57

§ 116. Scope of exclusive rights in nondramatic musical works: [Public] Compulsory licenses for public performances by means of coin-operated phonorecord players

(a) LIMITATION ON EXCLUSIVE RIGHT.-In the case of a nondramatic musical work embodied in a phonorecord, the performance of which is subject to this section as provided in section 116A, the exclusive right under clause (4) of section 106 to perform the work publicly by means of a coin-operated phonorecord player is limited as follows:

(1) the proprietor of the establishment in which the public performance takes place is not liable for infringement with respect to such public performance unless

(A) such proprietor is the operator of the phonorecord player; or

(B) such proprietor refuses or fails, within one month after receipt by registered or certified mail of a request, at a time during which the certificate required by clause (1)(C) of subsection (b) is not affixed to the phonorecord player, by the copyright owner, to make full disclosure, by registered or certified mail, of the identity of the operator of the phonorecord player.

(e) DEFINITIONS.-As used in this section and section 116A, the following terms and their variant forms mean the following: (1) A "coin-operated phonorecord player" is a machine or device that

(A) is employed solely for the performance of nondramatic musical works by means of phonorecords upon being activated by insertion of coins, currency, tokens, or other monetary units or their equivalent;

(B) is located in an establishment making no direct or indirect charge for admission;

(C) is accompanied by a list of the titles of all the musical works available for performance on it, which list is affixed to the phonorecord player or posted in the establishment in a prominent position where it can be readily examined by the public; and

(D) affords a choice of works available for performance and permits the choice to be made by the patrons of the establishment in which it is located.

§ 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.

(b) LIMITATION ON EXCLUSIVE RIGHT IF LICENSES NOT NEGOTIAT

ED.

(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 phono

58

record 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 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 licenses.

(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 coin-operated 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 ef fective 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 the 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

59

Berne Convention Implementation Act of 1988, the negotiated license 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; RENTENTION 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 sections 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 li

cense.

Sec.

CHAPTER 3-DURATION OF COPYRIGHT

301. Preemption with respect to other laws.

302. Duration of copyright: Works created on or after January 1, 1978.

303. Duration of copyright: Works created but not published or copyrighted before January 1, 1978.

304. Duration of copyright: Subsisting copyrights.

305. Duration of copyright: Terminal date.

§ 301. Preemption with respect to other laws

(a)

(e) The scope of Federal preemption under this section is not af fected by the adherence of the United States to the Berne Convention or the satisfaction of the obligations of the United States thereunder.

Sec.

CHAPTER 4-COPYRIGHT NOTICE, DEPOSIT, AND

REGISTRATION

401. Notice of copyright: Visually perceptible copies.

402. Notice of copyright: Phonorecords of sound recordings.

403. Notice of copyright: Publications incorporating United States Government

works.

404. Notice of copyright: Contributions to collective works.

[405. Notice of copyright: Omission of notice.

406. Notice of copyright: Error in name or date.]

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. 407. Deposit of copies or phonorecords for Library of Congress.

408. Copyright registration in general.

409. Application for copyright registration.

60

410. Registration of claim and issuance of certificate.

411. Registration as prerequisite to infringement suit.

412. Registration as prerequisite to certain remedies for infringement.

§ 401. Notice of copyright: Visually perceptible copies

(a) GENERAL REQUIREMENT.-Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section [shall] may be placed on all publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.

(b) FORM OF NOTICE.-[The notice appearing on the copies] If a notice appears on the copies, it shall consist of the following three elements:

(1) the symbol (the letter C in a circle), or the word "Copyright", or the abbreviation "Copr."; and

(2) The year of first publication of the work; in the case of compilations, or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and

(3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

(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).

§ 402. NOTICE OF COPYRIGHT: PHONORECORDS OF SOUND RECORDINGS (a) GENERAL REQUIREMENT.-Whenever a sound recording protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section [shall] may be placed on all publicly distributed phonorecords of the sound recording.

(b) FORM OF NOTICE.-[The notice appearing on the phonorecords] If a notice appears on the phonorecords, it shall consist of the followig three elements:

(1) the symbol P (the letter P in a circle); and

(2) the year of first publication of the sound recording; and (3) the name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner; if the producer of the sound recording is named on the phonorecord labels or containers, and if no other anme appears in con

61

junction with the notice, the producer's name shall be considered a part of the notice.

(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).

§ 403. Notice of copyright: Publications incorporating United States Government works

Whenever a work is published in copies or phonorecords consisting preponderantly of one or more works of the United States Government, [the notice of copyright provided by sections 401 or 402 shall also include a statement identifying, either affirmatively or negatively, those portions of the copies or phonorecords embodying any work or works protected under this title] such copies or phonorecords shall prominently display a statement identifying those portions of the copies or phonorecords that constitute a work of the United States Government, in accordance with regulations issued by the Copyright Office.

§ 404. Notice of copyright: Contributions to collective works

(a) A separate contribution to a collective work may bear its own notice of copyright, as provided by sections 401 through 403. However, a single notice applicable to the collective work as a whole is sufficient [to satisfy the requirements of sections 401 through 403] to invoke the provisions of section 401(d) or 402(d), as applicable with respect to the separate contributions it contains (not including advertisements inserted on behalf of persons other than the owner of copyright in the collective work), regardless of the ownership of copyright in the contributions and whether or not they have been previously published.

(b) [Where] 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, where the person named in a single notice applicable to a collective work as a whole is not the owner of copyright in a separate contribution that does not bear its own notice, the case is governed by the provisions of section 406(a).

§ 405. Notice of copyright: Omission of notice on certain copies and phonorecords

(a) EFFECT OF OMISSION ON COPYRIGHT.-[The] 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 omission of the copyright notice prescribed by sections 401 through 403 from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if