Strike out all after the enacting clause and insert in lieu thereof 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 amend- ment 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. 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 revi- sions 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-exe- cuting 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 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 (2) The provisions of the Berne Convention shall not be enforceable in any (b) CERTAIN RIGHTS NOT AFFECTED.-The adherence of the United States to the (1) to claim authorship of the work; or (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 "A work is a 'Berne Convention work' if— "(1) in the case of an unpublished work, one or more of the authors is a national of a state adhering to the Berne Convention, or in the case of a published work, one or more of the authors is a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. "(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 |