVITIES.-The Copyright Royalty Tribunal shall not conduct any ratemaking activity with respect to coin-operated phonorecord players unless, at any time more than one year after the effective date of the Berne Convention Implementation Act of 1988, the negotiated licenses adopted by the parties under this section do not provide permission to use a quantity of musical works not substantially smaller than the quantity of such works performed on coin-operated phonorecord players during the 1-year period ending on the effective date of that Act. "(g) TRANSITION PROVISIONS; RETENTION OF COPYRIGHT ROYALTY TRIBUNAL JURISDICTION.-Until such time as licensing provisions are determined by the parties under this section, the terms of the compulsory license under section 116, with respect to the public performance of nondramatic musical works by means of coin-operated phonorecord players, which is in effect on the day before the effective date of the Berne Convention Implementation Act of 1988, shall remain in force. If a negotiated license authorized by this section comes into force so as to supersede previous determinations of the Copyright Royalty Tribunal, as provided in subsection (d), but thereafter is terminated or expires and is not replaced by another licensing agreement, then section 116 shall be effective with respect to musical works that were the subject of the terminated or expired license.". (b) Technical and ConforMING AMENDMENTS. (1) Section 116 is amended - 5 (A) in the section caption by striking out "Public" and inserting in lieu thereof "Compulsory licenses for public"; (B) in subsection (a) in the matter preceding paragraph (1), by inserting after "phonorecord," the following: "the performance of which is subject to this section as provided in section 116A,"; and (C) in subsection (e), by inserting "and section 116A" after "As used in this section". (2) The table of sections at the beginning of chapter 1 is amended by striking out the item relating to section 116 and inserting in lieu thereof the following "116. Scope of exclusive rights in nondramatic musical works: Compulsory licenses for public performances by means of coin-operated phonorecord players. "116A. Negotiated licenses for public performances by means of coin-operated phonorecord players.". SEC. 9. NOTICE OF COPYRIGHT. (a) VISUALLY PERCEPTIBLE COPIES.-Section 401 is amended (1) in subsection (a) by striking out “shall" and inserting in lieu thereof "may"; (2) in subsection (b) by striking out "The notice appearing on the copies" and inserting in lieu thereof "If a notice appears on the copies, it"; and (3) by adding at the end the following: "(d) EVIDENTIARY WEIGHT OF NOTICE.-If a notice of copyright in the form specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2).". (b) PHONORECORDS OF SOUND RECORDINGS.-Section 402 is amended (1) in subsection (a) by striking out "shall" and inserting in lieu thereof "may"; (2) in subsection (b) by striking out "The notice appearing on the phonorecords" and inserting in lieu thereof "If a notice appears on the phonorecords, it"; and (3) by adding at the end the following: "(d) EVIDENTIARY WEIGHT OF NOTICE.-If a notice of copyright in the form specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages except as provided in the last sentence of section 504(c)(2).”. (c) PUBLICATIONS INCORPORATING UNITED STATES GOVERNMENT WORKS.-Section 403 is amended by striking out "the notice of copyright" and all that follows through "title" and inserting in lieu thereof "such copies or phonorecords shall prominently display a statement identifying those portions of the copies or phonore cords that constitute a work of the United States Government, in accordance with regulations issued by the Copyright Office". (d) CONTRIBUTIONS TO COLLECTIVE WORKS.-Section 404 is amended (1) in subsection (a) by striking out "to satisfy the requirements of sections 401 through 403" and inserting in lieu thereof "to invoke the provisions of section 401(d) or 402(d), as applicable"; and (2) in subsection (b) by striking out "Where" and inserting in lieu thereof "With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Imple mentation Act of 1988, where". (e) OMISSION OF NOTICE.-Section 405 is amended (1) in the section caption by inserting "on certain copies and phonorecords" after "notice"; (2) in subsection (a) by striking out "The" and inserting in lieu thereof "With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, the"; and (3) in subsection (b) by inserting "before the effective date of the Berne Convention Implementation Act of 1988" after "has been omitted". (f) ERROR IN NAME OR DATE.-Section 406 is amended (1) in the section caption by inserting "on certain copies of phonorecords" after "date"; (2) in subsection (a) by striking out "Where" and inserting in lieu thereof "With respect to copies and phonorecords publicly distributed by authority of 6 the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, where"; (3) in subsection (b) by inserting "before the effective date of the Berne Convention Implementation Act of 1988" after "distributed"; (4) in subsection (c)— (A) by inserting "before the effective date of the Berne Convention Implementation Act of 1988" after "publicly distributed"; and (B) by inserting after "405" the following: "as in effect on the day before the effective date of the Berne Convention Implementation Act of 1988". (g) CLERICAL Amendment.-The table of sections at the beginning of chapter 4 is amended by striking out the items relating to sections 405 and 406 and inserting in lieu thereof the following: "405. Notice of copyright: Omission of notice on certain copies and phonorecords. "406. Notice of copyright: Error in name or date on certain copies and phonorecords.". SEC. 10. DEPOSIT OF COPIES ON PHONORECORDS FOR LIBRARY OF CONGRESS. Section 407(a) is amended by striking out "with notice of copyright". SEC. 11. COPYRIGHT REGISTRATION. Section 408 is amended (1) in the second sentence of subsection (a) by striking out "Subject to the provisions of section 405(a), such" and inserting in lieu thereof "Such"; and (2) in subsection (c)(2)— (A) by striking out "under all of the following conditions—” and inserting in lieu thereof "under the following conditions:"; (B) by striking out subparagraph (A); and (C) by redesignating subparagraphs (B) and (C) as subparagraphs (A) and (B), respectively. SEC. 12. COPYRIGHT ROYALTY TRIBUNAL. (a) DETERMINATIONS CONCERING COPYRIGHT ROYALTY RATES.-Section 801(b) is amended by adding at the end the following: "In determining, under paragraph (1)(B), whether a return to a copyright owner under section 116 is fair, substantial deference shall be given to "(I) the rates in effect on the day before the effective date of the Berne Convention Implementation Act of 1988, and "(II) the rates contained in any license negotiated under section 116A(c).". (b) PETITIONS FOR ADJUSTMENT OF RATES.-Section 804(a)(2)(C) is amended to read as follows: "(C) In proceedings under section 801(b)(1) concerning the adjustment of royalty rates under section 116 "(i) such petition may be filed in 1990 and in each subsequent tenth calendar year, or "(ii) if no petition is filed in 1990 on account of the applicability of negotiated licenses under section 116A, and thereafter section 116 becomes effective with respect to musical works under subsection (b)(2) or (g) of section 116A, then a petition under this paragraph may be filed in the year in which section 116 becomes so effective and in each subsequent tenth calendar year. If clause (ii) becomes applicable, then clause (i) shall thereafter no longer be effective.". SEC. 13. WORKS IN THE PUBLIC DOMAIN. Title 17, United States Code, as amended by this Act, does not provide copyright protection for any work that is in the public domain in the United States. SEC. 14. EFFECTIVE DATE; EFFECT ON PENDING CASES. (a) EFFECTIVE DATE.-This Act and the amendments made by this Act take effect on the day after the date on which the Berne Convention enters into force with respect to the United States. (b) EFFECT ON Pending Cases.-Any cause of action arising under title 17, United States Code, before the effective date of this Act shall be governed by the provisions of such title as in effect when the cause of action arose. I. PURPOSE OF THE LEGISLATION The purpose of the legislation is to allow the United States to join the Berne Convention for the Protection of Literary and Artis |