Coalition for Networked Information
\nInformation Policies: A Compilation of Position Statements, Principles,
\nStatutes, and Other Pertinent Statements<\/p>\n
U.S. Laws, Statutes<\/p>\n
Berne Convention Implementation Act of 1988<\/p>\n
Source: Berne Convention Implementation Act of 1988, 17 USC 101
\nnote. United States Code Congressional and Administrative News,
\n100th Congress–Second Session, Volume 2, West Publishing Co., St.
\nPaul, Minn., 102 Stat. 2853-2861. <\/p>\n
(An Act to amend title 17, United States Code, to implement the Berne
\nConvention for the Protection of Literary and Artistic Works, as revised
\nat Paris on July 24, 1971, and for other purposes.)<\/p>\n
Be it enacted by the Senate and House of Representatives of the United
\nStates of America in Congress assembled.<\/p>\n
Section 1. Short Title and References to Title 17, United States Code.<\/p>\n
(a) Short Title.–This Act, may be cited as the “Berne Convention
\nImplementation Act of 1988”.<\/p>\n
(b) References to Title 17, United States Code.–Whenever in this Act
\nan amendment or repeal is expressed in terms of an amendment to or a repeal
\nof a section or other provision, the reference shall be considered to be
\nmade to a section or other provision of title 17, United States Code.<\/p>\n
Section 2. Declarations.<\/p>\n
The Congress makes the following declarations:<\/p>\n
(1) The Convention for the Protection of Literary and Artistic
\nWorks, signed at Berne, Switzerland, on September 9, 1886, and all
\nacts, protocols, and revisions thereto (hereafter in this Act referred to as
\nthe “Berne Convention”) are not self-executing under the Constitution
\nand laws of the United States.<\/p>\n
(2) The obligations of the United States under the Berne
\nConvention may be performed only pursuant to appropriate domestic
\nlaw.<\/p>\n
(3) The amendments made by this Act, together with the law
\nas it exists on the date of the enactment of this Act, satisfy the
\nobligations of the United States in adhering to the Berne Convention
\nand no further rights or interests shall be recognized or created for that
\npurpose.<\/p>\n
Section 3. Construction of the Berne Convention.<\/p>\n
(a) Relationship with Domestic Law.–The provisions of the Berne
\nConvention–<\/p>\n
(1) shall be given effect under title 17, as amended by this
\nAct, and any other relevant provision of Federal or State law, including
\nthe common law; and<\/p>\n
(2) shall not be enforceable in any action brought pursuant to
\nthe provisions of the Berne Convention itself.<\/p>\n
(b) Certain Rights Not Affected.–The provisions of the Berne
\nConvention, the adherence of the United States thereto, and satisfaction of United
\nStates obligations thereunder, do no expand or reduce any right of an author of a
\nwork, whether claimed under Federal, State, or the common law–<\/p>\n
(1) to claim authorship of the work; or<\/p>\n
(2) to object to any distortion, mutilation, or other
\nmodification of, or other derogatory action in relation to, the work, that
\nwould prejudice the author’s honor or reputation.<\/p>\n
Section 4. Subject Matter and Scope of Copyrights.<\/p>\n
(a) Subject and Scope.–Chapter 1 is amended–<\/p>\n
(1) in section 101–<\/p>\n
(A) in the definition of “Pictorial, graphic, and
\nsculptural works” by striking out in the first sentence
\n“technical drawings, diagrams, and models” and inserting in
\nlieu thereof “diagrams, models, and technical drawings,
\nincluding architectural plans”;<\/p>\n
(B) by inserting after the definition of “Audiovisual
\nworks”, the following: “The ‘Berne Convention’ is the
\nConvention for the Protection of Literary and Artistic Works,
\nsigned at Berne, Switzerland, on September 8, 1886, and all
\nacts, protocols, and revisions thereto.<\/p>\n
“A work is a ‘Berne Convention work’ if–<\/p>\n
“(1) in the case of an unpublished work, one
\nor more of the authors is a national of a nation
\nadhering to the Berne Convention, or in the case of a
\npublished work, one or more of the authors is a
\nnational of a nation adhering to the Berne Convention
\non the date of first publication;<\/p>\n
“(2) the work was first published in a nation
\nadhering to the Berne Convention, or was
\nsimultaneously first published in a nation adhering to
\nthe Berne Convention and in a foreign nation that
\ndoes not adhere to the Berne Convention;<\/p>\n
“(3) in the case of an audiovisual work–<\/p>\n
“(A) if one or more of the authors
\nis a legal entity, that the author has its
\nheadquarters in a nation adhering to the
\nBerne Convention; or<\/p>\n
“(B) if one or more of the authors is
\nan individual, that author is domiciled, or
\nhas his or her habitual residence in, a
\nnation adhering to the Berne Convention;
\nor<\/p>\n
“(4) in the case of a pictorial, graphic, or
\nsculptural work that is incorporated in a building or
\nother structure, the building or structure is located in
\na nation adhering to the Berne Convention.<\/p>\n
For purposes of paragraph (1), an author who is
\ndomiciled in or has his or her habitual residence in, a nation
\nadhering to the Berne Convention is considered to be a national
\nof that nation. For purposes of paragraph (2), a work is
\nconsidered to have been simultaneously published in two or
\nmore nations if its dates of publication are within 30 days of
\none another,”; and<\/p>\n
(C) by inserting after the definition of “Copyright
\nowner”, the following:<\/p>\n
“The ‘country of origin’ of a Berne Convention work, for
\npurposes of section 411, is the United States if–\t<\/p>\n
“(1) in the case of a published work, the work
\nis first published–<\/p>\n
“(A) in the United States;<\/p>\n
“(B) simultaneously in the United States
\nand another nation or nations adhering to the Berne
\nConvention, whose law grants a term of copyright
\nprotection that is the same as or longer than the term
\nprovided in the United States;<\/p>\n
“(C) simultaneously in the United States
\nand a foreign nation that does not adhere to the Berne
\nConvention; or<\/p>\n
“(D) in a foreign nation that does not
\nadhere to the Berne Convention, and all of the authors
\nof the work are nationals, domiciliaries, or habitual
\nresidents of, or in the case of an audiovisual work
\nlegal entities with headquarters in, the United States;<\/p>\n
“(2) in the case of an unpublished work, all the
\nauthors of the work are nationals, domiciliaries, or
\nhabitual residents of the United States, or, in the case of an
\nunpublished audiovisual work, all the authors are legal
\nentities with headquarters in the United States; or<\/p>\n
“(3) in the case of a pictorial, graphic, or
\nsculptural work incorporated in a building or structure, the
\nbuilding or structure is located in the United States.
\nFor the purposes of section 411, the ‘country of origin’ of any other
\nBerne Convention work is not the United States.”;<\/p>\n
(2) in section 104(b)–<\/p>\n
(A) by redesignating paragraph (4) as paragraph (5); and<\/p>\n
(B) by inserting after paragraph (3) the following new
\nparagraph: “(4) the work is a Berne Convention work; or”;
\n(3) in section 104 by adding at the end thereof the following:<\/p>\n
“(c) Effect of Berne Convention.–No right or interest in a
\nwork eligible for protection under this title may be claimed by virtue
\nor, or in reliance upon; the provisions of the Berne Convention, or the
\nadherence of the United States thereto. Any rights in a work eligible
\nfor protection under this title that derive from this title, other Federal or
\nState statutes, or the common law, shall not be expanded or reduced by
\nvirtue of, or in reliance upon, the provisions of the Berne Convention,
\nor the adherence of the United States thereto.”; and<\/p>\n
(4) by inserting after section 116 the following new section:
\n“Section 116A. Negotiated licenses for public performances by means of coin-
\noperated phonorecord players<\/p>\n
“(a) Applicability of Section.–This section applies to any nondramatic
\nmusical work embodied in a phonorecord.<\/p>\n
“(b) Limitation on Exclusive Right if Licenses Not Negotiated.–<\/p>\n
“(1) Applicability.–In the case of a work to which this section
\napplies, the exclusive right under clause (4) of section 106 to perform
\nthe work publicly by means of a coin-operated phonorecord player is
\nlimited by section 116 to the extent provided in this section.<\/p>\n
“(2) Determination by Copyright Royalty Tribunal.–The
\nCopyright Royalty Tribunal, at the end of the 1-year period beginning
\non the effective date of the Berne Convention Implementation Act of
\n1988, and periodically thereafter to the extent necessary to carry out
\nsubsection (f), shall determine whether or not negotiated licenses
\nauthorized by subsection (c) are in effect so as to provide permission to
\nuse a quantity of musical works not substantially smaller than the
\nquantity of such works performed on coin-operated phonorecord players
\nduring the 1-year period ending on the effective date of that Act. If the
\nCopyright Royalty Tribunal determines that such negotiated licenses are
\nnot so in effect, the Tribunal shall, upon making the determination,
\npublish the determination in the Federal Register. Upon such
\npublication, section 116 shall apply with respect to musical works that
\nare not the subject of such negotiated licenses.<\/p>\n
“(c) Negotiated Licenses.–<\/p>\n
“(1) Authority for Negotiations.–Any owners of copyright in
\nworks to which this section applies and any operators of coin-operated
\nphonorecord players may negotiate and agree upon the terms and rates of
\nroyalty payments for the performance of such works and the
\nproportionate division of fees paid among copyright owners, and may
\ndesignate common agents to negotiate, agree to, pay, or receive such
\nroyalty payments.<\/p>\n
“(2) Arbitration.–Parties to such a negotiation, within such
\ntime as may be specified by the Copyright Royalty Tribunal by
\nregulation, may determine the result of the negotiation by arbitration.
\nSuch arbitration shall be governed by the provisions of title 9, to the
\nextent such title is not inconsistent with this section. The parties shall
\ngive notice to the Copyright Royalty Tribunal of any determination
\nreached by arbitration and any such determination shall, as between the
\nparties to the arbitration, be dispositive of the issues to which it relates.<\/p>\n
“(d) License Agreements Superior to Copyright Royalty
\nTribunal Determinations.–License agreements between one or more
\ncopyright owners and one or more operators of coin-operated
\nphonorecord players, which are negotiated in accordance with subsection
\n(c), shall be given effect in lieu of any otherwise applicable
\ndetermination by the Copyright Royalty Tribunal.<\/p>\n
“(e) Negotiation Schedule.–Not later than 60 days after the
\neffective date of the Berne Convention Implementation Act of 1988, if
\nthe Chairman of the copyright Royalty Tribunal has not received
\nnotice, from copyright owners and operators of coin-operated
\nphonorecord players referred to in subsection (c)(1), of the date and
\nlocation of the first meeting between such copyright owners and such
\noperators to commence negotiations authorized by subsection (c), the
\nChairman shall announce the date and location of such meeting. Such
\nmeeting may not be held more than 90 days after the effective date of
\nsuch Act.<\/p>\n
“(f) Copyright Royalty Tribunal To Suspend Various
\nActivities.–The Copyright Royalty Tribunal shall not conduct any rate-
\nmaking activity with respect to coin-operated phonorecord players
\nunless, at any time more than one year after the effective date of the
\nBerne Convention Implementation Act of 1988, the negotiated licenses
\nadopted by the parties under this section do not provide permission to
\nuse a quantity of such works performed on coin-operated phonorecord
\nplayers during the one-year period ending on the effective date of such
\nAct.<\/p>\n
“(g) Transition Provisions; Retention of Copyright Royalty
\nTribunal Jurisdiction.–Until such time as licensing provisions are
\ndetermined by the parties under this section, the terms of the
\ncompulsory license under section 116, with respect to the public
\nperformance of nondramatic musical works by means of coin-operated
\nphonorecord players, which is in effect on the day before the effective
\ndate of the Berne Convention Implementation Act of 1988, shall remain
\nin force. If a negotiated license authorized by this section comes into
\nforce so as to supersede previous determinations of the Copyright
\nRoyalty Tribunal, as provided in subsection (d), but thereafter is
\nterminated or expires and is not replaced by another licensing
\nagreement, then section 116 shall be effective with respect to musical
\nworks that were the subject of such terminated or expired licenses.”.<\/p>\n
(b) Technical Amendments.–(1) Section 116 is amended–<\/p>\n
(A) by amending the section heading to read as follows:<\/p>\n
“Section 116. Scope of exclusive rights in nondramatic musical works:
\nCompulsory licenses for public performance by means of coin-operated
\nphonorecord players”;<\/p>\n
(B) in subsection (a) in the matter preceding paragraph
\n(1), by inserting after “in a phonorecord,” the following: “the
\nperformance of which is subject to this section as provided in
\nsection 116A,”; and<\/p>\n
(C) in subsection (e), by inserting “and section 116A”
\nafter “As used in this section”.<\/p>\n
(2) The table of sections at the beginning of chapter 1 is amended by
\nstriking out the item relating to section 116, and inserting in lieu thereof the
\nfollowing:<\/p>\n
“116. Scope of exclusive rights in nondramatic musical works: Compulsory
\nlicenses for public performances by means of coin-operated phonorecord
\nplayers.”<\/p>\n
“116A. Negotiated licenses for public performances by means of coin-operated
\nphonorecord players.”.<\/p>\n
Section 5. Recordation.<\/p>\n
Section 205 is amended–<\/p>\n
(1) by striking out subsection (d); and<\/p>\n
(2) by redesignating subsections (e) and (f) as subsections (d)
\nand (e), respectively.<\/p>\n
Section 6. Preemption with Respect to Other Laws Not Affected.<\/p>\n
Section 301 is amended by adding at the end thereof the following: <\/p>\n
“(e) The scope of Federal preemption under this section is not affected
\nby the adherence of the United States to the Berne Convention or the satisfaction
\nof obligations of the United States thereunder.”.<\/p>\n
Section 7. Notice of Copyright.<\/p>\n
(a) Visually Perceptible Copies.–Section 401 is amended–<\/p>\n
(1) in subsection (a), by amending the subsection heading to
\nread as follows:<\/p>\n
“(a) General Provisions.–“;<\/p>\n
(2) in subsection (a), by striking out “shall be placed on all”
\nand inserting in lieu thereof “may be placed on”;<\/p>\n
(3) in subsection (b), by striking out “The notice appearing on
\nthe copies: and inserting in lieu thereof “If a notice appears on the
\ncopies, it”; and<\/p>\n
(4) by adding at the end of the following:<\/p>\n
“(d) Evidentiary Weight of Notice.–If a notice of copyright in the form
\nand position specified by this section appears on the published copy or copies to
\nwhich a defendant in a copyright infringement suit had access, then no weight
\nshall be given to such a defendant’s interposition of a defense based on innocent
\ninfringement in mitigation of actual or statutory damages, except as provided in
\nthe last sentence of section 504(c)(2).”.<\/p>\n
(b) Phonorecords of Sound Recordings.–Section 402 is amended–<\/p>\n
(1) in subsection (a), by amending the subsection heading to
\nread as follows:<\/p>\n
“(a) General Provisions.–“;<\/p>\n
(2) in subsection (a), by striking out “shall be placed on all”
\nand inserting in lieu thereof “may be placed on”;<\/p>\n
(3) in subsection (b), by striking out “The notice appearing on
\nthe phonorecords” and inserting in lieu thereof “If a notice appears on
\nthe phonorecords, it”; and<\/p>\n
(4) by adding at the end thereof the following new subsection:<\/p>\n
“(d) Evidentiary Weight of Notice.–If a notice of copyright in the form
\nand position specified by this section appears on the published phonorecord or
\nphonorecords to which a defendant in a copyright infringement suit had access,
\nthen no weight shall be given to such a defendant’s interposition of a defense
\nbased on innocent infringement in mitigation of actual or statutory damages,
\nexcept as provided in the last sentence of section 504(c)(2).”.<\/p>\n
(c) Publications Incorporating United States Government Works.–
\nSection 403 is amended to read as follows:<\/p>\n
“Sections 401(d) and 402(d) shall not apply to a work published in
\ncopies or phonorecords consisting predominantly of one or more works of the
\nUnited States Government unless the notice of copyright appearing on the
\npublished copies or phonorecords to which a defendant in the copyright
\ninfringement suit had access includes a statement identifying, either affirmatively
\nor negatively, those portions of the copies or phonorecords embodying any work
\nor works protected under this title.”.<\/p>\n
(d) Notice of Copyright; Contribution to Collective Works.–Section
\n404 is amended–<\/p>\n
(1) in subsection (a), by striking out “to satisfy the
\nrequirements of sections 401 through 403”, and inserting in lieu thereof
\n“to invoke the provisions of section 401(d) or 402(d), as applicable”;
\nand<\/p>\n
(2) in subsection (b), by striking out “Where” and inserting in
\nlieu thereof “With respect to copies and phonorecords publicly
\ndistributed by authority of the copyright owner before the effective date
\nof the Berne Convention Implementation Act of 1988, where”.<\/p>\n
(e) Omission of Notice.–Section 405 is amended–<\/p>\n
(1) in subsection (a), by striking out “The omission of the
\ncopyright notice prescribed by” and inserting in lieu thereof “With
\nrespect to copies and phonorecords publicly distributed by authority of
\nthe copyright owner before the effective date of the Berne Convention
\nImplementation Act of 1988, the omission of the copyright notice
\ndescribed in”;<\/p>\n
(2) in subsection (b), by striking out “omitted,” in the first
\nsentence and inserting in lieu thereof “omitted and which was publicly
\ndistributed by authority of the copyright owner before the effective date
\nof the Berne Convention Implementation Act of 1988,”; and<\/p>\n
(3) by amending the section heading to read as follows:
\n“Section 405. Notice of copyright: Omission of notice on certain copies and
\nphonorecords”<\/p>\n
(f) Error in Name or Date.–Section 406 is amended–<\/p>\n
(1) in subsection (a) by striking out “Where” and inserting in
\nlieu thereof “With respect to copies and phonorecords publicly
\ndistributed by authority of the copyright owner before the effective date
\nof the Berne Convention Implementation Act of 1988, where”;<\/p>\n
(2) in subsection (b) by inserting “before the effective date of
\nthe Berne Convention Implementation Act of 1988” after “distributed”;<\/p>\n
(3) in subsection (c)–<\/p>\n
(A) by inserting “before the effective date of the Berne
\nConvention Implementation Act of 1988” after “publicly
\ndistributed”; and<\/p>\n
(B) by inserting after “405” the following: “as in
\neffect on the day before the effective date of the Berne
\nConvention Implementation Act of 1988”; and<\/p>\n
(4) by amending the section heading to read as follows:
\n“Section 406. Notice of copyright: Error in name or date on certain copies and
\nphonorecords”.<\/p>\n
(g) Clerical Amendment.–The table of sections at the beginning of
\nchapter 4 is amended by striking out the items relating to sections 405 and 406
\nand inserting in lieu thereof the following:<\/p>\n
“405. Notice of copyright: Omission of notice on certain copies and
\nphonorecords.<\/p>\n
“406. Notice of copyright: Error in name or date on certain copies and
\nphonorecords.”.<\/p>\n
Section 8. Deposit of Copies or Phonorecords for Library of Congress.<\/p>\n
Section 407(a) is amended by striking out “with notice of copyright”.<\/p>\n
Section 9. Copyright Registration.<\/p>\n
(a) Registration in General.–Section 408 is amended–<\/p>\n
(1) in subsection (a), by striking out “Subject to the
\nprovisions of section 405(a), such” in the second sentence and inserting
\nin lieu thereof “Such”;<\/p>\n
(2) in subsection (c)(2)–<\/p>\n
(A) by striking out “all of the following conditions–”
\nand inserting in lieu thereof “the following conditions:”;<\/p>\n
(B) by striking out subparagraph (A); and<\/p>\n
(C) by redesignating subparagraphs (B) and (C) as
\nsubparagraphs (A) and (B), respectively.<\/p>\n
(b) Infringement Actions.–<\/p>\n
(1) Registration as a Prerequisite.–Section 411 is amended–<\/p>\n
(A) by amending the section heading to read as follows:<\/p>\n
“Section 411. Registration and infringement actions”;<\/p>\n
(B) in subsection (a) by striking out “Subject” and
\ninserting in lieu thereof “Except for actions for infringement of
\ncopyright in Berne Convention works whose country of origin
\nin not the United States, and subject”; and<\/p>\n
(C) in subsection (b)(2) by inserting “, if required by
\nsubsection (a),” after “work”.<\/p>\n
(2) Table of Sections.–The table of sections at the beginning
\nof chapter 4 is amended by striking out the item relating to section 411
\nand inserting in lieu thereof the following:<\/p>\n
“411. Registration and infringement actions.”.<\/p>\n
Section 10. Copyright Infringement and Remedies.<\/p>\n
(a) Infringement.–Section 501(b) is amended by striking out “sections
\n205(d) and 411,” and inserting in lieu thereof “section 411,”.<\/p>\n
(b) Damages and Profits.–Section 504(c) is amended–<\/p>\n
(1) in paragraph (1))–<\/p>\n
(A) by striking out “$250”, and inserting in lieu
\nthereof “$500”; and<\/p>\n
(B) by striking out “$10,000”, and inserting in lieu
\nthereof “$20,000”; and<\/p>\n
(2) in paragraph (2)–<\/p>\n
(A) by striking out “$50,000.”, and inserting in lieu
\nthereof “$100,000.”; and<\/p>\n
(B) by striking out “$100.”, and inserting in lieu
\nthereof “$200.”.<\/p>\n
Section 11. Copyright Royalty Tribunal.<\/p>\n
Chapter 8 is amended–<\/p>\n
(1) in section 801, by adding at the end of subsection (b) the
\nfollowing: “In determining whether a return to a copyright owner under
\nsection 116 is fair, appropriate weight shall be given to–<\/p>\n
“(i) the rates previously determined by the Tribunal to provide
\na fair return to the copyright owner, and <\/p>\n
“(ii) the rates contained in any license negotiated pursuant to
\nsection 116A of this title.”; and<\/p>\n
(2) by amending section 804(a)(2)(C) to read as follows:<\/p>\n
“(C)
\n(i) In proceedings under section 801(b)(1)
\nconcerning the adjustment of royalty rates as provided in
\nsection 115, such petition may be filed in 1990 and in each
\nsubsequent tenth calendar year, and at any time within 1 year
\nafter negotiated licenses authorized by section 116A are
\nterminated or expire and are not replaced by subsequent
\nagreements.<\/p>\n
“(ii) If negotiated licenses authorized by section
\n116A come into force so as to supersede previous
\ndeterminations of the Tribunal, as provided in section 116A(d),
\nbut thereafter are terminated or expire and are not replaced by
\nsubsequent agreements, the Tribunal shall, upon petition of
\nany party to such terminated or expired negotiated license
\nagreement, promptly establish an interim royalty rate or rates
\nfor the public performance by means of a coin-operated
\nphonorecord player of nondramatic musical works embodied in
\nphonorecords which had been subject to the terminated or
\nexpired negotiated license agreement. Such interim royalty
\nrate or rates shall be the same as the last such rate or rates and
\nshall remain in force until the conclusion of proceedings to
\nadjust the royalty rates applicable to such works, or until
\nsuperseded by a new negotiated license agreement, as provided
\nin section 116A(d).”.<\/p>\n
Section 12. Works in the Public Domain.<\/p>\n
Title 17, United States Code, as amended by this Act, does not provide
\ncopyright protection for any work that is in the public domain in the United
\nStates.<\/p>\n
Section 13. Effective Date on Pending Cases.<\/p>\n
(a) Effective Date.–This Act and the amendments made by this Act
\ntake effect on the date on which the Berne Convention (as defined in section 101
\nof title 17, United States Code) enters into force with respect to the United
\nStates.<\/p>\n
(b) Effect on Pending Cases.–Any cause of action arising under title
\n17, United States Code, before the effective date of this Act shall be governed by
\nthe provisions of such titles as in effect when the cause of action arose.<\/p>\n
Approved October 31, 1988.<\/p>\n
