[DOCID: f:hr084.106]
From the House Reports Online via GPO Access
[wais.access.gpo.gov]

106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                     106-84
_______________________________________________________________________


           TECHNICAL CORRECTIONS TO COPYRIGHT AND OTHER LAWS

_______________________________________________________________________

 April 12, 1999.--Committed to the Committee of the Whole House on the
              State of the Union and ordered to be printed

                                _______


Mr. Coble, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                        [To accompany H.R. 1189]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the
bill (H.R. 1189) to make technical corrections in title 17,
United States Code, and other laws, having considered the same,
reports favorably thereon without amendment and recommends that
the bill do pass.

                           TABLE OF CONTENTS



                                                                 Page
Purpose and Summary........................................           1
Background and Need for the Legislation....................           2
Committee Consideration....................................           2
Committee on Government Reform and Oversight Findings......           2
New Budget Authority and Tax Expenditures..................           2
Congressional Budget Office Cost Estimate..................           2
Constitutional Authority Statement.........................           3
Section-by-Section Analysis and Discussion.................           3
Changes in Existing Law Made by the Bill, as Reported......           3

                          Purpose and Summary

    The purpose of H.R. 1189 is to make purely technical
amendments to the Copyright Act and other laws. It renumbers
sections and paragraphs. It clarifies section titles and
corrects clerical errors. H.R. 1189 does not make any
substantive changes in the law.

                Background and Need for the Legislation

    At the close of the 105th Congress, two major copyright
bills were signed into law. These laws, the ``Digital Millenium
Copyright Act'' and the ``Copyright Term Extension Act,''
contained major changes to the Copyright Act and other laws.
Subsequent to their passage, several technical errors were
identified. These errors would cause confusion if not
corrected. H.R. 1189 corrects these errors by making purely
technical amendments to the Copyright Act and other laws. H.R.
1189 does not make any substantive changes in the law.

                        Committee Consideration

    On March 24, 1999, the Committee met in open session and
ordered favorably reported the bill H.R. 1189 without amendment
by voice vote, a quorum being present.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 3(c)(4) of Rule XIII of the Rules of the House of
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budget authority or
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1189, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 403 of the Congressional Budget Act of
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 26, 1999.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1189, a bill to
make technical corrections in title 17, United States Code, and
other laws.
    If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark Hadley,
who can be reached at 226-2860.
            Sincerely,

                                            Dan L. Crippen. Director.
    Enclosure.

         cc: Honorable John Conyers, Jr.,
    Ranking Minority Member.
H.R. 1189--A bill to make technical corrections in title 17, United
        States Code, and other laws
    H.R. 1189 would make certain technical corrections to
copyright law concerning ephemeral recordings (those made and
used solely for transmitting or archiving a performance or
audiovisual display). The bill also would renumber and retitle
certain sections of law relating to patents and copyrights.
Finally, the bill would clarify that the Commissioner of
Patents is to be paid at level III of the executive schedule.
    CBO estimates that enacting H.R. 1189 would have no
significant impact on the federal budget. Because H.R. 1189
would not affect direct spending or receipts, pay-as-you-go
procedures would not apply. H.R. 1189 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would have no impact on the
budgets of state, local, or tribal governments.
    The CBO staff contact is Mark Hadley, who can be reached at
226-2860. This estimate was approved by Robert A. Sunshine,
Deputy Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of the Rule XIII of the Rules of
the House of Representatives, the Committee finds the authority
for this legislation in Article I, section 8, clause 8 of the
Constitution.

                      Section-By-Section Analysis

    Sec. 1. Technical Corrections to title 17, United States
Code. This section amends section 110(5) by changing the
numbering of paragraphs (A) and (B) to (i) and (ii). Section
112(e) is also amended by changing the numbering of paragraphs
(3) through (10) to (2) through (9) and the corresponding
references back to those paragraphs within the section.
Finally, chapter 5 is amended by redesignating the section 512
entitled ``Limitations on liability relating to material
online'' as section 513 and amending the table of contents at
the beginning of the chapter to reflect the change.
    Sec. 2. Other Technical Corrections. This section makes a
clerical amendment to title 28, United States Code, by amending
the heading of section 1400 to read as: ``Sec. 1400. Patents
and copyrights, mask works, and designs.'' This section also
eliminates a conflicting provision in section 5316 of title 5,
United States Code, by striking ``Commissioner of Patents,
Department of Commerce.''. Finally, this section makes a
clerical correction to title 35, United States Code, by
striking ``,United States Code'' in section 3(d).



         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):

                      TITLE 17, UNITED STATES CODE

            CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT

Sec. 110. Limitations on exclusive rights: Exemption of certain
                    performances and displays

            (1) * * *

           *       *       *       *       *       *       *

            (5)(A) except as provided in subparagraph (B),
        communication of a transmission embodying a performance
        or display of a work by the public reception of the
        transmission on a single receiving apparatus of a kind
        commonly used in private homes, unless--
                    [(A)] (i) a direct charge is made to see or
                hear the transmission; or
                    [(B)] (ii) the transmission thus received
                is further transmitted to the public;

           *       *       *       *       *       *       *

Sec. 112. Limitations on exclusive rights: Ephemeral recordings

    (a) * * *

           *       *       *       *       *       *       *

    (e) Statutory License.--(1) * * *

           *       *       *       *       *       *       *

    [(3)] (2) Notwithstanding any provision of the antitrust
laws, any copyright owners of sound recordings and any
transmitting organizations entitled to a statutory license
under this subsection may negotiate and agree upon royalty
rates and license terms and conditions for making phonorecords
of such sound recordings under this section 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.
    [(4)] (3) No later than 30 days after the date of the
enactment of the Digital Millennium Copyright Act, the
Librarian of Congress shall cause notice to be published in the
Federal Register of the initiation of voluntary negotiation
proceedings for the purpose of determining reasonable terms and
rates of royalty payments for the activities specified by
paragraph [(2)] (1) of this subsection during the period
beginning on the date of the enactment of such Act and ending
on December 31, 2000, or such other date as the parties may
agree. Such rates shall include a minimum fee for each type of
service offered by transmitting organizations. Any copyright
owners of sound recordings or any transmitting organizations
entitled to a statutory license under this subsection may
submit to the Librarian of Congress licenses covering such
activities with respect to such sound recordings. The parties
to each negotiation proceeding shall bear their own costs.
    [(5)] (4) In the absence of license agreements negotiated
under paragraph [(3)] (2), during the 60-day period commencing
6 months after publication of the notice specified in paragraph
[(4)] (3), and upon the filing of a petition in accordance with
section 803(a)(1), the Librarian of Congress shall, pursuant to
chapter 8, convene a copyright arbitration royalty panel to
determine and publish in the Federal Register a schedule of
reasonable rates and terms which, subject to paragraph [(6)]
(5), shall be binding on all copyright owners of sound
recordings and transmitting organizations entitled to a
statutory license under this subsection during the period
beginning on the date of the enactment of the Digital
Millennium Copyright Act and ending on December 31, 2000, or
such other date as the parties may agree. Such rates shall
include a minimum fee for each type of service offered by
transmitting organizations. The copyright arbitration royalty
panel shall establish rates that most clearly represent the
fees that would have been negotiated in the marketplace between
a willing buyer and a willing seller. In determining such rates
and terms, the copyright arbitration royalty panel shall base
its decision on economic, competitive, and programming
information presented by the parties, including--
            (A) * * *

           *       *       *       *       *       *       *

In establishing such rates and terms, the copyright arbitration
royalty panel may consider the rates and terms under voluntary
license agreements negotiated as provided in paragraphs [(3)
and (4)] (2) and (3). The Librarian of Congress shall also
establish requirements by which copyright owners may receive
reasonable notice of the use of their sound recordings under
this section, and under which records of such use shall be kept
and made available by transmitting organizations entitled to
obtain a statutory license under this subsection.
    [(6)] (5) License agreements voluntarily negotiated at any
time between 1 or more copyright owners of sound recordings and
1 or more transmitting organizations entitled to obtain a
statutory license under this subsection shall be given effect
in lieu of any determination by a copyright arbitration royalty
panel or decision by the Librarian of Congress.
    [(7)] (6) Publication of a notice of the initiation of
voluntary negotiation proceedings as specified in paragraph
[(4)] (3) shall be repeated, in accordance with regulations
that the Librarian of Congress shall prescribe, in the first
week of January 2000, and at 2-year intervals thereafter,
except to the extent that different years for the repeating of
such proceedings may be determined in accordance with paragraph
[(4)] (3). The procedures specified in paragraph [(5)] (4)
shall be repeated, in accordance with regulations that the
Librarian of Congress shall prescribe, upon filing of a
petition in accordance with section 803(a)(1), during a 60-day
period commencing on July 1, 2000, and at 2-year intervals
thereafter, except to the extent that different years for the
repeating of such proceedings may be determined in accordance
with paragraph [(4)] (3). The procedures specified in paragraph
[(5)] (4) shall be concluded in accordance with section 802.
    [(8)] (7)(A) Any person who wishes to make a phonorecord of
a sound recording under a statutory license in accordance with
this subsection may do so without infringing the exclusive
right of the copyright owner of the sound recording under
section 106(1)--
            (i) * * *

           *       *       *       *       *       *       *

    [(9)] (8) If a transmitting organization entitled to make a
phonorecord under this subsection is prevented from making such
phonorecord by reason of the application by the copyright owner
of technical measures that prevent the reproduction of the
sound recording, the copyright owner shall make available to
the transmitting organization the necessary means for
permitting the making of such phonorecord as permitted under
this subsection, if it is technologically feasible and
economically reasonable for the copyright owner to do so. If
the copyright owner fails to do so in a timely manner in light
of the transmitting organization's reasonable business
requirements, the transmitting organization shall not be liable
for a violation of section 1201(a)(1) of this title for
engaging in such activities as are necessary to make such
phonorecords as permitted under this subsection.
    [(10)] (9) Nothing in this subsection annuls, limits,
impairs, or otherwise affects in any way the existence or value
of any of the exclusive rights of the copyright owners in a
sound recording, except as otherwise provided in this
subsection, or in a musical work, including the exclusive
rights to reproduce and distribute a sound recording or musical
work, including by means of a digital phonorecord delivery,
under sections 106(1), 106(3), and 115, and the right to
perform publicly a sound recording or musical work, including
by means of a digital audio transmission, under sections 106(4)
and 106(6).

           *       *       *       *       *       *       *

             CHAPTER 5--COPYRIGHT INFRINGEMENT AND REMEDIES

Sec.
501.  Infringement of copyright.
     * * * * * * *
512.  Determination of reasonable license fees for individual
          proprietors.
[512.  Limitations on liability relating to material online.]
513.  Limitations on liability relating to material online.
     * * * * * * *

Sec. [512.] 513. Limitations on liability relating to material online

    (a) Transitory Digital Network Communications.--A service
provider shall not be liable for monetary relief, or, except as
provided in subsection ( j), for injunctive or other equitable
relief, for infringement of copyright by reason of the
provider's transmitting, routing, or providing connections for,
material through a system or network controlled or operated by
or for the service provider, or by reason of the intermediate
and transient storage of that material in the course of such
transmitting, routing, or providing connections, if--
            (1) * * *

           *       *       *       *       *       *       *

                              ----------

              SECTION 1400 OF TITLE 28, UNITED STATES CODE

[Patents and copyrights, mask works, and designs]

Sec. 1400. Patents and copyrights, mask works, and designs

    (a) * * *

           *       *       *       *       *       *       *

                              ----------

              SECTION 5316 OF TITLE 5, UNITED STATES CODE

Sec. 5316. Positions at level V

    Level V of the Executive Schedule applies to the following
positions, for which the annual rate of basic pay shall be the
rate determined with respect to such level under chapter 11 of
title 2, as adjusted by section 5318 of this title:
            Administrator, Bonneville Power Administration,
        Department of the Interior.

           *       *       *       *       *       *       *

            [Commissioner of Patents, Department of Commerce.]

           *       *       *       *       *       *       *

                              ----------

               SECTION 3 OF TITLE 35, UNITED STATES CODE

Sec. 3. Officers and employees

    (a) * * *

           *       *       *       *       *       *       *

    (d) The Commissioner of Patents and Trademarks shall be an
Assistant Secretary of Commerce and shall receive compensation
at the rate in effect for level III of the Executive Schedule
under section 5314 of title 5[, United States Code].

           *       *       *       *       *       *       *

                                <all>

