Coalition for Networked Information
Information Policies: A Compilation of Position Statements, Principles,
Statutes, and Other Pertinent Statements
U.S. Laws, Statutes
Berne Convention Implementation Act of 1988
Source: Berne Convention Implementation Act of 1988, 17 USC 101
note. United States Code Congressional and Administrative News,
100th Congress–Second Session, Volume 2, West Publishing Co., St.
Paul, Minn., 102 Stat. 2853-2861.
(An Act to amend title 17, United States Code, to implement the Berne
Convention for the Protection of Literary and Artistic Works, as revised
at Paris on July 24, 1971, and for other purposes.)
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled.
Section 1. Short Title and References to Title 17, United States Code.
(a) Short Title.–This Act, may be cited as the “Berne Convention
Implementation Act of 1988”.
(b) References to Title 17, United States Code.–Whenever in this Act
an amendment or repeal is expressed in terms of an amendment to or a 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.
Section 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 recognized or created for that
purpose.
Section 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 no 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.
Section 4. Subject Matter and Scope of Copyrights.
(a) Subject and Scope.–Chapter 1 is amended–
(1) in section 101–
(A) 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) 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 8, 1886, and all
acts, protocols, and revisions thereto.
“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 nation
adhering to the Berne Convention, or in the case of a
published work, one or more of the authors is a
national of a nation adhering to the Berne Convention
on the date of first publication;
“(2) the work was first published in a nation
adhering to the Berne Convention, or was
simultaneously first published in a nation 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 the author has its
headquarters in a nation 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
nation adhering to the Berne Convention;
or
“(4) in the case of a pictorial, graphic, or
sculptural work that is incorporated in a building or
other structure, the building or structure is located in
a nation 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 nation
adhering to the Berne Convention is considered to be a national
of that nation. 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,”; and
(C) by inserting after the definition of “Copyright
owner”, the following:
“The ‘country of origin’ of a Berne Convention work, for
purposes of section 411, is the United States if–
“(1) in the case of a published work, the work
is first published–
“(A) in the United States;
“(B) simultaneously in the United States
and another nation or nations adhering to the Berne
Convention, whose law grants a term of copyright
protection that is the same as or longer than the term
provided in the United States;
“(C) simultaneously in the United States
and a foreign nation that does not adhere to the Berne
Convention; or
“(D) in a foreign nation that does not
adhere to the Berne Convention, and all of the authors
of the work are nationals, domiciliaries, or habitual
residents of, or in the case of an audiovisual work
legal entities with headquarters in, the United States;
“(2) in the case of an unpublished work, all the
authors of the work are nationals, domiciliaries, or
habitual residents of the United States, or, in the case of an
unpublished audiovisual work, all the authors are legal
entities with headquarters in the United States; or
“(3) in the case of a pictorial, graphic, or
sculptural work incorporated in a building or structure, the
building or structure is located in the United States.
For the purposes of section 411, the ‘country of origin’ of any other
Berne Convention work is not the United States.”;
(2) in section 104(b)–
(A) by redesignating paragraph (4) as paragraph (5); and
(B) by inserting after paragraph (3) the following new
paragraph: “(4) the work is a Berne Convention work; or”;
(3) in section 104 by adding at the end thereof 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
or, 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.”; and
(4) by inserting after section 116 the following new section:
“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 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 the 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 Copyright Royalty
Tribunal 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
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
such Act.
“(f) Copyright Royalty Tribunal To Suspend Various
Activities.–The Copyright Royalty Tribunal shall not conduct any rate-
making 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 such works performed on coin-operated phonorecord
players during the one-year period ending on the effective date of such
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 such terminated or expired licenses.”.
(b) Technical Amendments.–(1) Section 116 is amended–
(A) by amending the section heading to read as follows:
“Section 116. Scope of exclusive rights in nondramatic musical works:
Compulsory licenses for public performance by means of coin-operated
phonorecord players”;
(B) in subsection (a) in the matter preceding paragraph
(1), by inserting after “in a phonorecord,” the following: “the
performance of which is subject to this section as provided in
section 116A,”; and
(C) in subsection (e), by inserting “and section 116A”
after “As used in this section”.
(2) The table of sections at the beginning of chapter 1 is amended by
striking out the item relating to section 116, and inserting in lieu thereof the
following:
“116. Scope of exclusive rights in nondramatic musical works: Compulsory
licenses for public performances by means of coin-operated phonorecord
players.”
“116A. Negotiated licenses for public performances by means of coin-operated
phonorecord players.”.
Section 5. Recordation.
Section 205 is amended–
(1) by striking out subsection (d); and
(2) by redesignating subsections (e) and (f) as subsections (d)
and (e), respectively.
Section 6. Preemption with Respect to Other Laws Not Affected.
Section 301 is amended by adding at the end thereof the following:
“(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 obligations of the United States thereunder.”.
Section 7. Notice of Copyright.
(a) Visually Perceptible Copies.–Section 401 is amended–
(1) in subsection (a), by amending the subsection heading to
read as follows:
“(a) General Provisions.–“;
(2) in subsection (a), by striking out “shall be placed on all”
and inserting in lieu thereof “may be placed on”;
(3) in subsection (b), by striking out “The notice appearing on
the copies: and inserting in lieu thereof “If a notice appears on the
copies, it”; and
(4) by adding at the end of the following:
“(d) Evidentiary Weight of Notice.–If a notice of copyright in the form
and position 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).”.
(b) Phonorecords of Sound Recordings.–Section 402 is amended–
(1) in subsection (a), by amending the subsection heading to
read as follows:
“(a) General Provisions.–“;
(2) in subsection (a), by striking out “shall be placed on all”
and inserting in lieu thereof “may be placed on”;
(3) in subsection (b), by striking out “The notice appearing on
the phonorecords” and inserting in lieu thereof “If a notice appears on
the phonorecords, it”; and
(4) by adding at the end thereof the following new subsection:
“(d) Evidentiary Weight of Notice.–If a notice of copyright in the form
and position 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).”.
(c) Publications Incorporating United States Government Works.–
Section 403 is amended to read as follows:
“Sections 401(d) and 402(d) shall not apply to a work published in
copies or phonorecords consisting predominantly of one or more works of the
United States Government unless the notice of copyright appearing on the
published copies or phonorecords to which a defendant in the copyright
infringement suit had access includes a statement identifying, either affirmatively
or negatively, those portions of the copies or phonorecords embodying any work
or works protected under this title.”.
(d) Notice of Copyright; Contribution to Collective Works.–Section
404 is amended–
(1) in subsection (a), by striking out “to satisfy the
requirements of sections 401 through 403”, and inserting in lieu thereof
“to invoke the provisions of section 401(d) or 402(d), as applicable”;
and
(2) in subsection (b), by striking out “Where” and inserting in
lieu thereof “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”.
(e) Omission of Notice.–Section 405 is amended–
(1) in subsection (a), by striking out “The omission of the
copyright notice prescribed by” and inserting in lieu thereof “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
described in”;
(2) in subsection (b), by striking out “omitted,” in the first
sentence and inserting in lieu thereof “omitted and which was publicly
distributed by authority of the copyright owner before the effective date
of the Berne Convention Implementation Act of 1988,”; and
(3) by amending the section heading to read as follows:
“Section 405. Notice of copyright: Omission of notice on certain copies and
phonorecords”
(f) Error in Name or Date.–Section 406 is amended–
(1) in subsection (a) by striking out “Where” and inserting in
lieu thereof “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”;
(2) in subsection (b) by inserting “before the effective date of
the Berne Convention Implementation Act of 1988” after “distributed”;
(3) in subsection (c)–
(A) by inserting “before the effective date of the Berne
Convention Implementation Act of 1988” after “publicly
distributed”; and
(B) by inserting after “405” the following: “as in
effect on the day before the effective date of the Berne
Convention Implementation Act of 1988”; and
(4) by amending the section heading to read as follows:
“Section 406. Notice of copyright: Error in name or date on certain copies and
phonorecords”.
(g) Clerical Amendment.–The table of sections at the beginning of
chapter 4 is amended by striking out the items relating to sections 405 and 406
and inserting in lieu thereof the following:
“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.”.
Section 8. Deposit of Copies or Phonorecords for Library of Congress.
Section 407(a) is amended by striking out “with notice of copyright”.
Section 9. Copyright Registration.
(a) Registration in General.–Section 408 is amended–
(1) in subsection (a), by striking out “Subject to the
provisions of section 405(a), such” in the second sentence and inserting
in lieu thereof “Such”;
(2) in subsection (c)(2)–
(A) by striking out “all of the following conditions–”
and inserting in lieu thereof “the following conditions:”;
(B) by striking out subparagraph (A); and
(C) by redesignating subparagraphs (B) and (C) as
subparagraphs (A) and (B), respectively.
(b) Infringement Actions.–
(1) Registration as a Prerequisite.–Section 411 is amended–
(A) by amending the section heading to read as follows:
“Section 411. Registration and infringement actions”;
(B) in subsection (a) by striking out “Subject” and
inserting in lieu thereof “Except for actions for infringement of
copyright in Berne Convention works whose country of origin
in not the United States, and subject”; and
(C) in subsection (b)(2) by inserting “, if required by
subsection (a),” after “work”.
(2) Table of Sections.–The table of sections at the beginning
of chapter 4 is amended by striking out the item relating to section 411
and inserting in lieu thereof the following:
“411. Registration and infringement actions.”.
Section 10. Copyright Infringement and Remedies.
(a) Infringement.–Section 501(b) is amended by striking out “sections
205(d) and 411,” and inserting in lieu thereof “section 411,”.
(b) Damages and Profits.–Section 504(c) is amended–
(1) in paragraph (1))–
(A) by striking out “$250”, and inserting in lieu
thereof “$500”; and
(B) by striking out “$10,000”, and inserting in lieu
thereof “$20,000”; and
(2) in paragraph (2)–
(A) by striking out “$50,000.”, and inserting in lieu
thereof “$100,000.”; and
(B) by striking out “$100.”, and inserting in lieu
thereof “$200.”.
Section 11. Copyright Royalty Tribunal.
Chapter 8 is amended–
(1) in section 801, by adding at the end of subsection (b) the
following: “In determining whether a return to a copyright owner under
section 116 is fair, appropriate weight shall be given to–
“(i) the rates previously determined by the Tribunal to provide
a fair return to the copyright owner, and
“(ii) the rates contained in any license negotiated pursuant to
section 116A of this title.”; and
(2) by amending section 804(a)(2)(C) to read as follows:
“(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 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).”.
Section 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.
Section 13. Effective Date 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.
(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 titles as in effect when the cause of action arose.
Approved October 31, 1988.
