Copyright Basics

CHAPTER 11

SOUND RECORDINGS AND MUSIC VIDEOS

Section

§ 2319A. Unauthorized fixation of and trafficking in sound recordings and

music videos of live musical performances 4

(a) OFFENSE.-Whoever, without the consent of the performer or performers in-volved,

knowingly and for purposes of commercial advantage or private financial gain-

(1) fixes the sounds or sounds and images of a live musical performance in a

copy or phonorecord, or reproduces copies or phonorecords of such a performance

from an unauthorized fixation;

(2) transmits or otherwise communicates to the public the sounds or sounds and

images of a live musical performance; or

(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regard-less of whether the fixations occurred in the United States; shall be imprisoned for not more than 5 years or fined in the amount set forth in this title, or both, or if the offense is a second or subsequent offense, shall be imprisoned for not more than 10 years or fined in the amount set forth in this title, or both.

(b) FORFEITURE AND DESTRUCTION.-When a person is convicted of a violation of

subsection (a), the court shall order the forfeiture and destruction of any copies or

phonorecords created in violation thereof, as well as any plates, molds, matrices, mas-ters,

tapes, and film negatives by means of which such copies or phonorecords may be

made. The court may also, in its discretion, order the forfeiture and destruction of any

other equipment by means of which such copies or phonorecords may be reproduced,

taking into account the nature, scope, and proportionality of the use of the equipment in

the offense.

images of a live musical performance are fixed outside of the United States without the

4 A new section 2319A was added to chapter 113 of title 18, United States Code, by the Uruguay Round Agreements Act

of December 8, 1994, Pub. L. 103-465, 108 Stat. 4809, 4974.Section 2319A of title 18, United States Code, was amended by the Act of December 16, 1997, Pub. L. 105-147, 111 Stat. 2678, which redesignated subsections (d) and (e) as subsections (e) and (f), respectively, and inserted a new subsection (d). The amendatory act also directed the United States Sentencing

Commission to "ensure that the applicable guideline range for a defendant convicted of a crime against intellectual property...is sufficiently stringent to deter such a crime" and to "ensure that the guidelines provide for consideration of the retail value and quantity of the items with respect to which the crime against intellectual property was committed."·147 Copyright Law of the United States

Transitional and Supplementary Provisions to the Copyright Act of 1976

consent of the performer or performers involved, such copies or phonorecords are subject

to seizure and forfeiture in the United States in the same manner as property im-ported

in violation of the customs laws. The Secretary of the Treasury shall, not later

than 60 days after the date of the enactment of the Uruguay Round Agreements Act,

issue regulations to carry out this subsection, including regulations by which any per-former

may, upon payment of a specified fee, be entitled to notification by the United

States Customs Service of the importation of copies or phonorecords that appear to

consist of unauthorized fixations of the sounds or sounds and images of a live musical

performance.

(d) VICTIM IMPACT STATEMENT.-

(1) During preparation of the presentence report pursuant to Rule 32(c) of the

Federal Rules of Criminal Procedure, victims of the offense shall be permitted to

submit, and the probation officer shall receive, a victim impact statement that iden-tifies

the victim of the offense and the extent and scope of the injury and loss suf-fered

by the victim, including the estimated economic impact of the offense on that

victim.

(2) Persons permitted to submit victim impact statements shall include-

(A) producers and sellers of legitimate works affected by conduct involved

in the offense;

(B) holders of intellectual property rights in such works; and

(e) DEFINITIONS.-As used in this section-

(1) the terms "copy", "fixed", "musical work", "phonorecord", "reproduce",

"sound recordings", and "transmit" mean those terms within the meaning of title

17; and

(2) the term "traffic in" means transport, transfer, or otherwise dispose of, to

another, as consideration for anything of value, or make or obtain control of with

intent to transport, transfer, or dispose of.

(f) APPLICABILITY.-This section shall apply to any Act or Acts that occur on or after

the date of the enactment of the Uruguay Round Agreements Act.

SEC.112. All causes of action that arose under title 17 before January 1, 1978, shall

be governed by title 17 as it existed when the cause of action arose.

SEC. 113. (a) The Librarian of Congress (hereinafter referred to as the "Librarian") shall

establish and maintain in the Library of Congress a library to be known as the American

Television and Radio Archives (hereinafter referred to as the "Archives"). The purpose of

the Archives shall be to preserve a permanent record of the television and radio programs

which are the heritage of the people of the United States and to provide access to such

programs to historians and scholars without encouraging or causing copyright infringe-ment.

(1) The Librarian, after consultation with interested organizations and individu-als,

shall determine and place in the Archives such copies and phonorecords of

television and radio programs transmitted to the public in the United States and in·Transitional and Supplementary Provisions to the Copyright Act of 1976

other countries which are of present or potential public or cultural interest, histori-cal

significance, cognitive value, or otherwise worthy of preservation, including

copies and phonorecords of published and unpublished transmission programs-

(A) acquired in accordance with sections 407 and 408 of title 17 as amended

by the first section of this Act; and

(B) transferred from the existing collections of the Library of Congress; and

organizations, and individuals; and

(D) purchased from the owner thereof.

(2) The Librarian shall maintain and publish appropriate catalogs and indexes

of the collections of the Archives, and shall make such collections available for

study and research under the conditions prescribed under this section.

(b) Notwithstanding the provisions of section 106 of title 17 as amended by the first

section of this Act, the Librarian is authorized with respect to a transmission program

which consists of a regularly scheduled newscast or on-the-spot coverage of news

events and, under standards and conditions that the Librarian shall prescribe by

regulation-

(1) to reproduce a fixation of such a program, in the same or another tangible

form, for the purposes of preservation or security or for distribution under the con-ditions

of clause (3) of this subsection; and

(2) to compile, without abridgment or any other editing, portions of such fixa-tions

according to subject matter, and to reproduce such compilations for the pur-pose

of clause (1) of this subsection; and

(3) to distribute a reproduction made under clause (1) or (2) of this subsection-

(A) by loan to a person engaged in research; and

(B) for deposit in a library or archives which meets the requirements of sec-tion

108(a) of title 17 as amended by the first section of this Act, in either case

for use only in research and not for further reproduction or performance.

authority of this section shall not be liable in any action for copyright infringe-ment

committed by any other person unless the Librarian or such employee

knowingly participated in the act of infringement committed by such person.

Nothing in this section shall be construed to excuse or limit liability under title

17 as amended by the first section of this Act for any act not authorized by that

title or this section, or for any act performed by a person not authorized to act

under that title or this section.

(d) This section may be cited as the "American Television and Radio Archives Act".

SEC. 114. There are hereby authorized to be appropriated such funds as may be neces-sary

to carry out the purposes of this Act.

SEC. 115. If any provision of title 17, as amended by the first section of this Act, is

declared unconstitutional, the validity of the remainder of this title is not affected.·Transitional and Supplementary Provisions to the Copyright Act of 1976

149 Copyright Law of the United States

APPENDIX

I. Berne Convention Implementation Act of 1988

(Act of October 31, 1988, Pub. L. 100-568, 102 Stat. 2853)

Note: The following sections of the Berne Convention Implementation Act of 1988

did not amend the text of Title 17, United States Code, but are reproduced below

because of their importance.

______________________________________________________

SEC. 2. 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 (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 and no further rights or interests shall be recog-nized

or created for that purpose.

SEC. 3. CONSTRUCTION OF THE BERNE CONVENTION.

(a) RELATIONSHIP WITH DOMESTIC LAW.-The provisions of the Berne Convention-

(1) shall be given effect under title 17, as amended by this Act, and any other

relevant provision of Federal or State law, including the common law; and

(2) shall not be enforceable in any action brought pursuant to the provisions of

the Berne Convention itself.

(b) CERTAIN RIGHTS NOT AFFECTED.-The provisions of the Berne Convention, the

adherence of the United States thereto, and satisfaction of United States obligations

thereunder, do not expand or reduce any right of an author of a work, whether claimed

under Federal, State, or the common law-

(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. 12. 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.

Appendix·Appendix

SEC. 13. EFFECTIVE DATE: EFFECT ON PENDING CASES.

(a) EFFECTIVE DATE.-This Act and the amendments made by this Act take effect on

the date on which the Berne Convention (as defined in section 101 of title 17, United

States Code) enters into force with respect to the United States.1

(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.

II. Uruguay Round Agreements Act

(Act of December 8, 1994, Pub. L. 103-465, 108 Stat. 4809, 4973)

Note: The following sections of the Uruguay Round Agreements Act of December 8,

1994, did not amend the text of Title 17, United States Code, but are reproduced here

because of their importance.

SEC. 2. DEFINITIONS.

For purposes of this Act:

(1) GATT 1947; GATT 1994.-

(A) GATT 1947.-The term "GATT 1947" means the General Agreement

on Tariffs and Trade, dated October 30, 1947, annexed to the Final Act Adopted

at the Conclusion of the Second Session of the Preparatory Committee of the

United Nations Conference on Trade and Employment, as subsequently recti-fied,

amended, or modified by the terms of legal instruments which have entered

into force before the date of entry into force of the WTO Agreement.

(B) GATT 1994.-The term "GATT 1994" means the General Agreement

on Tariffs and Trade annexed to the WTO Agreement.

(2) HTS.-The term "HTS" means the Harmonized Tariff Schedule of the United

States.

(3) INTERNATIONAL TRADE COMMISSION.-The term "International Trade

Commission" means the United States International Trade Commission.

(4) MULTILATERAL TRADE AGREEMENT.-The term "multilateral trade agreement"

means an agreement described in section 101(d) of this Act (other than an agree-ment

described in paragraph (17) or (18) of such section).

(5) SCHEDULE XX.-The term "Schedule XX" means Schedule XX United States

of America annexed to the Marrakesh Protocol to the GATT 1994.

(6) TRADE REPRESENTATIVE.-The term "Trade Representative" means the United

States Trade Representative.

(7) URUGUAY ROUND AGREEMENTS.-The term "Uruguay Round Agreements"

means the agreements approved by the Congress under section 101(a)(1).

(8)WORLD TRADE ORGANIZATION AND WTO. -The terms "World Trade Organiza-tion"

and "WTO" mean the organization established pursuant to the WTO Agreement.

1 The Berne Convention as so defined entered into force with respect to the United States of America on March 1, 1989.·151 Copyright Law of the United States

Appendix

(9) WTO AGREEMENT.-The term "WTO Agreement" means the Agreement Es-tablishing

the World Trade Organization entered into on April 15, 1994.

(10) WTO MEMBER AND WTO MEMBER COUNTRY.-The terms "WTO member"

and "WTO member country" mean a state, or separate customs territory (within the

meaning of Article XII of the WTO Agreement), with respect to which the United

States applies the WTO Agreement.

SEC. 101. APPROVAL AND ENTRY INTO FORCE OF THE URUGUAY ROUND AGREEMENTS.

(a) APPROVAL OF AGREEMENTS AND STATEMENT OF ADMINISTRATIVE ACTION.-Pursuant

to section 1103 of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C.

2903) and section 151 of the Trade Act of 1974 (19 U.S.C. 2191), the Congress ap-proves-

(1) the trade agreements described in subsection (d) resulting from the Uruguay

Round of multilateral trade negotiations under the auspices of the General Agree-ment

on Tariffs and Trade, entered into on April 15, 1994, and submitted to the

Congress on September 27, 1994; and

(2) the statement of administrative action proposed to implement the agree-ments

that was submitted to the Congress on September 27, 1994.

(b) ENTRY INTO FORCE.-At such time as the President determines that a sufficient

number of foreign countries are accepting the obligations of the Uruguay Round Agree-ments,

in accordance with article XIV of the WTO Agreement, to ensure the effective

operation of, and adequate benefits for the United States under, those Agreements, the

President may accept the Uruguay Round Agreements and implement article VIII of

the WTO Agreement.

annually such sums as may be necessary for the payment by the United States of its

share of the expenses of the WTO.

(d) TRADE AGREEMENTS TO WHICH THIS ACT APPLIES.-Subsection (a) applies to the

WTO Agreement and to the following agreements annexed to that Agreement:

(1) The General Agreement on Tariffs and Trade 1994.

(2) The Agreement on Agriculture.

(3) The Agreement on the Application of Sanitary and Phytsanitary Measures.

(4) The Agreement on Textiles and Clothing.

(5) The Agreement on Technical Barriers to Trade.

(6) The Agreement on Trade-Related Investment Measures.

(7) The Agreement on Implementation of Article VI of the General Agreement

on Tariffs and Trade 1994.

(8) The Agreement on Implementation of Article VII of the General Agreement

on Tariffs and Trade 1994.

(9) The Agreement on Preshipment Inspection.

(10) The Agreement on Rules of Origin.

(11) The Agreement on Import Licensing Procedures.

(12) The Agreement on Subsidies and Countervailing Measures.

II. Uruguay Round Agreements Act·Appendix

(13) The Agreement on Safeguards.

(14) The General Agreement on Trade in Services.

(15) The Agreement on Trade-Related Aspects of Intellectual Property Rights.

(16) The Understanding on Rules and Procedures Governing the Settlement of

Disputes.

(17) The Agreement on Government Procurement.

(18) The International Bovine Meat Agreement.

SEC. 102. RELATIONSHIP OF THE AGREEMENTS TO UNITED STATES LAW AND STATE LAW.

(a) RELATIONSHIP OF AGREEMENTS TO UNITED STATES LAW.-

(1) UNITED STATES LAW TO PREVAIL IN CONFLICT.-No provision of any of the Uruguay

Round Agreements, nor the application of any such provision to any person or

circumstance, that is inconsistent with any law of the United States shall have ef-fect.

(2) CONSTRUCTION.-Nothing in this Act shall be construed

(A) to amend or modify any law of the United States, including any law

relating to-

(i) the protection of human, animal, or plant life or health,

(ii) the protection of the environment, or

(iii) worker safety, or (B) to limit any authority conferred under any law

of the United States, including section 301 of the Trade Act of 1974, unless

specifically provided for in this Act.

(b) RELATIONSHIP OF AGREEMENTS TO STATE LAW. -

(1) FEDERAL-STATE CONSULTATION.-

(A) IN GENERAL.-Upon the enactment of this Act, the President shall, through

the intergovernmental policy advisory committees on trade established under

section 306(c)(2)(A) of the Trade and Tariff Act of 1984 (19 U.S.C. 2114c(2)(A)),

consult with the States for the purpose of achieving conformity of State laws

and practices with the Uruguay Round Agreements.

(B) FEDERAL-STATE CONSULTATION PROCESS.-The Trade Representative shall

establish within the Office of the United States Trade Representative a Federal-State

consultation process for addressing issues relating to the Uruguay Round

Agreements that directly relate to, or will potentially have a direct effect on, the

States. The Federal-State consultation process shall include procedures under

which

(i) the States will be informed on a continuing basis of matters under the

Uruguay Round Agreements that directly relate to, or will potentially have a

direct impact on, the States;

(ii) the States will be provided an opportunity to submit, on a continuing

basis, to the Trade Representative information and advice with respect to

matters referred to in clause (i); and

(iii) the Trade Representative will take into account the information and

advice received from the States under clause (ii) when formulating United

States positions regarding matters referred to in clause (i).

II. Uruguay Round Agreements Act·153 Copyright Law of the United States

Appendix

The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to

the Federal-State consultation process established by this paragraph.

(i) When a WTO member requests consultations with the United States

under Article 4 of the Understanding on Rules and Procedures Governing the

Settlement of Disputes referred to in section 101(d)(16) (hereafter in this

subsection referred to as the "Dispute Settlement Understanding") concern-ing

whether the law of a State is inconsistent with the obligations undertaken

by the United States in any of the Uruguay Round Agreements, the Trade

Representative shall notify the Governor of the State or the Governor's des-ignee,

and the chief legal officer of the jurisdiction whose law is the subject

of the consultations, as soon as possible after the request is received, but in

no event later than 7 days thereafter.

(ii) Not later than 30 days after receiving such a request for consulta-tions,

the Trade Representative shall consult with representatives of the State

concerned regarding the matter. If the consultations involve the laws of a

large number of States, the Trade Representative may consult with an appro-priate

group of representatives of the States concerned, as determined by

those States.

(iii) The Trade Representative shall make every effort to ensure that the

State concerned is involved in the development of the position of the United

States at each stage of the consultations and each subsequent stage of dispute

settlement proceedings regarding the matter. In particular, the Trade Repre-sentative

shall-

(I) notify the State concerned not later than 7 days after a WTO mem-ber

requests the establishment of a dispute settlement panel or gives no-tice

of the WTO member's decision to appeal a report by a dispute settle-ment

panel regarding the matter; and

(II) provide the State concerned with the opportunity to advise and

assist the Trade Representative in the preparation of factual information

and argumentation for any written or oral presentations by the United

States in consultations or in proceedings of a panel or the Appellate Body

regarding the matter.

(iv) If a dispute settlement panel or the Appellate Body finds that the law

of a State is inconsistent with any of the Uruguay Round Agreements, the

Trade Representative shall consult with the State concerned in an effort to

develop a mutually agreeable response to the report of the panel or the Ap-pellate

Body and shall make every effort to ensure that the State concerned is

involved in the development of the United States position regarding the re-sponse.

(D) NOTICE TO STATES REGARDING CONSULTATIONS ON FOREIGN SUBCENTRAL GOVERNMENT LAWS.-

(i) Subject to clause (ii), the Trade Representative shall, at least 30 days

before making a request for consultations under Article 4 of the Dispute Settle-

II. Uruguay Round Agreements Act·Appendix

ment Understanding regarding a subcentral government measure of another

WTO member, notify, and solicit the views of, appropriate representatives of

each State regarding the matter.

(ii) In exigent circumstances clause (i) shall not apply, in which case the

Trade Representative shall notify the appropriate representatives of each State

not later than 3 days after making the request for consultations referred to in

clause (i).

(2) LEGAL CHALLENGE.-

(A) IN GENERAL.-No State law, or the application of such a State law, may

be declared invalid as to any person or circumstance on the ground that the

provision or application is inconsistent with any of the Uruguay Round Agree-ments,

except in an action brought by the United States for the purpose of de-claring

such law or application invalid.

(B) PROCEDURES GOVERNING ACTION.-In any action described in subpara-graph

(A) that is brought by the United States against a State or any subdivision

thereof

(i) a report of a dispute settlement panel or the Appellate Body convened

under the Dispute Settlement Understanding regarding the State law, or the

law of any political subdivision thereof, shall not be considered as binding or

otherwise accorded deference;

(ii) the United States shall have the burden of proving that the law that is

the subject of the action, or the application of that law, is inconsistent with

the agreement in question;

(iii) any State whose interests may be impaired or impeded in the action

shall have the unconditional right to intervene in the action as a party, and the

United States shall be entitled to amend its complaint to include a claim or

cross-claim concerning the law of a State that so intervenes; and

(iv) any State law that is declared invalid shall not be deemed to have

been invalid in its application during any period before the court's judgment

becomes final and all timely appeals, including discretionary review, of such

judgment are exhausted.

United States brings an action described in subparagraph (A), the Trade Repre-sentative

shall provide a report to the Committee on Ways and Means of the

House of Representatives and the Committee on Finance of the Senate-

(i) describing the proposed action;

(ii) describing efforts by the Trade Representative to resolve the matter

with the State concerned by other means; and

(iii) if the State law was the subject of consultations under the Dispute

Settlement Understanding, certifying that the Trade Representative has sub-stantially

complied with the requirements of paragraph (1)(C) in connection

with the matter.

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Following the submission of the report, and before the action is brought, the

Trade Representative shall consult with the committees referred to in the pre-ceding

sentence concerning the matter.

(3) DEFINITION OF STATE LAW.-For purposes of this subsection-

(A) the term "State law" includes-

(i) any law of a political subdivision of a State; and

(ii) any State law regulating or taxing the business of insurance; and

(B) the terms "dispute settlement panel" and "Appellate Body" have the

meanings given those terms in section 121.

(1) LIMITATIONS.-No person other than the United States-

(A) shall have any cause of action or defense under any of the Uruguay Round

Agreements or by virtue of congressional approval of such an agreement, or

(B) may challenge, in any action brought under any provision of law, any

action or inaction by any department, agency, or other instrumentality of the

United States, any State, or any political subdivision of a State on the ground

that such action or inaction is inconsistent with such agreement.

(2) INTENT OF CONGRESS.-It is the intention of the Congress through paragraph

(1) to occupy the field with respect to any cause of action or defense under or in

connection with any of the Uruguay Round Agreements, including by precluding

any person other than the United States from bringing any action against any State

or political subdivision thereof or raising any defense to the application of State law

under or in connection with any of the Uruguay Round Agreements

(A) on the basis of a judgment obtained by the United States in an action

brought under any such agreement; or

(B) on any other basis.

(d) STATEMENT OF ADMINISTRATIVE ACTION.-The statement of administrative action

approved by the Congress under section 101(a) shall be regarded as an authoritative

expression by the United States concerning the interpretation and application of the

Uruguay Round Agreements and this Act in any judicial proceeding in which a ques-tion

arises concerning such interpretation or application.

SEC. 103. IMPLEMENTING ACTIONS IN ANTICIPATION OF ENTRY INTO FORCE;

REGULATIONS.

(a) IMPLEMENTING ACTIONS.-After the date of the enactment of this Act-

(1) the President may proclaim such actions, and

(2) other appropriate officers of the United States Government may issue such

regulations, as may be necessary to ensure that any provision of this Act, or amend-ment

made by this Act, that takes effect on the date any of the Uruguay Round

Agreements enters into force with respect to the United States is appropriately imple-mented

on such date. Such proclamation or regulation may not have an effective

date earlier than the date of entry into force with respect to the United States of the

agreement to which the proclamation or regulation relates.

(b) REGULATIONS.-Any interim regulation necessary or appropriate to carry out any

II. Uruguay Round Agreements Act·Appendix

action proposed in the statement of administrative action approved under section 101(a)

to implement an agreement described in section 101(d) (7), (12), or (13) shall be issued

not later than 1 year after the date on which the agreement enters into force with respect

to the United States.

Public Law 103-369-October 18, 1994

An Act To amend title 17, United States Code,

relating to the definition of a local service area of a primary transmitter,

and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America

in Congress assembled,