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changed so that the average rates exceed shall be adjusted to reflect national monenational monetary inflation, no change in tary inflation or deflation or changes in the the rates established by section 111(d)(1)(B) average rates charged cable system subshall be permitted: And provided further,

scribers for the basic service of providing That no increase in the royalty fee shall be secondary transmissions to maintain the permitted based on any reduction in the av

real constant dollar value of the exemption erage number of distant signal equivalents provided by such section; and the royalty per subscriber. The Commission may con

rate specified therein shall not be subject to sider all factors relating to the maintenance

adjustment; and of such level of payments including, as an (3) to distribute royalty fees deposited with extenuating factor, whether the cable in the Register of Copyrights under sections dustry has been restrained by subscriber 111, 116, and 119(b), and to determine, in rate regulating authorities from increasing cases where controversy exists, the distributhe rates for the basic service of providing tion of such fees. secondary transmissions.

In determining whether a return to a copyright (B) In the event that the rules and regula- owner under section 116 is fair, appropriate tions of the Federal Communications Com weight shall be given tomission are amended at any time after April (i) the rates previously determined by the 15, 1976, to permit the carriage by cable sys Tribunal to provide a fair return to the copytems of additional television broadcast sig. right owner, and nals beyond the local service area of the pri

(ii) the rates contained in any license negomary transmitters of such signals, the roy tiated pursuant to section 116A of this title. alty rates established by section (c) As soon as possible after the date of enact111(d)(1)(B) may be adjusted to insure that ment of this Act, and no later than six months the rates for the additional distant signal following such date, the President shall publish equivalents resulting from such carriage are a notice announcing the initial appointments reasonable in the light of the changes ef provided in section 802, and shall designate an fected by the amendment to such rules and order of seniority among the initially-appointed regulations. In determining the reasonable commissioners for purposes of section 802(b). ness of rates proposed following an amend

(Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 ment of Federal Communications Commis

Stat. 2594; Pub. L. 99-397, 82(c), (d), Aug. 27, sion rules and regulations, the Copyright 1986. 100 Stat. 848: Pub. L. 100-568, $ 11(1), Oct. Royalty Tribunal shall consider, among 31, 1988, 102 Stat. 2860; Pub. L. 100-667, title II, other factors, the economic impact on copy. 820204), Nov. 16, 1988, 102 Stat. 3958.) right owners and users: Provided, That no adjustment in royalty rates shall be made

AMENDMENT OF SECTION under this subclause with respect to any For termination of amendment by section distant signal equivalent or fraction thereof 207 of Pub. L. 100-667, see Effective and represented by (i) carriage of any signal Termination Dates of 1988 Amendments permitted under the rules and regulations note below. of the Federal Communications Commission in effect on April 15, 1976, or the car

REFERENCES IN TEXT riage of a signal of the same type (that is, The date of enactment of this Act, referred to in independent. network, or noncommercial subsecs. (b)(2)(A) and (c), is Oct. 19, 1976. educational) substituted for such permitted

AMENDMENTS signal, or (ii) a television broadcast signal first carried after April 15, 1976, pursuant

1988–Subsec. (b). Pub. L. 100-568 inserted concludto an individual waiver of the rules and reg

ing provisions relating to determination of fairness of

a return to a copyright owner under section 116. ulations of the Federal Communications

Subsec. (b)(3). Pub. L. 100-667 temporarily substitutCommission, as such rules and regulations ed “, 116, and 119(b)” for “and 116”. See Effective and were in effect on April 15, 1976.

Termination Dates of 1988 Amendments note below. (C) In the event of any change in the

1986–Subsec. (b)(2)(A) to (C). Pub. L. 99-397, Š 2(c),

substituted "section 111(d)(1)(B)" for "section rules and regulations of the Federal Com

111(d)(2)(B)" in subpars. (A) to (C). munications Commission with respect to Subsec. (b)(2)(D). Pub. L. 99-397, § 2(d), which disyndicated and sports program exclusivity rected that subsec. (d)(2)(D) be amended by substitutafter April 15, 1976, the rates established by ing "section 111(d)(1XC) and (D)" for "section section 111(d)(1)(B) may be adjusted to 111(d)(2)(C) and (D)”, was executed by making the assure that such rates are reasonable in

substitution in subsec. (b)(2)(D) as the probable intent light of the changes to such rules and regu

of Congress. lations, but any such adjustment shall

EFFECTIVE AND TERMINATION DATES OF 1988 apply only to the affected television broad

AMENDMENTS cast signals carried on those systems affect

Amendment by Pub. L. 100-667 effective Jan. 1, ed by the change.

1989, and ceases to be effective Dec. 31, 1994, see sec(D) The gross receipts limitations estab tions 206 and 207 of Pub. L. 100-667, set out as an Eflished by section 111(d)(1)(C) and (D) 1 fective and Termination Dates note under section 119

of this title.

Amendment by Pub. L. 100-568 effective Mar. 1, "See 1986 Amendment note below.

1989, with any cause of action arising under this title

95-0070 - 89 - 6 (Vol. 7). QL3

before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100-568, set out as an Effective Date of 1988 Amendment note under section 101 of this title.

FEDERAL RULES OF CIVIL PROCEDURE Proof of official record, see rule 44, Title 28, Appendix, Judiciary and Judicial Procedure.

FEDERAL RULES OF EVIDENCE Hearsay exception, public records and reports, see rule 803, Title 28, Appendix, Judiciary and Judicial Procedure.

Self-authentication, domestic public documents under seal, see rule 902.

subject to the provisions of the Administrative Procedure Act of June 11, 1946, as amended (c. 324, 60 Stat. 237, title 5, United States Code, chapter 5, subchapter II and chapter 7).

(b) Every final determination of the Tribunal shall be published in the Federal Register. It shall state in detail the criteria that the Tribunal determined to be applicable to the particular proceeding, the various facts that it found relevant to its determination in that proceeding, and the specific reasons for its determination. (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2596.)

CROSS REFERENCES Authenticated copies of records and papers of department or agency admissible, see section 1733 of Title 28, Judiciary and Judicial Procedure.

Patents for designs, see section 171 et seq. of Title 35, Patents.

Trade-marks registrable on principal register, see section 1052 of Title 15, Commerce and Trade.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 802, 804, 810 of this title; title 47 section 545.

REFERENCES IN TEXT The Administrative Procedure Act of June 11, 1946, referred to in subsec. (a), was repealed and the provi. sions thereof were reenacted as subchapter II of chapter 5, and chapter 7, of Title 5, Government Organization and Employees, by Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 378.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 808, 809 of this title.

§ 802. Membership of the Tribunal

(a) The Tribunal shall be composed of five commissioners appointed by the President with the advice and consent of the Senate for a term of seven years each; of the first five members appointed, three shall be designated to serve for seven years from the date of the notice specified in section 801(c), and two shall be designated to serve for five years from such date, respectively. Commissioners shall be compensated at the highest rate now or hereafter prescribe 2 for grade 18 of the General Schedule pay rates (5 U.S.C. 5332).

(b) Upon convening the commissioners shall elect a chairman from among the commissioners appointed for a full seven-year term. Such chairman shall serve for a term of one year. Thereafter, the most senior commissioner who has not previously served as chairman shall serve as chairman for a period of one year, except that, if all commissioners have served a full term as chairman, the most senior commissioner who has served the least number of terms as chairman shall be designated as chairman.

(c) Any vacancy in the Tribunal shall not affect its powers and shall be filled, for the unexpired term of the appointment, in the same manner as the original appointment was made. (Pub. L. 94-553, title I, $ 101, Oct. 19, 1976, 90 Stat. 2596.)

8 804. Institution and conclusion of proceedings

(a) With respect to proceedings under section 801(b)(1) concerning the adjustment of royalty rates as provided in sections 115 and 116, and with respect to proceedings under section 801(b)(2)(A) and (D)

(1) on January 1, 1980, the Chairman of the Tribunal shall cause to be published in the Federal Register notice of commencement of proceedings under this chapter; and

(2) during the calendar years specified in the following schedule, any owner or user of a copyrighted work whose royalty rates are specified by this title, or by a rate established by the Tribunal, may file a petition with the Tribunal declaring that the petitioner requests an adjustment of the rate. The Tribunal shall make a determination as to whether the applicant has a significant interest in the royalty rate in which an adjustment is requested. If the Tribunal determines that the petitioner has a significant interest, the Chairman shall cause notice of this determination, with the reasons therefor, to be published in the Federal Register, together with notice of commencement of proceedings under this chapter.

(A) In proceedings under section 801(b)(2)(A) and (D), such petition may be filed during 1985 and in each subsequent fifth calendar year.

(B) In proceedings under section 801(b)(1) concerning the adjustment of royalty rates as provided in section 115, such petition may be filed in 1987 and in each subsequent tenth calendar year.

(C)(i) In proceedings under section 801(b)(1) concerning the adjustment of royalty rates as provided in section 115, such petition may be filed in 1990 and in each subsequent tenth calendar year, and at any time within 1 year after negotiated licenses authorized by section 116A are terminated

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 118, 801 of this title.

8 803. Procedures of the Tribunal

(a) The Tribunal shall adopt regulations, not inconsistent with law, governing its procedure and methods of operation. Except as otherwise provided in this chapter, the Tribunal shall be

2 So in original. Probably should be "prescribed".

AMENDMENTS 1988–Subsec. (a)2)(C). Pub. L. 100-568 amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: "In proceedings under section 801(b)(1) concerning the adjustment of royalty rates under section 116, such petition may be filed in 1990 and in each subsequent tenth calendar year."

Subsec. (d). Pub. L. 100-667 temporarily substituted "section 111, 116, or 119" for "sections 111 or 116". See Effective and Termination Dates of 1988 Amendments note below.

EFFECTIVE AND TERMINATION DATES OF 1988

AMENDMENTS Amendment by Pub. L. 100-667 effective Jan. 1, 1989, and ceases to be effective Dec. 31, 1994, see sections 206 and 207 of Pub. L. 100-667, set out as an Effective and Termination Dates note under section 119 of this title.

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100-568, set out as an Effective Date of 1988 Amendment note under section 101 of this title.

8 805. Staff of the Tribunal

or expire and are not replaced by subsequent agreements.

(ii) If negotiated licenses authorized by section 116A come into force so as to supersede previous determinations of the Tribunal, as provided in section 116A(d), but thereafter are terminated or expire and are not replaced by subsequent agreements, the Tribunal shall, upon petition of any party to such terminated or expired negotiated license agreement, promptly establish an interim royalty rate or rates for the public performance by means of a coin-operated phonorecord player of nondramatic musical works embodied in phonorecords which had been subject to the terminated or expired negotiated license agreement. Such interim royalty rate or rates shall be the same as the last such rate or rates and shall remain in force until the conclusion of proceedings to adjust the royalty rates applicable to such works, or until superseded by a new negotiated license agreement, as provided in

section 116A(d). (b) With respect to proceedings under subclause (B) or (C) of section 801(b)(2), following an event described in either of those subsections, any owner or user of a copyrighted work whose royalty rates are specified by section 111, or by a rate established by the Tribunal, may, within twelve months, file a petition with the Tribunal declaring that the petitioner requests an adjustment of the rate. In this event the Tribunal shall proceed as in subsection (a)(2), above. Any change in royalty rates made by the Tribunal pursuant to this subsection may be reconsidered in 1980, 1985, and each fifth calendar year thereafter, in accordance with the provisions in section 801(b)(2)(B) or (C), as the case may be.

(c) With respect to proceedings under section 801(b)(1), concerning the determination of reasonable terms and rates of royalty payments as provided in section 118, the Tribunal shall proceed when and as provided by that section.

(d) With respect to proceedings under section 801(b)(3), concerning the distribution of royalty fees in certain circumstances under section 111, 116, or 119, the Chairman of the Tribunal shall, upon determination by the Tribunal that a controversy exists concerning such distribution, cause to be published in the Federal Register notice of commencement of proceedings under this chapter.

(e) All proceedings under this chapter shall be initiated without delay following publication of the notice specified in this section, and the Tribunal shall render its final decision in any such proceeding within one year from the date of such publication. (Pub. L. 94-553, title I, $ 101, Oct. 19, 1976, 90 Stat. 2597; Pub. L. 100-568, § 11(2), Oct. 31, 1988, 102 Stat. 2860; Pub. L. 100-667, title II, $ 202(5), Nov. 16, 1988, 102 Stat. 3958.)

AMENDMENT OF SECTION For termination of amendment by section 207 of Pub. L. 100-667, see Effective and Termination Dates of 1988 Amendments note below.

(a) The Tribunal is authorized to appoint and fix the compensation of such employees as may be necessary to carry out the provisions of this chapter, and to prescribe their functions and duties.

(b) The Tribunal may procure temporary and intermittent services to the same extent as is authorized by section 3109 of title 5. (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2598.)

CROSS REFERENCES Computation and disbursement of pay of Tribunal personnel, see section 142g of Title 2, The Congress,

8 806. Administrative support of the Tribunal

(a) The Library of Congress shall provide the Tribunal with necessary administrative services, including those related to budgeting, accounting, financial reporting, travel, personnel, and procurement. The Tribunal shall pay the Library for such services, either in advance or by reimbursement from the funds of the Tribunal, at amounts to be agreed upon between the Librarian and the Tribunal.

(b) The Library of Congress is authorized to disburse funds for the Tribunal, under regulations prescribed jointly by the Librarian of Congress and the Tribunal and approved by the Comptroller General. Such regulations shall establish requirements and procedures under which every voucher certified for payment by the Library of Congress under this chapter shall be supported with a certification by a duly authorized officer or employee of the Tribunal, and shall prescribe the responsibilities and accountability of said officers and employees of the Tribunal with respect to such certifications. (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2598.)

8 807. Deduction of costs of proceedings

Before any funds are distributed pursuant to a final decision in a proceeding involving distri

Sec.

907.

bution of royalty fees, the Tribunal shall assess the reasonable costs of such proceeding. (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2598.) 8 808. Reports

In addition to its publication of the reports of all final determinations as provided in section 803(b), the Tribunal shall make an annual report to the President and the Congress concerning the Tribunal's work during the preceding fiscal year, including a detailed fiscal statement of account. (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2598.)

904. Duration of protection. 905. Exclusive rights in mask works. 906. Limitation on exclusive rights: reverse engi

neering; first sale. Limitation on exclusive rights: innocent in

fringement. 908. Registration of claims of protection. 909. Mask work notice. 910. Enforcement of exclusive rights. 911. Civil actions. 912. Relation to other laws. 913. Transitional provisions. 914. International transitional provisions.

CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in title 11 section 101; title 19 section 1337; title 28 sections 1338, 1498.

8 809. Effective date of final determinations

Any final determination by the Tribunal under this chapter shall become effective thirty days following its publication in the Federal Register as provided in section 803(b), unless prior to that time an appeal has been filed pursuant to section 810, to vacate, modify, or correct such determination, and notice of such appeal has been served on all parties who appeared before the Tribunal in the proceeding in question. Where the proceeding involves the distribution of royalty fees under sections : 111 or 116, the Tribunal shall, upon the expiration of such thirty-day period, distribute any royal. ty fees not subject to an appeal filed pursuant to section 810. (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2598.) 8 810. Judicial review

Any final decision of the Tribunal in a proceeding under section 801(b) may be appealed to the United States Court of Appeals, within thirty days after its publication in the Federal Register by an aggrieved party. The judicial review of the decision shall be had, in accordance with chapter 7 of title 5, on the basis of the record before the Tribunal. No court shall have jurisdiction to review a final decision of the Tribunal except as provided in this section. (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2598.)

8 901. Definitions
(a) As used in this chapter-

(1) a “semiconductor chip product” is the final or intermediate form of any product

(A) having two or more layers of metallic, insulating, or semiconductor material, deposited or otherwise placed on, or etched away or otherwise removed from, a piece of semiconductor material in accordance with a predetermined pattern; and

(B) intended to perform electronic circuitry functions;

(2) a “mask work” is a series of related images, however fixed or encoded

(A) having or representing the predetermined, three-dimensional pattern of metallic, insulating, or semiconductor material present or removed from the layers of a semiconductor chip product; and

(B) in which series the relation of the images to one another is that each image has the pattern of the surface of one form of the semiconductor chip product;

(3) a mask work is “fixed” in a semiconductor chip product when its embodiment in the product is sufficiently permanent or stable to permit the mask work to be perceived or reproduced from the product for a period of more than transitory duration;

(4) to “distribute” means to sell, or to lease, bail, or otherwise transfer, or to offer to sell, lease, bail, or otherwise transfer;

(5) to “commercially exploit" a mask work is to distribute to the public for commercial purposes a semiconductor chip product embodying the mask work; except that such term includes an offer to sell or transfer a semiconductor chip product only when the offer is in writing and occurs after the mask work is fixed in the semiconductor chip product;

(6) the “owner" of a mask work is the person who created the mask work, the legal representative of that person if that person is deceased or under a legal incapacity, or a party to whom all the rights under this chapter of such person or representative are transferred in accordance with section 903(b); except that, in the case of a work made within the scope of a person's employment, the owner is the employer for whom the person created the mask work or a party to whom all the rights under this chapter of the

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employer are transferred in accordance with section 903(b);

(7) an “innocent purchaser” is a person who purchases a semiconductor chip product in good faith and without having notice of protection with respect to the semiconductor chip product;

(8) having "notice of protection" means having actual knowledge that, or reasonable grounds to believe that, a mask work is protected under this chapter; and

(9) an "infringing semiconductor chip product" is a semiconductor chip product which is made, imported, or distributed in violation of the exclusive rights of the owner of a mask work under this chapter.

(b) For purposes of this chapter, the distribution or importation of a product incorporating a semiconductor chip product as a part thereof is a distribution or importation of that semiconductor chip product. (Added Pub. L. 98-620, title III, § 302, Nov. 8, 1984, 98 Stat. 3347.)

this chapter, the President may by proclamation extend protection under this chapter to mask works (i) of owners who are, on the date on which the mask works are registered under section 908, or the date on which the mask works are first commercially exploited anywhere in the world, whichever occurs first, nationals, domiciliaries, or sovereign authorities of that nation, or (ii) which are first commercially exploited in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection extended under any such proclamation.

(b) Protection under this chapter shall not be available for a mask work that,

(1) is not original; or

(2) consists of designs that are staple, commonplace, or familiar in the semiconductor industry, or variations of such designs, combined in a way that, considered as a whole, is not original.

(c) In no case does protection under this chapter for a mask work extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. (Added Pub. L. 98-620, title III, § 302, Nov. 8, 1984, 98 Stat. 3348, and amended Pub. L. 100-159, § 3, Nov. 9, 1987, 101 Stat. 900.)

SHORT TITLE Section 301 of title III of Pub. L. 98-620 provided that: “This title (enacting this chapter) may be cited as the 'Semiconductor Chip Protection Act of 1984'.”

AUTHORIZATION OF APPROPRIATIONS Section 304 of title III of Pub. L. 98-620 provided that: “There are authorized to be appropriated such sums as may be necessary to carry out the purposes of this title and the amendments made by this title (enacting this chapter)."

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 11 section 101.

AMENDMENTS 1987-Subsec. (a)(2). Pub. L. 100-159 inserted provision at end permitting the President to revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection extended under any such proclamation.

Ex. ORD. No. 12504. PROTECTION OF SEMICONDUCTOR

CHIP PRODUCTS

8 902. Subject matter of tion

(a)(1) Subject to the provisions of subsection (b), a mask work fixed in a semiconductor chip product, by or under the authority of the owner of the mask work, is eligible for protection under this chapter if

(A) on the date on which the mask work is registered under section 908, or is first commercially exploited anywhere in the world, whichever occurs first, the owner of the mask work is (i) a national or domiciliary of the United States, (ii) a national, domiciliary, or sovereign authority of a foreign nation that is a party to a treaty affording protection to mask works to which the United States is also a party, or (iii) a stateless person, wherever that person may be domiciled;

(B) the mask work is first commercially exploited in the United States; or

(C) the mask work comes within the scope of a Presidential proclamation issued under paragraph (2). (2) Whenever the President finds that a foreign nation extends, to mask works of owners who are nationals or domiciliaries of the United States protection (A) on substantially the same basis as that on which the foreign nation extends protection to mask works of its own nationals and domiciliaries and mask works first commercially exploited in that nation, or (B) on substantially the same basis as provided in

Ex. Ord. No. 12504, Jan. 31, 1985, 50 F.R. 4849, provided:

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Semiconductor Chip Protection Act of 1984 (17 U.S.C. 901 et seq.) and in order to provide for the orderly implementation of that Act, it is hereby ordered that, subject to the authority of the Director of the Office of Management and Budget under Executive Order No. 11030, as amended (44 U.S.C. 1505 note), requests for issuance by the Presi. dent of a proclamation extending the protection of Chapter 9 of title 17 of the United States Code against unauthorized duplication of semiconductor chip products to foreign nationals, domiciliaries, and sovereign authorities shall be presented to the President through the Secretary of Commerce in accordance with such regulations as the Secretary may, after consultation with the Secretary of State, prescribe and cause to be published in the Federal Register.

RONALD REAGAN.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 914 of this title.

§ 903. Ownership, transfer, licensing, and recordation

(a) The exclusive rights in a mask work subject to protection under this chapter belong to the owner of the mask work.

(b) The owner of the exclusive rights in a mask work may transfer all of those rights, or

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