Chapter 13 [1]
Reading edition
Chapter 13 [1]
Protection of Original Designs
+ 1301. Designs protected + 1302. Designs not subject to protection + 1303. Revisions, adaptations, and rearrangements + 1304. Commencement of protection + 1305. Term of protection + 1306. Design notice + 1307. Effect of omission of notice + 1308. Exclusive rights + 1309. Infringement + 1310. Application for registration + 1311. Benefit of earlier filing date in foreign country + 1312. Oaths and acknowledgments + 1313. Examination of application and issue or refusal of registration + 1314. Certification of registration + 1315. Publication of announcements and indexes + 1316. Fees + 1317. Regulations + 1318. Copies of records + 1319. Correction of errors in certificates + 1320. Ownership and transfer + 1321. Remedy for infringement + 1322. Injunctions + 1323. Recovery for infringement + 1324. Power of court over registration + 1325. Liability for action on registration fraudulently obtained + 1326. Penalty for false marking + 1327. Penalty for false representation + 1328. Enforcement by Treasury and Postal Service + 1329. Relation to design patent law + 1330. Common law and other rights unaffected + 1331. Administrator; Office of the Administrator + 1332. No retroactive effect
Section 1301. Designs protected [3]
(a) Designs Protected.
(1) In General. The designer or other owner of an original design of a useful article which makes the article attractive or distinctive in appearance to the purchasing or using public may secure the protection provided by this chapter upon complying with and subject to this chapter.
(2) Vessel Hulls. The design of a vessel hull, including a plug or mold, is subject to protection under this chapter, notwithstanding section 1302(4).
(b) Definitions. For the purpose of this chapter, the following terms have the following meanings:
(1) A design is "original" if it is the result of the designer's creative endeavor that provides a distinguishable variation over prior work pertaining to similar articles which is more than merely trivial and has not been copied from another source.
(2) A "useful article" is a vessel hull, including a plug or mold, which in normal use has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article which normally is part of a useful article shall be deemed to be a useful article.
(3) A "vessel" is a craft-
(A) that is designed and capable of independently steering a course on or through water through its own means of propulsion; and
(B) that is designed and capable of carrying and transporting one or more passengers.
(4) A "hull" is the frame or body of a vessel, including the deck of a vessel, exclusive of masts, sails, yards, and rigging.
(5) A "plug" means a device or model used to make a mold for the purpose of exact duplication, regardless of whether the device or model has an intrinsic utilitarian function that is not only to portray the appearance of the product or to convey information.
(6) A "mold" means a matrix or form in which a substance for material is used, regardless of whether the matrix or form has an intrinsic utilitarian function that is not only to portray the appearance of the product or to convey information.
Section 1302. Designs not subject to protection [3]
Protection under this chapter shall not be available for a design that is-
(1) not original;
(2) staple or commonplace, such as a standard geometric figure, a familiar symbol, an emblem, or a motif, or another shape, pattern, or configuration which has become standard, common, prevalent, or ordinary;
(3) different from a design excluded by paragraph (2) only in insignificant details or in elements which are variants commonly used in the relevant trades;
(4) dictated solely by a utilitarian function of the article that embodies it; or
(5) embodied in a useful article that was made public by the designer or owner in the United States or a foreign country more than 2 years before the date of the application for registration under this chapter.
Section 1303. Revisions, adaptations, and rearrangements
Protection for a design under this chapter shall be available notwithstanding the employment in the design of subject matter excluded from protection under section 1302 if the design is a substantial revision, adaptation, or rearrangement of such subject matter. Such protection shall be independent of any subsisting protection in subject matter employed in the design, and shall not be construed as securing any right to subject matter excluded from protection under this chapter or as extending any subsisting protection under this chapter.
Section 1304. Commencement of protection
The protection provided for a design under this chapter shall commence upon the earlier of the date of publication of the registration under section 1313(a) or the date the design is first made public as defined by section 1310(b).
Section 1305. Term of protection
(a) In General. Subject to subsection (b), the protection provided under this chapter for a design shall continue for a term of 10 years beginning on the date of the commencement of protection under section 1304.
(b) Expiration. All terms of protection provided in this section shall run to the end of the calendar year in which they would otherwise expire.
(c) Termination of Rights. Upon expiration or termination of protection in a particular design under this chapter, all rights under this chapter in the design shall terminate, regardless of the number of different articles in which the design may have been used during the term of its protection.
Section 1306. Design notice
(a) Contents of Design Notice.
(1) Whenever any design for which protection is sought under this chapter is made public under section 1310(b), the owner of the design shall, subject to the provisions of section 1307, mark it or have it marked legibly with a design notice consisting of
(A) the words "Protected Design", the abbreviation "Prot'd Des.", or the letter "D" with a circle, or the symbol "*D*";
(B) the year of the date on which protection for the design commenced; and
(C) the name of the owner, an abbreviation by which the name can be recognized, or a generally accepted alternative designation of the owner.
Any distinctive identification of the owner may be used for purposes of subparagraph (C) if it has been recorded by the Administrator before the design marked with such identification is registered.
(2) After registration, the registration number may be used instead of the elements specified in subparagraphs (B) and (C) of paragraph (1).
(b) Location of Notice. The design notice shall be so located and applied as to give reasonable notice of design protection while the useful article embodying the design is passing through its normal channels of commerce.
(c) Subsequent Removal of Notice. When the owner of a design has complied with the provisions of this section, protection under this chapter shall not be affected by the removal, destruction, or obliteration by others of the design notice on an article.
Section 1307. Effect of omission of notice
(a) Actions with Notice. Except as provided in subsection (b), the omission of the notice prescribed in section 1306 shall not cause loss of the protection under this chapter or prevent recovery for infringement under this chapter against any person who, after receiving written notice of the design protection, begins an undertaking leading to infringement under this chapter.
(b) Actions without Notice. The omission of the notice prescribed in section 1306 shall prevent any recovery under section 1323 against a person who began an undertaking leading to infringement under this chapter before receiving written notice of the design protection. No injunction shall be issued under this chapter with respect to such undertaking unless the owner of the design reimburses that person for any reasonable expenditure or contractual obligation in connection with such undertaking that was incurred before receiving written notice of the design protection, as the court in its discretion directs. The burden of providing written notice of design protection shall be on the owner of the design.
Section 1308. Exclusive rights
The owner of a design protected under this chapter has the exclusive right to-
(1) make, have made, or import, for sale or for use in trade, any useful article embodying that design; and
(2) sell or distribute for sale or for use in trade any useful article embodying that design.
Section 1309. Infringement
(a) Acts of Infringement. Except as provided in subsection (b), it shall be infringement of the exclusive rights in a design protected under this chapter for any person, without the consent of the owner of the design, within the United States and during the term of such protection, to-
(1) make, have made, or import, for sale or for use in trade, any infringing article as defined in subsection (e); or
(2) sell or distribute for sale or for use in trade any such infringing article.
(b) Acts of Sellers and Distributors. A seller or distributor of an infringing article who did not make or import the article shall be deemed to have infringed on a design protected under this chapter only if that person-
(1) induced or acted in collusion with a manufacturer to make, or an importer to import such article, except that merely purchasing or giving an order to purchase such article in the ordinary course of business shall not of itself constitute such inducement or collusion; or
(2) refused or failed, upon the request of the owner of the design, to make a prompt and full disclosure of that person's source of such article, and that person orders or reorders such article after receiving notice by registered or certified mail of the protection subsisting in the design.
(c) Acts without Knowledge. It shall not be infringement under this section to make, have made, import, sell, or distribute, any article embodying a design which was created without knowledge that a design was protected under this chapter and was copied from such protected design.
(d) Acts in Ordinary Course of Business. A person who incorporates into that person's product of manufacture an infringing article acquired from others in the ordinary course of business, or who, without knowledge of the protected design embodied in an infringing article, makes or processes the infringing article for the account of another person in the ordinary course of business, shall not be deemed to have infringed the rights in that design under this chapter except under a condition contained in paragraph (1) or (2) of subsection (b). Accepting an order or reorder from the source of the infringing article shall be deemed ordering or reordering within the meaning of subsection (b)(2).
(e) Infringing Article Defined. As used in this section, an "infringing article" is any article the design of which has been copied from a design protected under this chapter, without the consent of the owner of the protected design. An infringing article is not an illustration or picture of a protected design in an advertisement, book, periodical, newspaper, photograph, broadcast, motion picture, or similar medium. A design shall not be deemed to have been copied from a protected design if it is original and not substantially similar in appearance to a protected design.
(f) Establishing Originality. The party to any action or proceeding under this chapter who alleges rights under this chapter in a design shall have the burden of establishing the design's originality whenever the opposing party introduces an earlier work which is identical to such design, or so similar as to make prima facie showing that such design was copied from such work.
(g) Reproduction for Teaching or Analysis. It is not an infringement of the exclusive rights of a design owner for a person to reproduce the design in a useful article or in any other form solely for the purpose of teaching, analyzing, or evaluating the appearance, concepts, or techniques embodied in the design, or the function of the useful article embodying the design.
Section 1310. Application for registration
(a) Time Limit for Application for Registration. Protection under this chapter shall be lost if application for registration of the design is not made within 2 years after the date on which the design is first made public.
(b) When Design is Made Public. A design is made public when an existing useful article embodying the design is anywhere publicly exhibited, publicly distributed, or offered for sale or sold to the public by the owner of the design or with the owner's consent.
(c) Application by Owner of Design. Application for registration may be made by the owner of the design.
(d) Contents of Application. The application for registration shall be made to the Administrator and shall state-
(1) the name and address of the designer or designers of the design;
(2) the name and address of the owner if different from the designer;
(3) the specific name of the useful article embodying the design;
(4) the date, if any, that the design was first made public, if such date was earlier than the date of the application;
(5) affirmation that the design has been fixed in a useful article; and
(6) such other information as may be required by the Administrator.
The application for registration may include a description setting forth the salient features of the design, but the absence of such a description shall not prevent registration under this chapter.
(e) Sworn Statement. The application for registration shall be accompanied by a statement under oath by the applicant or the applicant's duly authorized agent or representative, setting forth, to the best of the applicant's knowledge and belief-
(1) that the design is original and was created by the designer or designers named in the application;
(2) that the design has not previously been registered on behalf of the applicant or the applicant's predecessor in title; and
(3) that the applicant is the person entitled to protection and to registration under this chapter.
If the design has been made public with the design notice prescribed in section 1306, the statement shall also describe the exact form and position of the design notice.
(f) Effect of Errors. (1) Error in any statement or assertion as to the utility of the useful article named in the application under this section, the design of which is sought to be registered, shall not affect the protection secured under this chapter.
(2) Errors in omitting a joint designer or in naming an alleged joint designer shall not affect the validity of the registration, or the actual ownership or the protection of the design, unless it is shown that the error occurred with deceptive intent.
(g) Design Made in Scope of Employment. In a case in which the design was made within the regular scope of the designer's employment and individual authorship of the design is difficult or impossible to ascribe and the application so states, the name and address of the employer for whom the design was made may be stated instead of that of the individual designer.
(h) Pictorial Representation of Design. The application for registration shall be accompanied by two copies of a drawing or other pictorial representation of the useful article embodying the design, having one or more views, adequate to show the design, in a form and style suitable for reproduction, which shall be deemed a part of the application.
(i) Design in More Than One Useful Article. If the distinguishing elements of a design are in substantially the same form in different useful articles, the design shall be protected as to all such useful articles when protected as to one of them, but not more than one registration shall be required for the design.
(j) Application for More Than One Design. More than one design may be included in the same application under such conditions as may be prescribed by the Administrator. For each design included in an application the fee prescribed for a single design shall be paid.
Section 1311. Benefit of earlier filing date in foreign country
An application for registration of a design filed in the United States by any person who has, or whose legal representative or predecessor or successor in title has, previously filed an application for registration of the same design in a foreign country which extends to designs of owners who are citizens of the United States, or to applications filed under this chapter, similar protection to that provided under this chapter shall have that same effect as if filed in the United States on the date on which the application was first filed in such foreign country, if the application in the United States is filed within 6 months after the earliest date on which any such foreign application was filed.
Section 1312. Oaths and acknowledgments
(a) In General. Oaths and acknowledgments required by this chapter-
(1) may be made-
(A) before any person in the United States authorized by law to administer oaths; or
(B) when made in a foreign country, before any diplomatic or consular officer of the United States authorized to administer oaths, or before any official authorized to administer oaths in the foreign country concerned, whose authority shall be proved by a certificate of a diplomatic or consular officer of the United States; and
(2) shall be valid if they comply with the laws of the State or country where made.
(b) Written Declaration in Lieu of Oath. (1) The Administrator may by rule prescribe that any document which is to be filed under this chapter in the Office of the Administrator and which is required by any law, rule, or other regulation to be under oath, may be subscribed to by a written declaration in such form as the Administrator may prescribe, and such declaration shall be in lieu of the oath otherwise required.
(2) Whenever a written declaration under paragraph (1) is used, the document containing the declaration shall state that willful false statements are punishable by fine or imprisonment, or both, pursuant to section 1001 of title 18, and may jeopardize the validity of the application or document or a registration resulting therefrom.
Section 1313. Examination of application and issue or refusal of registration [4]
(a) Determination of Registrability of Design; Registration.
Upon the filing of an application for registration in proper form under section 1310, and upon payment of the fee prescribed under section 1316, the Administrator shall determine whether or not the application relates to a design which on its face appears to be subject to protection under this chapter, and, if so, the Register shall register the design. Registration under this subsection shall be announced by publication. The date of registration shall be the date of publication.
(b) Refusal To Register; Reconsideration. If, in the judgment of the Administrator, the application for registration relates to a design which on its face is not subject to protection under this chapter, the Administrator shall send to the applicant a notice of refusal to register and the grounds for the refusal. Within 3 months after the date on which the notice of refusal is sent, the applicant may, by written request, seek reconsideration of the application. After consideration of such a request, the Administrator shall either register the design or send to the applicant a notice of final refusal to register.
(c) Application To Cancel Registration. Any person who believes he or she is or will be damaged by a registration under this chapter may, upon payment of the prescribed fee, apply to the Administrator at any time to cancel the registration on the ground that the design is not subject to protection under this chapter, stating the reasons for the request. Upon receipt of an application for cancellation, the Administrator shall send to the owner of the design, as shown in the records of the Office of the Administrator, a notice of the application, and the owner shall have a period of 3 months after the date on which such notice is mailed in which to present arguments to the Administrator for support of the validity of the registration. The Administrator shall also have the authority to establish, by regulation, conditions under which the opposing parties may appear and be heard in support of their arguments. If, after the periods provided for the presentation of arguments have expired, the Administrator determines that the applicant for cancellation has established that the design is not subject to protection under this chapter, the Administrator shall order the registration stricken from the record. Cancellation under this subsection shall be announced by publication, and notice of the Administrator's final determination with respect to any application for cancellation shall be sent to the applicant and to the owner of record. Costs of the cancellation procedure under this subsection shall be borne by the nonprevailing party or parties, and the Administrator shall have the authority to assess and collect such costs.
Section 1314. Certification of registration
Certificates of registration shall be issued in the name of the United States under the seal of the Office of the Administrator and shall be recorded in the official records of the Office. The certificate shall state the name of the useful article, the date of filing of the application, the date of registration, and the date the design was made public, if earlier than the date of filing of the application, and shall contain a reproduction of the drawing or other pictorial representation of the design. If a description of the salient features of the design appears in the application, the description shall also appear in the certificate. A certificate of registration shall be admitted in any court as prima facie evidence of the facts stated in the certificate.
Section 1315. Publication of announcements and indexes
(a) Publications of the Administrator. The Administrator shall publish lists and indexes of registered designs and cancellations of designs and may also publish the drawings or other pictorial representations of registered designs for sale or other distribution.
(b) File of Representatives of Registered Designs. The Administrator shall establish and maintain a file of the drawings or other pictorial representations of registered designs. The file shall be available for use by the public under such conditions as the Administrator may prescribe.
Section 1316. Fees
The Administrator shall by regulation set reasonable fees for the filing of applications to register designs under this chapter and for other services relating to the administration of this chapter, taking into consideration the cost of providing these services and the benefit of a public record.
Section 1317. Regulations
The Administrator may establish regulations for the administration of this chapter.
Section 1318. Copies of records
Upon payment of the prescribed fee, any person may obtain a certified copy of any official record of the Office of the Administrator that relates to this chapter. That copy shall be admissible in evidence with the same effect as the original.
Section 1319. Correction of errors in certificates
The Administrator may, by a certificate of correction under seal, correct any error in a registration incurred through the fault of the Office, or, upon payment of the required fee, any error of a clerical or typographical nature occurring in good faith but not through the fault of the Office. Such registration, together with the certificate, shall thereafter have the same effect as if it had been originally issued in such corrected form.
Section 1320. Ownership and transfer [5]
(a) Property Right in Design. The property right in a design subject to protection under this chapter shall vest in the designer, the legal representatives of a deceased designer or of one under legal incapacity, the employer for whom the designer created the design in the case of a design made within the regular scope of the designer's employment, or a person to whom the rights of the designer or of such employer have been transferred. The person in whom the property right is vested shall be considered the owner of the design.
(b) Transfer of Property Right. The property right in a registered design, or a design for which an application for registration has been or may be filed, may be assigned, granted, conveyed, or mortgaged by an instrument in writing, signed by the owner, or may be bequeathed by will.
(c) Oath or Acknowledgment of Transfer. An oath or acknowledgment under section 1312 shall be prima facie evidence of the execution of an assignment, grant, conveyance, or mortgage under subsection (b).
(d) Recordation of Transfer. An assignment, grant, conveyance, or mortgage under subsection (b) shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, unless it is recorded in the Office of the Administrator within 3 months after its date of execution or before the date of such subsequent purchase or mortgage.
Section 1321. Remedy for infringement
(a) In General. The owner of a design is entitled, after issuance of a certificate of registration of the design under this chapter, to institute an action for any infringement of the design.
(b) Review of Refusal To Register. (1) Subject to paragraph (2), the owner of a design may seek judicial review of a final refusal of the Administrator to register the design under this chapter by bringing a civil action, and may in the same action, if the court adjudges the design subject to protection under this chapter, enforce the rights in that design under this chapter.
(2) The owner of a design may seek judicial review under this section if-
(A) the owner has previously duly filed and prosecuted to final refusal an application in proper form for registration of the design;
(B) the owner causes a copy of the complaint in the action to be delivered to the Administrator within 10 days after the commencement of the action; and
(C) the defendant has committed acts in respect to the design which would constitute infringement with respect to a design protected under this chapter.
(c) Administrator as Party to Action. The Administrator may, at the Administrator's option, become a party to the action with respect to the issue of registrability of the design claim by entering an appearance within 60 days after being served with the complaint, but the failure of the Administrator to become a party shall not deprive the court of jurisdiction to determine that issue.
(d) Use of Arbitration To Resolve Dispute. The parties to an infringement dispute under this chapter, within such time as may be specified by the Administrator by regulation, may determine the dispute, or any aspect of the dispute, by arbitration. Arbitration shall be governed by title 9. The parties shall give notice of any arbitration award to the Administrator, and such award shall, as between the parties to the arbitration, be dispositive of the issues to which it relates. The arbitration award shall be unenforceable until such notice is given. Nothing in this subsection shall preclude the Administrator from determining whether a design is subject to registration in a cancellation proceeding under section 1313(c).
Section 1322. Injunctions
(a) In General. A court having jurisdiction over actions under this chapter may grant injunctions in accordance with the principles of equity to prevent infringement of a design under this chapter, including, in its discretion, prompt relief by temporary restraining orders and preliminary injunctions.
(b) Damages for Injunctive Relief Wrongfully Obtained. A seller or distributor who suffers damage by reason of injunctive relief wrongfully obtained under this section has a cause of action against the applicant for such injunctive relief and may recover such relief as may be appropriate, including damages for lost profits, cost of materials, loss of good will, and punitive damages in instances where the injunctive relief was sought in bad faith, and, unless the court finds extenuating circumstances, reasonable attorney's fees.
Section 1323. Recovery for infringement
(a) Damages. Upon a finding for the claimant in an action for infringement under this chapter, the court shall award the claimant damages adequate to compensate for the infringement. In addition, the court may increase the damages to such amount, not exceeding $50,000 or $1 per copy, whichever is greater, as the court determines to be just. The damages awarded shall constitute compensation and not a penalty. The court may receive expert testimony as an aid to the determination of damages.
(b) Infringer's Profits. As an alternative to the remedies provided in subsection (a), the court may award the claimant the infringer's profits resulting from the sale of the copies if the court finds that the infringer's sales are reasonably related to the use of the claimant's design. In such a case, the claimant shall be required to prove only the amount of the infringer's sales and the infringer shall be required to prove its expenses against such sales.
(c) Statute of Limitations. No recovery under subsection (a) or (b) shall be had for any infringement committed more than 3 years before the date on which the complaint is filed.
(d) Attorney's Fees. In an action for infringement under this chapter, the court may award reasonable attorney's fees to the prevailing party.
(e) Disposition of Infringing and Other Articles. The court may order that all infringing articles, and any plates, molds, patterns, models, or other means specifically adapted for making the articles, be delivered up for destruction or other disposition as the court may direct.
Section 1324. Power of court over registration
In any action involving the protection of a design under this chapter, the court, when appropriate, may order registration of a design under this chapter or the cancellation of such a registration. Any such order shall be certified by the court to the Administrator, who shall make an appropriate entry upon the record.
Section 1325. Liability for action on registration fraudulently obtained
Any person who brings an action for infringement knowing that registration of the design was obtained by a false or fraudulent representation materially affecting the rights under this chapter, shall be liable in the sum of $10,000, or such part of that amount as the court may determine. That amount shall be to compensate the defendant and shall be charged against the plaintiff and paid to the defendant, in addition to such costs and attorney's fees of the defendant as may be assessed by the court.
Section 1326. Penalty for false marking
(a) In General. Whoever, for the purpose of deceiving the public, marks upon, applies to, or uses in advertising in connection with an article made, used, distributed, or sold, a design which is not protected under this chapter, a design notice specified in section 1306, or any other words or symbols importing that the design is protected under this chapter, knowing that the design is not so protected, shall pay a civil fine of not more than $500 for each such offense.
(b) Suit by Private Persons. Any person may sue for the penalty established by subsection (a), in which event one-half of the penalty shall be awarded to the person suing and the remainder shall be awarded to the United States.
Section 1327. Penalty for false representation
Whoever knowingly makes a false representation materially affecting the rights obtainable under this chapter for the purpose of obtaining registration of a design under this chapter shall pay a penalty of not less than $500 and not more than $1,000, and any rights or privileges that individual may have in the design under this chapter shall be forfeited.
Section 1328. Enforcement by Treasury and Postal Service
(a) Regulations. The Secretary of the Treasury and the United States Postal Service shall separately or jointly issue regulations for the enforcement of the rights set forth in section 1308 with respect to importation. Such regulations may require, as a condition for the exclusion of articles from the United States, that the person seeking exclusion take any one or more of the following actions:
(1) Obtain a court order enjoining, or an order of the International Trade Commission under section 337 of the Tariff Act of 1930 excluding, importation of the articles.
(2) Furnish proof that the design involved is protected under this chapter and that the importation of the articles would infringe the rights in the design under this chapter.
(3) Post a surety bond for any injury that may result if the detention or exclusion of the articles proves to be unjustified.
(b) Seizure and Forfeiture. Articles imported in violation of the rights set forth in section 1308 are subject to seizure and forfeiture in the same manner as property imported in violation of the customs laws. Any such forfeited articles shall be destroyed as directed by the Secretary of the Treasury or the court, as the case may be, except that the articles may be returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury that the importer had no reasonable grounds for believing that his or her acts constituted a violation of the law.
Section 1329. Relation to design patent law
The issuance of a design patent under title 35, United States Code, for an original design for an article of manufacture shall terminate any protection of the original design under this chapter.
Section 1330. Common law and other rights unaffected
Nothing in this chapter shall annul or limit-
(1) common law or other rights or remedies, if any, available to or held by any person with respect to a design which has not been registered under this chapter; or
(2) any right under the trademark laws or any right protected against unfair competition.
Section 1331. Administrator; Office of the Administrator
In this chapter, the "Administrator" is the Register of Copyrights, and the "Office of the Administrator" and the "Office" refer to the Copyright Office of the Library of Congress.
Section 1332. No retroactive effect
Protection under this chapter shall not be available for any design that has been made public under section 1310(b) before the effective date of this chapter.
—————————- Chapter 13 Endnotes
1 In 1998, the Vessel Hull Design Protection Act added chapter 13, entitled "Protection of Original Designs," to title 17. Pub. L. No. 105-304, 112 Stat. 2860, 2905. The Vessel Hull Design Protection Act is title V of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860.
2 The Satellite Home Viewer Improvement Act of 1999 amended section 1301(b)(3) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-593.
3 In 1999, section 1302(5) was amended to substitute "2 years" in lieu of "1 year." Pub. L. No. 106-44, 113 Stat. 221, 222.
4 The Satellite Home Viewer Improvement Act of 1999 amended section 1313(c) by adding at the end thereof the last sentence, which begins "Costs of the cancellation procedure." Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-594.
5 In 1999, section 1320 was amended to change the spelling in the heading of subsection (c) from "acknowledgement" to "acknowledgment." Pub. L. No. 106-44, 113 Stat. 221, 222.
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Appendix I. Transitional and Supplementary Provisions of the Copyright Act of 1976 [1]
Sec. 102. This Act becomes effective on January 1, 1978, except as otherwise expressly provided by this Act, including provisions of the first section of this Act. The provisions of sections 118, 304(b), and chapter 8 of title 17, as amended by the first section of this Act, take effect upon enactment of this Act.
Sec. 103. This Act does not provide copyright protection for any work that goes into the public domain before January 1, 1978. The exclusive rights, as provided by section 106 of title 17 as amended by the first section of this Act, to reproduce a work in phonorecords and to distribute phonorecords of the work, do not extend to any nondramatic musical work copyrighted before July 1, 1909.
Sec. 104. All proclamations issued by the President under section 1(e) or 9(b) of title 17 as it existed on December 31, 1977, or under previous copyright statutes of the United States, shall continue in force until terminated, suspended, or revised by the President.
Sec. 105. (a)(1) Section 505 of title 44 is amended to read as follows:
"Sec. 505. Sale of duplicate plates
"The Public Printer shall sell, under regulations of the Joint Committee on Printing to persons who may apply, additional or duplicate stereotype or electrotype plates from which a Government publication is printed, at a price not to exceed the cost of composition, the metal, and making to the Government, plus 10 per centum, and the full amount of the price shall be paid when the order is filed."
(2) The item relating to section 505 in the sectional analysis at the beginning of chapter 5 of title 44, is amended to read as follows:
"505. Sale of duplicate plates.".
(b) Section 2113 of title 44 is amended to read as follows:
[To assist the reader, section 2113 of title 44, now designated section 2117, appears in part VII of the Appendix, *infra*, as currently amended.]
(c) In section 1498(b) of title 28, the phrase "section 101(b) of title 17" is amended to read "section 504(c) of title 17".
(d) Section 543(a)(4) of the Internal Revenue Code of 1954, as amended, is amended by striking out "(other than by reason of section 2 or 6 thereof)".
(e) Section 3202(a) of title 39 is amended by striking out clause (5). Section 3206 of title 39 is amended by deleting the words "subsections (b) and (c)" and inserting "subsection (b)" in subsection (a), and by deleting subsection (c). Section 3206(d) is renumbered (c).
(f) Subsection (a) of section 290(e) of title 15 is amended by deleting the phrase "section 8" and inserting in lieu thereof the phrase "section 105". [2]
(g) Section 131 of title 2 is amended by deleting the phrase "deposit to secure copyright," and inserting in lieu thereof the phrase "acquisition of material under the copyright law,".
Sec. 106. In any case where, before January 1, 1978, a person has lawfully made parts of instruments serving to reproduce mechanically a copyrighted work under the compulsory license provisions of section 1(e) of title 17 as it existed on December 31, 1977, such person may continue to make and distribute such parts embodying the same mechanical reproduction without obtaining a new compulsory license under the terms of section 115 of title 17 as amended by the first section of this Act. However, such parts made on or after January 1, 1978, constitute phonorecords and are otherwise subject to the provisions of said section 115.
Sec. 107. In the case of any work in which an ad interim copyright is subsisting or is capable of being secured on December 31, 1977, under section 22 of title 17 as it existed on that date, copyright protection is hereby extended to endure for the term or terms provided by section 304 of title 17 as amended by the first section of this Act.
Sec. 108. The notice provisions of sections 401 through 403 of title 17 as amended by the first section of this Act apply to all copies or phonorecords publicly distributed on or after January 1, 1978. However, in the case of a work published before January 1, 1978, compliance with the notice provisions of title 17 either as it existed on December 31, 1977, or as amended by the first section of this Act, is adequate with respect to copies publicly distributed after December 31, 1977.
Sec. 109. The registration of claims to copyright for which the required deposit, application, and fee were received in the Copyright Office before January 1, 1978, and the recordation of assignments of copyright or other instruments received in the Copyright Office before January 1, 1978, shall be made in accordance with title 17 as it existed on December 31, 1977.
Sec. 110. The demand and penalty provisions of section 14 of title 17 as it existed on December 31, 1977, apply to any work in which copyright has been secured by publication with notice of copyright on or before that date, but any deposit and registration made after that date in response to a demand under that section shall be made in accordance with the provisions of title 17 as amended by the first section of this Act.
Sec. 111. Section 2318 of title 18 of the United States Code is amended to read as follows:
[To assist the reader, section 2318 of title 18, as currently amended, along with related criminal provisions, appears in part VII of the Appendix, *infra*.]
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 infringement.
(1) The Librarian, after consultation with interested organizations and individuals, 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 other countries which are of present or potential public or cultural interest, historical 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
(C) given to or exchanged with the Archives by other libraries, archives, 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 conditions of clause (3) of this subsection; and
(2) to compile, without abridgment or any other editing, portions of such fixations according to subject matter, and to reproduce such compilations for the purpose 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 section 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.
(c) The Librarian or any employee of the Library who is acting under the authority of this section shall not be liable in any action for copyright infringement 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 necessary 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.
—————————- Appendix I Endnotes
1 Part I of the Appendix contains the Transitional and Supplementary Provisions of the Copyright Act of 1976, Pub. L. No. 94-533, 90 Stat. 2541, that do not amend title 17 of the *United States Code.*
2 The correct reference is to "290e," not "290(e)."
————————————————————————————————————
Appendix II. Berne Convention Implementation Act of 1988 [1]
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 recognized 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.
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. [2]
(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.
—————————— Appendix II Endnotes
1 Part II of the Appendix consists of provisions of the Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, that do not amend title 17 of the *United States Code.*
2 The Berne Convention entered into force in the United States on March 1, 1989.
————————————————————————————————————
Appendix III. Uruguay Round Agreements Act [1]
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 rectified, 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 agreement 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 Organization" and "WTO" mean the organization established pursuant to the WTO Agreement.
(9) WTO agreement. The term "WTO Agreement" means the Agreement Establishing 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 approves-
(1) the trade agreements described in subsection (d) resulting from the Uruguay Round of multilateral trade negotiations under the auspices of the General Agreement 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 agreements 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 Agreements, 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.
(c) Authorization of Appropriations. There are authorized to be appropriated 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 Phytosanitary 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.
(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 effect.
(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).
The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Federal-State consultation process established by this paragraph.
(C) Federal-State Cooperation in WTO Dispute Settlement.
(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") concerning 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 designee, 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 consultations, 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 appropriate 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 Representative shall-
(I) notify the State concerned not later than 7 days after a WTO member requests the establishment of a dispute settlement panel or gives notice of the WTO member's decision to appeal a report by a dispute settlement 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 Appellate Body and shall make every effort to ensure that the State concerned is involved in the development of the United States position regarding the response.
(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 Settlement 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 Agreements, except in an action brought by the United States for the purpose of declaring such law or application invalid.
(B) Procedures Governing Action. In any action described in subparagraph (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.
(C) Reports to Congressional Committees. At least 30 days before the United States brings an action described in subparagraph (A), the Trade Representative 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 substantially complied with the requirements of paragraph (1)(C) in connection with the matter.
Following the submission of the report, and before the action is brought, the Trade Representative shall consult with the committees referred to in the preceding 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.
(c) Effect of Agreement With Respect to Private Remedies.
(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 question 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 amendment 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 implemented 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 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.
—————————— Appendix III Endnote
1 Part III of the Appendix consists of provisions of the Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, that do not amend title 17 of the *United States Code.*
————————————————————————————————————
Appendix IV. GATT/Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement, Part II: [1]
Section 6: Layout-Designs (Topographies) of Integrated Circuits
Article 35
Relation to IPIC Treaty
Members agree to provide protection to the layout-designs (topographies) of integrated circuits (hereinafter referred to as "layout-designs") in accordance with Articles 2-7 (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions.
Article 36
Scope of the Protection [2]
Subject to the provisions of paragraph 1 of Article 37 below, Members shall consider unlawful the following acts if performed without the authorization of the right holder: importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected layout-design is incorporated, or an article incorporating such an integrated circuit only insofar as it continues to contain an unlawfully reproduced layout-design.
Article 37
Acts not Requiring the Authorization of the Right Holder
1. Notwithstanding Article 36 above, no Member shall consider unlawful the performance of any of the acts referred to in that Article in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or any article incorporating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the integrated circuit or article incorporating such an integrated circuit, that it incorporated an unlawfully reproduced layout-design. Members shall provide that, after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, he may perform any of the acts with respect to the stock on hand or ordered before such time, but shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated license in respect of such a layout-design.
2. The conditions set out in sub-paragraphs (a)-(k) of Article 31 above shall apply *mutatis mutandis* in the event of any non-voluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder.
Article 38
Term of Protection
1. In Members requiring registration as a condition of protection, the term of protection of layout-designs shall not end before the expiration of a period of ten years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs.
2. In Members not requiring registration as a condition for protection, layout-designs shall be protected for a term of no less than ten years from the date of the first commercial exploitation wherever in the world it occurs.
3. Notwithstanding paragraphs 1 and 2 above, a Member may provide that protection shall lapse fifteen years after the creation of the layout- design.
—————————— Appendix IV Endnotes
1 For an explanation of the relationship of this section of TRIPs to title 17 of the *United States Code*, see the second paragraph of endnote 8, chapter 9, *supra.*
2 The term "right holder" in this section shall be understood as having the same meaning as the term "holder of the right" in the Treaty on Intellectual Property in Respect of Integrated Circuits, done at Washington, D.C., on May 26, 1989.
————————————————————————————————————
Appendix V. Additional Provisions of the Digital Millennium Copyright Act [1]
Section 1. Short Title.
This Act may be cited as the "Digital Millennium Copyright Act".
Title I-WIPO Treaties Implementation
SEC. 101. SHORT TITLE.
This title may be cited as the "WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998".
* * * * * * *
SEC. 104. EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON ELECTRONIC COMMERCE AND TECHNOLOGICAL DEVELOPMENT.
(a) Evaluation by the Register of Copyrights and the Assistant Secretary for Communications and Information. The Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce shall jointly evaluate-
(1) the effects of the amendments made by this title and the development of electronic commerce and associated technology on the operation of sections 109 and 117 of title 17, United States Code; and
(2) the relationship between existing and emergent technology and the operation of sections 109 and 117 of title 17, United States Code.
(b) Report to Congress. The Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce shall, not later than 24 months after the date of the enactment of this Act, submit to the Congress a joint report on the evaluation conducted under subsection (a), including any legislative recommendations the Register and the Assistant Secretary may have.
SEC. 105. EFFECTIVE DATE.
(a) In General. Except as otherwise provided in this title, this title and the amendments made by this title shall take effect on the date of the enactment of this Act.
(b) Amendments Relating to Certain International Agreements. (1) The following shall take effect upon the entry into force of the WIPO Copyright Treaty with respect to the United States:
(A) Paragraph (5) of the definition of "international agreement" contained in section 101 of title 17, United States Code, as amended by section 102(a)(4) of this Act.
(B) The amendment made by section 102(a)(6) of this Act.
(C) Subparagraph (C) of section 104A(h)(1) of title 17, United States Code, as amended by section 102(c)(1) of this Act.
(D) Subparagraph (C) of section 104A(h)(3) of title 17, United States Code, as amended by section 102(c)(2) of this Act.
(2) The following shall take effect upon the entry into force of the WIPO Performances and Phonograms Treaty with respect to the United States:
(A) Paragraph (6) of the definition of "international agreement" contained in section 101 of title 17, United States Code, as amended by section 102(a)(4) of this Act.
(B) The amendment made by section 102(a)(7) of this Act.
(C) The amendment made by section 102(b)(2) of this Act.
(D) Subparagraph (D) of section 104A(h)(1) of title 17, United States Code, as amended by section 102(c)(1) of this Act.
(E) Subparagraph (D) of section 104A(h)(3) of title 17, United States Code, as amended by section 102(c)(2) of this Act.
(F) The amendments made by section 102(c)(3) of this Act.
* * * * * * *
Title II - Online Copyright Infringement Liability Limitation
SEC. 201. SHORT TITLE.
This title may be cited as the "Online Copyright Infringement Liability Limitation Act".
* * * * * * *
SEC. 203. EFFECTIVE DATE.
This title and the amendments made by this title shall take effect on the date of the enactment of this Act.
* * * * * * *
Title IV - Miscellaneous Provisions
SEC. 401. PROVISIONS RELATING TO THE COMMISSIONER OF PATENTS AND TRADEMARKS AND THE REGISTER OF COPYRIGHTS-
(a) Compensation. (1) Section 3(d) of title 35, United States Code, is amended by striking "prescribed by law for Assistant Secretaries of Commerce" and inserting "in effect for level III of the Executive Schedule under section 5314 of title 5, United States Code".
* * * * * * *
(3) Section 5314 of title 5, United States Code, is amended by adding at the end the following:
"Assistant Secretary of Commerce and Commissioner of Patents and Trademarks.
"Register of Copyrights.".
* * * * * * *
SEC. 403. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION.
(a) Recommendations by Register of Copyrights. Not later than 6 months after the date of the enactment of this Act, the Register of Copyrights, after consultation with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives, shall submit to the Congress recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users of copyrighted works. Such recommendations shall include any legislation the Register of Copyrights considers appropriate to achieve the objective described in the preceding sentence.
(b) Factors. In formulating recommendations under subsection (a), the Register of Copyrights shall consider-
(1) the need for an exemption from exclusive rights of copyright owners for distance education through digital networks;
(2) the categories of works to be included under any distance education exemption;
(3) the extent of appropriate quantitative limitations on the portions of works that may be used under any distance education exemption;
(4) the parties who should be entitled to the benefits of any distance education exemption;
(5) the parties who should be designated as eligible recipients of distance education materials under any distance education exemption;
(6) whether and what types of technological measures can or should be employed to safeguard against unauthorized access to, and use or retention of, copyrighted materials as a condition of eligibility for any distance education exemption, including, in light of developing technological capabilities, the exemption set out in section 110(2) of title 17, United States Code;
(7) the extent to which the availability of licenses for the use of copyrighted works in distance education through interactive digital networks should be considered in assessing eligibility for any distance education exemption; and
(8) such other issues relating to distance education through interactive digital networks that the Register considers appropriate.
* * * * * * *
SEC. 405. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS;
EPHEMERAL RECORDINGS.
(a) Scope of Exclusive Rights in Sound Recordings.
* * * * * * *
(5) The amendment made by paragraph (2)(B)(i)(III) of this subsection shall be deemed to have been enacted as part of the Digital Performance Right in Sound Recordings Act of 1995, and the publication of notice of proceedings under section 114(f)(1) of title 17, United States Code, as in effect upon the effective date of that Act, for the determination of royalty payments shall be deemed to have been made for the period beginning on the effective date of that Act and ending on December 1, 2001.
(6) The amendments made by this subsection do not annul, limit, or otherwise impair the rights that are preserved by section 114 of title 17, United States Code, including the rights preserved by subsections (c), (d)(4), and (i) of such section.
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(c) Scope of Section 112(a) of Title 17 Not Affected.
Nothing in this section or the amendments made by this section shall affect the scope of section 112(a) of title 17, United States Code, or the entitlement of any person to an exemption thereunder.
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SEC. 406. ASSUMPTION OF CONTRACTUAL OBLIGATIONS RELATED TO-
TRANSFERS OF RIGHTS IN MOTION PICTURES.
(a) In General. Part VI of title 28, United States Code, is amended by adding at the end the following new chapter: