Table of Contents:

- Amendments to the 1976 Act

Chapter 1 – Introduction

Amendments to the 1976 Act

95th Congress: 1977-1978

In June 1977, six months before the 1976 Act became generally effective, hearings were held on cable television, an issue that refused to go away.317 {Page 90} Another issue left unresolved in the 1976 Act, performance rights in sound recordings, was the subject of a hearing in 1978,318 but without legislative success. The first substantive amendment to the Act occurred in November 1978, when Section 201(e) was revised to permit involuntary transfers under the Bankruptcy Act.319

96th Congress: 1979-1980

In July 1978, the National Commission on New Technological Uses of Copyrighted Works (CONTU) issued its final report, recommending several changes in the Copyright Act.320 The House held a brief hearing on the CONTU recommendations in 1980.321 On December 12, 1980, President Carter signed into law a substitute Section 117, adopting a number (but not all) of CONTU’s recommendations.322 Under the revised Section 117, owners of lawful copies of computer programs (as defined for the first time in the amendment) are permitted to make another copy or adaptation of the program “as an essential step in the utilization of the computer program in conjunction with a machine,” or as a backup in the event of inadvertent destruction of the original. Restrictions are placed on transfers of copies or adaptations made under the section.323

At the same time the CONTU report was being considered by Congress, another new technological issue, protection for the designs of semiconductor chips, was raised in the form of a proposed amendment to the definition of “pictorial, graphic, and sculptural works” to include such works.324 A hearing was held in Northern California’s “Silicon Valley” on April 16, 1979, but it turned into an embarrassment when virtually half the industry opposed protection.325

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The issue of a performance right in sound recordings was the subject of another hearing in 1979,326 as was the question of off-air taping of television programming for educational purposes,327 but without legislative action. An oversight hearing was held on the operation of the Copyright Office and the CRT under the new Act.328

97th Congress: 1981-1982

The years 1981-1982 saw heightened interest in cable television as the CRT began issuing decisions adjusting the compulsory license rates.329 A cable {Page 92} reform bill passed the House on September 28, 1982, but died in the Senate.330 Extensive hearings were also held on an issue that dramatically burst on the national scene as a result of the famous Betamax case331:home off-air videotaping of free broadcast television programming.332 The work-made-for-hire provisions were also examined,333 as was the question of a performance right for sound recordings.334

A number of legislative efforts succeeded in 1982, however. Congress handed President Reagan his first veto override by extending the manufacturing clause until July 1, 1986335; an exemption was created for performances of nondramatic literary or musical works by nonprofit veterans’ and fraternal organizations336 ; increased penalties for trafficking in counterfeit labels for phonorecords, motion pictures, and audiovisual works and for criminal infringement {Page 93} of these works were added337 ; and the Copyright Office was allowed to retain filing fees in cases where applications were submitted but not accepted.338

98th Congress: 1983-1984

As the U.S. trade deficit grew, increased emphasis was placed on protecting U.S. intellectual property overseas, because copyrighted and patented works help contribute to a favorable balance of payments. In 1983, during the first session of the 98th Congress, a number of hearings were held on trade issues,339 on increasing American competitiveness through relaxation of the antitrust laws,340 and on the relationship between copyright and new technologies.341 Hearings were also held on home video and audio taping,342 on modifying {Page 94} the first sale doctrine for audio and video works,343 on the jukebox compulsory license rate,344 and on the cable television compulsory license rates.345 However, because intellectual property legislation is typically passed during the second session of a Congress, these hearings served to lay the groundwork for the second session of the 98th Congress, in 1984. The sole exception to the general rule of second session passage was the enactment of the Caribbean Basin Economic Recovery Act of 1983, which conditioned duty-free treatment of imports from Caribbean countries on those countries’ respect for the intellectual property rights of U.S. authors.346

True to form, the second session of the 98th Congress passed a number of bills, although only one amendment was made to the Copyright Act: spurred on by the advent of compact discs, the so-called “first sale” or “exhaustion” doctrine, embodied in Section 109, was revised to prohibit the unauthorized rental, lease, or lending of phonorecords for direct or indirect commercial advantage.347 Reflecting the growing international distribution (and piracy) of works by satellites, the United States ratified the Brussels Satellite Convention {Page 95} on December 7, 1984.348 Also on the international front, and building on the Caribbean Basin Economic Recovery Act of 1983, Congress added requirements for the adequate and effective protection of U.S. intellectual property rights in the renewal of the General System of Preferences,349 and in the International Trade and Investment Act of 1984.350 American competitiveness was also encouraged by relaxing the antitrust laws for joint ventures.351

The Semiconductor Chip Protection Act of 1984,352 the most comprehensive piece of intellectual property legislation passed that year,353 began as a proposed amendment to the Copyright Act, but ended up according sui generis protection to semiconductor “mask works.” Other important changes, discussed in Chapter 16, were accomplished administratively by the CRT through adjustments in the cable compulsory license payments required of jukebox and cable television operators and those making and distributing phonorecords embodying nondramatic musical works. Copyright Office regulations and policy decisions also had an important impact in the area of cable television.

99th Congress: 1985-1986

In 1985, the first session of the 99th Congress saw a number of bills introduced and hearings held, but only one (very minor) piece of legislation enacted: a bill granting the Parliamentarian of the Senate copyright in a publication of the Senate rules.354 Perhaps the most important hearings held were {Page 96} those on possible United States adherence to the Berne Convention355; others concerned the ever-present cable television issue (including proposals to abolish the CRT),356 home audio recording royalties,357 and an attempt to overturn the Supreme Court’s decision in Mills Music, Inc. v. Snyder.358 Continued oversight hearings on the relationship between copyright and new technologies, especially those in the broadcast field, were held in the House,359 while the Senate looked into civil and criminal enforcement issues.360

The second session of the 99th Congress (like the 98th) only saw one copyright bill become law: H.R. 3108, introduced by Representative Robert W. Kastenmeier to clarify the eligibility of low power television stations for the Section 111 compulsory license, and to eliminate the need for cable systems to file certain statements with the Copyright Office.361

The effectiveness of a congress should not, however, be measured solely by the number of bills passed; the defeat of ill-advised legislation is equally important. The year 1986 was a landmark year in this respect, as proposals to extend the manufacturing clause were defeated,362 and the clause expired on July 1, 1986.

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The defeat of the manufacturing clause was the result of opposition from U.S. trading partners and intervention by the Administration, which had been persuaded that the very slight possible negative effect on the domestic printing industry from expiration of the provision was more than offset by the international benefits.363

Abolition of the manufacturing clause was necessary if the United States was ever to adhere to the Berne Convention, an issue that was the subject of a one-day hearing in the Senate on April 15, 1986.364 Following this hearing, on June 18, 1986, President Reagan sent the treaty to the Senate for its advice and consent.365 More extensive hearings were held before various subcommittees in both Houses on general trade issues related to intellectual property.366 Hearings were also held on moral rights and resale royalties for visual artists.367

Questions about reception of copyrighted broadcast programs by home satellite dishes, a new technology, arose as well, and, as with Berne adherence, would later bear fruit.368 Finally, and in the same category of ill-advised legislation as extension of the manufacturing clause, efforts to require licensing of the {Page 98} synchronization right for musical compositions used in television programming were defeated.369

100th Congress: 1987-1988

No copyright legislation was passed in 1987.370 Instead, bills were introduced and hearings held in order to provide the framework for further legislative action, including hearings on moral rights for visual artists,371 mandatory licensing of the synchronization right for musical compositions used in television programming,372 computer software rental,373 design legislation,374 and yet another new technology: digital audio tape machines.375

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An oversight hearing was held on intellectual property and international trade,376 a topic that was also related to the commencement, on June 17, 1987, of deliberations on Berne adherence by the House Subcommittee on Courts, Civil Liberties and the Administration of Justice.377 These deliberations led to passage, in 1988, of implementing legislation to conform U.S. law to the minimum Berne standards, and to adherence to the Convention on March 1, 1989.

The Berne Implementation Act of 1988

The Senate held its final hearings on Berne adherence on February 18 and March 3, 1988.378 The Senate Subcommittee on Patents, Copyrights, and Trademarks marked up and reported a Berne implementation bill on April 13, 1988; the Senate Judiciary Committee favorably reported the bill the next day,379 but passage was blocked by the placement of a floor hold on the bill by Senator Claiborne Pell at the request of Librarian of Congress James H. Billington. The Librarian, acting on behalf of the Copyright Office, objected to the bill’s proposal to eliminate the Section 411(a) requirement of registration before suit. Meanwhile, the House Subcommittee on Courts, Civil Liberties and the Administration of Justice resumed hearings on February 9 and 10, 1988.380 On March 10, 1988, the Subcommittee marked up H.R. 1623, its Berne implementation bill. After debate, the Subcommittee approved a substitute amendment. On March 28, 1988, a clean bill, H.R. 4262, reflecting the substitute amendment, was introduced. On April 28, 1988, this bill was considered by the Committee on the Judiciary, and as amended, was approved and favorably reported.381 On July 14, 1988, the Senate Foreign Relations Committee reported {Page 100} the treaty.382 On May 10, 1988, the bill passed the House with a vote of 420-0.383

The action then shifted to the Senate, which passed its Berne implementing legislation on October 5, 1988.384 The treaty was ratified the same day. The implementation bill that passed, however, differed in a number of respects from the bill reported by the Senate Judiciary Committee on April 14, the differences reflecting informal agreements between the two Houses, eliminating the need for a conference. In a parliamentary move, the text of the Senate bill, S. 1301, was passed by the Senate as an amendment to the House passed bill, H.R. 4262, giving the legislation a House bill number. The House then took up the Senate passed version of H.R. 4262 on October 17, 1988, passing it unanimously.385 On October 31, 1988, in Beverly Hills, California, President Reagan signed H.R. 4262 into law.386 The legislation and the treaty were effective on March 1, 1989.

The changes made in U.S. law by this legislation are discussed in various chapters of this text, especially Chapter 17; hence, we will only briefly touch on them here. The most significant changes made by the legislation were the following:

1. Abolition of the mandatory notice requirement for published works.

2. Abolition of the requirement in Section 205(d) that recordation of transfer of ownership be obtained before the institution of an infringement action.

3. Establishment of a “two-tier” system for the mandatory requirement in Section 411 that registration be sought before the institution of an infringement action, pursuant to which works whose country of origin is a Berne country other than the United States do not have to comply with Section 411.

4. Establishment of a voluntary jukebox license as an alternative to the compulsory license.

5. Doubling of the maximum allowable statutory damages.

In special declarations contained as notes to title 17,387 the legislation makes very clear that the Convention is not self-executing and that, therefore, any rights exist solely in domestic law. This was particularly important in the area of moral rights, which were the subject of separate hearings.388

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Other Legislation

Three unrelated pieces of legislation were passed in 1988: in the first, Congress responded to the scrambling of pay cable signals and the needs of rural Americans by enacting the Satellite Home Viewer Act of 1988.389 The essence of this lengthy, complicated provision was the establishment, in new Section 119, of a “statutory” (compulsory) license for the secondary transmission of superstations for private viewing by satellite dish owners.390 Retransmission of a network signal was also permitted if the dish owner was unable to receive the signal over-the-air (i.e., lives in an unserved household, called a “white area”).391 The license fee for 1989-1992, set in the statute, required a semiannual payment by the satellite carrier (the middleman)392 of 12 cents per subscriber for each superstation, and 3 cents per subscriber for each network station.393 For 1992-1994, the rate was set by a compulsory arbitration panel at 17.5 cents per subscriber for superstations not subject to syndicated exclusivity protection, 14 cents per subscriber for stations subject to syndicated exclusivity protection, and 6 cents per subscriber for network stations.394

The second piece of legislation passed in 1988 was the extension of the ban on commercial rental of records, first enacted in 1984.395 Under the {Page 102} legislation,396 the ban was extended until October 4, 1997.397 The question of a similar ban on computer programs was the subject of a hearing in the Senate in 1988. This hearing provided the framework for legislation passed in 1990.398

The third piece of legislation touching directly on intellectual property was the Omnibus Trade and Competitiveness Act of 1988.399 This Act, discussed in Chapter 17,400 sets forth negotiating objectives of the United States including the adequate and effective protection of U.S. intellectual property overseas, as well as a series of steps that the United States Trade Representative must take to ensure such protection is in place.

101st Congress: 1989-1990

The 101st Congress saw a hodge-podge of legislative activity, with six bills enacted. Two bills were essentially housekeeping measures: (1) Copyright Office fees were doubled effective January 1, 1991, with the basic registration fee set at $20401; and (2) the number of CRT commissioners was reduced from five to three.402

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More substantive legislation began with the Copyright Remedy Clarification Act, under which states and their instrumentalities (as well as state employees individually) were made expressly liable for money damages for infringement.403 This Act reversed a series of lower court cases404 interpreting the Copyright Act as insufficiently expressing Congress’s desire to abrogate states’ {Page 104} sovereign immunity, according to the standard established by the Supreme Court’s 1985 decision in Atascadero State Hospital v. Scanlon.405

The first sale doctrine was also amended to prohibit the commercial rental of software for purposes of direct or indirect commercial advantage.406 Although {Page 105} patterned after the Record Rental Act of 1984, there were differences between the two Acts. For example, the exemption for lending of software by noncommercial educational institutions and libraries was broader than that for phonorecords. Additionally, there were a number of provisions tailored to software: (1) electronic audiovisual games (such as Nintendo and Sega) and computer programs as embodied in automobiles, microwave ovens, and other machines may be rented; and (2) the Fourth Circuit’s decision in Red Baron-Franklin Parks, Inc. v. Taito Corp.407 (upholding a claim by the copyright owner of an electronic audiovisual game intended for use in coin-operated arcade games that Section 109 does not act as a limitation on the Section 106(4) public performance right) was reversed effective December 1, 1991, to October 1, 1995.

The first federal copyright moral rights protection was enacted in the Visual Artists Rights Act of 1990.408 This Act represents the Congress’s willingness, in light of adherence to the Berne Convention, to experiment with extending authors’ rights along the lines found in other Berne member countries. At the same time, however, Congress rejected calls for broader moral rights, especially in the film industry.409

The Visual Artists Rights Act is limited to a narrowly defined class of works of the visual arts,410 and ironically in light of its roots in our adherence to the Berne Convention, conditions rights upon compliance with two formalities: (1) copies of a work of visual art must be consecutively numbered; and (2) copies of a work of visual art must be either signed by the artist or bear his or her identifying mark.411 The rights granted are contained in new Section {Page 106} 106A, and include the right to claim authorship of the work; the right to prevent the use of the artist’s name as the author of a work of visual art he or she did not create412; the right to prevent the use of his or her name as the author of a work of visual art that has been distorted, mutilated, or modified in a way that would be prejudicial to his or her honor or reputation413; the right to prevent any intentional distortion, mutilation, or other modification of a work of visual art that would be prejudicial to his or her honor or reputation; as well as the right to prevent any destruction of a work of “recognized stature.”414

Exceptions are provided for modifications of works that are the result of the passage of time or the inherent nature of the materials,415 and that are the result of conservation, or of public presentation, including lighting and placement.416 Complicated provisions govern the removal of works of visual art embodied in buildings.417 Rights may be waived, provided the waiver is express, in writing, and specifically identifies the work and the uses to which the waiver applies418;rights may not be transferred. The term of protection is life of the author, but state laws that provide protection beyond the life of the author are not preempted (although it is unclear whether they are preempted during the author’s life).419

Another offshoot of Berne adherence was the first new category of subject matter since passage of the 1976 Act:420 an “architectural work,”421 the design of a built three-dimensional structure.422 The Act covered structures either lived {Page 107} in or used by humans, such as houses, office buildings, museums, churches, belvederes, pergolas, gazebos, garden pavilions, as well as works that were difficult to classify, such as the “engineering architecture” of Santiago Calatrava. Bridges, highway overpasses, canals, dams, and pedestrian walkways were excluded.423 Common windows, doors, and other staple building components are also outside the scope of protection in order to avoid tying up basic architectural vocabulary424 (although any individual features that reflect the architect’s creativity may be protected, as well as an original combination of individually unprotectible elements).425

Two special limitations were placed on copyrighted architectural works: (1) an exemption was provided for the making, distributing, or public displaying of two-dimensional reproductions of architectural works located in or ordinarily visible from public places426;and (2) owners of buildings embodying protected architectural plans could make alterations without the permission of the copyright owner, and may destroy the building.427 Finally, an amendment was made to Section 301 to ensure that state and local landmark, historical preservation, zoning, and building codes are not preempted.428

As in past Congresses, bills were introduced and hearings held on issues that did not result (at least immediately) in legislation. These included fair use of unpublished works,429 a proposed exemption for the public performance of {Page 108} videocassettes in hospitals,430 mandatory fees for prevailing plaintiffs who are individuals or small businesses,431 moral rights,432 works made for-hire,433 design protection,434 government ownership of computer software,435 and digital audio home recording.436 Oversight hearings were held on trade and intellectual property,437 and the appropriateness of copyright for computer software.438

102d Congress: 1991-1992

Three copyright bills and a sui generis chapter in title 17, United States Code, were enacted in the 102d Congress.

The first copyright bill to pass the 102d Congress, the Copyright Amendments {Page 109} Act of 1992, had three titles. Title I contained the Copyright Renewal Act of 1992439 and abolished the requirement that works published between 1964 and 1977 (the last year the 1909 Act governed such issues) be renewed in the Copyright Office or fall into the public domain.

Under the Act, works first published between 1964 and 1977 are automatically renewed for the full 48-year term granted in Section 304(a) of the 1976 Act. Renewal applications can still be filed with the Copyright Office (and at any time during the renewed and extended term), with modest incentives provided for renewal.440

The Act also clarified in whom the renewal term vests: Where a renewal application is made within the 28th year of the first term, the renewal vests, {Page 110} on the first day of the 29th year of the copyright, in the person entitled to the renewal according to Section 304(a)(1)(C) at the time the application is made.441 Where no application is made or the claim was not registered, the renewal vests, on the first day of the 29th year of the copyright, in the person entitled to the renewal according to Section 304(a)(1)(C) on the last day of the 28th year.442 The renewal fee was increased to $20, matching original term registrations.

Title II of the Copyright Amendments Act of 1992 abolished the Section 108(i) requirement that the Copyright Office prepare, every five years, a report on the extent to which Section 108, governing library photocopying, had “achieved the intended statutory balancing of the rights of creators, and the needs of users.”443 After two such reports (1983, 1988), the feeling was “enough said.”

After three years of effort, and a number of iterations, the 102d Congress passed the following amendment to the end of Section 107, dealing with fair use of unpublished works: “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”444 The legislation was introduced out of misplaced concerns {Page 111} by some publishers and authors that the Second Circuit’s decisions in Salinger v. Random House, Inc.445 and New Era Publications International ApS v. Henry Holt & Co.446 would make the publication of biographies and history using unpublished material more difficult by allegedly erecting a per se rule against fair use of unpublished works. Although the Second Circuit’s subsequent decision in Wright v. Warner Books, Inc.447 would appear to have addressed these concerns, publishers continued to argue they were inhibited. Rather than overruling previous decisions, the legislation was crafted carefully to remove any per se rule barring fair use of unpublished works. Decisions issued after enactment have followed this purpose.448

The next copyright bill to pass revamped the felony provisions for copyright infringement.449 This bill was introduced on April 13, 1991, as an effort by Senator Hatch to amend the felony provisions of 18 U.S.C. §2319 to include computer programs. At that time, only infringement of audiovisual works and sound recordings could give rise to felony prosecution.450 Senator Hatch’s bill, S. 893, first passed the Senate on July 27, 1991, as part of an omnibus crime package, and then again on June 4, 1992, as a separate bill.451 S. 893 was referred to the House Subcommittee on Intellectual Property and Judicial Administration on June 11, 1992. The Subcommittee held a hearing on August 12, 1992.452 On September 10, 1992, the Subcommittee marked up S. 893 with an amendment in the nature of a substitute, the amendment taking {Page 112} the global approach ultimately enacted. On September 30, 1992, the Judiciary Committee ordered the bill reported to the floor with a substitute to the amendment in the nature of a substitute reported by the Subcommittee, and with an amendment offered by Mr. Campbell limiting felony liability to acts of infringement that occur within a 180-day period.453 The bill passed the House on October 3,454 and the Senate on October 8, 1992.455 President Bush signed the bill into law on October 28, 1992.

The new Act amended 18 U.S.C. §2319 by providing first-time felony penalties for violation of the reproduction and distribution rights for all types of copyrighted works (the misdemeanor provisions, which applied to all the Section 106 rights for all subject matter, were left unchanged). In order for a felony violation to occur, the acts must be committed willfully and for purposes of commercial advantage or private financial gain. The term “willfully” is undefined, but the legislative history indicates the term means knowledge that the conduct was prohibited by law.456 Additionally, at least ten copies with a retail value of more than $2,500 must be reproduced or distributed within a 180-day period.

The most comprehensive intellectual property enacted by the 102d Congress was the Audio Home Recording Act of 1992,457 which added a new {Page 113} Chapter 10 to title 17. The Act regulates the importation and distribution of digital audio recording devices (e.g., digital audio tape machines, Sony Mini-Disc machines, and Philips Digital Compact Cassette machines). No direct amendments were made to the Copyright Act, but Section 1008 of the legislation prohibits the bringing of copyright infringement suits against consumers for noncommercial copying of both digital and analog recordings, and against manufacturers and distributors of digital and analog audio devices and media for contributory infringement.

Each “digital audio recording device” or “digital audio interface device”458 imported or distributed must conform to the “Serial Copy Management System,”459 or incorporate either a system that has the same functional characteristics as that system or a system that has been certified by the Secretary of Commerce as prohibiting unauthorized serial copying.460 Royalty payments for each digital audio recording device and medium are paid by either the importer or distributor,461 with penalties provided for the failure to pay the prescribed royalties, failure to incorporate a serial copy prevention system, or circumvention of such a system.462 Because violation of the Act does not give rise to an infringement suit, the obligations under the Act should not be described as a compulsory license.

Royalties are divided into two funds, the Sound Recordings Fund and the Musical Works Fund. The Sound Recordings Fund, which receives 66Þs4Þs6Þs2c9 percent of the royalties, distributes 60 percent of its royalties to sound recording companies and 40 percent to featured performers.463 The Musical Works Fund, {Page 114} which receives 33Þc8 percent of the royalties, distributes 50 percent of its royalties to music publishers and 50 percent to writers.464 Distribution may be made by agreement of the interested parties or, failing agreement, by the Librarian of Congress.

As with any Congress, a number of bills were introduced in the 102d Congress that did not make the cut. Into this category fall the design protection bill,465 bills to overhaul and eventually phase out the cable compulsory license,466 a bill to prohibit copyright in statutory citation forms and case law pagination,467 a bill on film labeling,468 a bill to permit satellite distributors to sue satellite carriers for unlawful discrimination under the Copyright Act,469 bills to grant developers of anti-copying devices for videocassettes standing to sue under the Copyright Act for circumvention of those devices,470 bills to permit the U.S. government to own and transfer copyright in computer programs developed under cooperative {Page 115} research and development agreements,471 and, finally, a bill to grant the U.S. government a copyright in the Flag of the United States and to impose criminal penalties for the destruction of copies of the flag.472 Oversight hearings were held on copyright and telecommunication,473 intellectual property and international issues,474 and fast track trade legislation and intellectual property.475

103d Congress: 1993-1994

The first session of the 103d Congress saw enactment of significant copyright legislation, the Copyright Royalty Tribunal Reform Act of 1993.476 The {Page 116} “reform” referred to in the title of the bill was, in fact, abolition. Under the legislation, effective December 17, 1993, the Copyright Royalty Tribunal (CRT) was abolished and its functions assigned to the Librarian of Congress and ad hoc arbitration panels called “copyright arbitration royalty panels.” Dissatisfaction with the CRT began shortly after its creation, with the chair of {Page 117} the Tribunal testifying in favor of its abolition in 1981.477 In 1985, two House members introduced bills to abolish the agency.478 Throughout its 15-year history, the CRT suffered, in this author’s opinion, from a lack of qualified commissioners. In its last two years, the Tribunal was racked with internal dissension and an unwillingness of the chair to abide by majority rule.479 The principal reason for the Tribunal’s abolition was its episodic workload.480 Data gathered by the House Subcommittee on Intellectual Property and Judicial Administration amply documented that three481 full-time, highly paid commissioners were not needed.482 The solution, ad hoc panels, was not original. From its inception in the 1969 Senate revision bill483 to the Senate’s passage of revision legislation on February 19, 1976, the CRT was not a permanent body, but instead ad hoc panels comprised of three arbitrators selected by the Register of Copyrights. The change to a permanent body came in reaction to the Supreme Court’s January 1976 decision in Buckley v. Valeo,484 finding a separation of powers violation in the appointment process for the Federal Election Commission. Since the Register is appointed by the Librarian of Congress and not by the President, fear that a similar violation of the separation of powers would be found was cited as a reason for the switch to a Presidentially appointed tribunal.

The Copyright Royalty Tribunal Reform Act avoids the Buckley problem by having the Librarian of Congress – a Presidential appointee – select the arbitrators.485 Other than repealing the old jukebox compulsory license in Section 116, the Copyright Royalty Tribunal Reform Act of 1993 did not make any substantive changes in the compulsory licenses themselves.486

The North American Free Trade Agreement (NAFTA) implementing legislation {Page 118} contained two copyright provisions.487 The first repeals the 1997 sunset on the Record Rental Act of 1984,488 thereby making Section 109(b) permanent with respect to the rental, lease, or lending of phonorecords for purposes of direct or indirect commercial advantage.489 The second provision grants retroactive protection to motion pictures first fixed or published in Mexico or Canada (and to works first fixed in or published with such motion pictures) that fell into the public domain because of a failure to comply with the notice requirements of the 1976 Act.490 This protection is conditioned on the copyright owner filing a statement of an intent to have copyright protection restored with the Copyright Office by December 31, 1994.491 If such a statement is filed, nationals or domiciliaries of the United States who made or acquired copies of the motion picture before January 1, 1994, may continue to exploit those copies until January 1996.492

The first session of the 103d Congress also saw proposed major legislation; the Copyright Reform Act of 1993.493 Among the many changes proposed by {Page 119} this legislation are: (1) repeal of the Section 411(a) requirement that authors register their claims with the Copyright Office before instituting infringement actions; (2) repeal of the Section 412 requirement that all authors have registered their works with the Copyright Office before an infringement occurs as a condition of receiving statutory damages and attorney’s fees; (3) a statutory examination standard to be used by the Copyright Office in examining claims is set forth in a revised Section 410(a); (4) an appeals procedure from refusals to register claims to copyright is required in revised Section 410(b); (5) the mandatory deposit provisions of Section 407 were strengthened; (6) the voluntary deposit provisions of Section 408 were liberalized by permitting the Register of Copyrights to determine whether the deposit of descriptive material only or a written obligation to deposit copies at a later date will be sufficient, and by requiring the Register to promulgate broader group registration regulations; and (7) a new short form application is established in Section 409.494

The intent of the Copyright Reform Act is to “eliminate the last significant vestiges of the formality-based approach to United States copyright law,” to assist U.S. trade negotiators “in their efforts to secure adequate and effecive protection for U.S. works overseas” by “eliminating provisions that other countries, reluctant to protect U.S. works, can point to as justification for discrimination against U.S. works,” and “to ensure that domestically, copyright owners will be able to enjoy the remedies that Congress has granted them.”495 The Act also seeks to reign in the Copyright Office, which in recent years had exceeded its authority to examine claims to copyright in an effort to influence the scope of protection given to works by the courts.496

Extension of the Section 119 satellite compulsory license until December 31, 1999, was also proposed along with making available the Section 111 compulsory license to “wireless” cable.497

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A series of oversight hearings on international issues were held in the House,498 while legislative hearings were held in the House on the licensing practices of ASCAP and BMI,499 and progress was made on providing a digital performance right for sound recordings.500

317 Cable Television: Hearings Before the Subcomm. on Communications of the Senate Committee on Commerce, Science & Technology, 95th Cong., 1st Sess.(1977).See also Copyright Issues: Cable Television and Performance Rights: Hearings Before the Subcomm.on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 96th Cong., 1st Sess. (1979).

318 See Performance Rights in Sound Recordings: Hearings Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm.,95th Cong., 2d Sess. (1978). See also Performance Rights in Sound Recordings (Report of the Register of Copyrights), 95th Cong., 2d Sess. (Comm. Print No. 15, June 1978) (and id. at 28-58 for a history of earlier legislative proposals).

319 Act of November 6, 1978, Pub. L. No. 95-598, 95th Cong., 2d Sess., 92 Stat. 2676.

320 Final Report of the National Commission of New Technological Uses of Copyrighted Works (1978).

321 Industrial Innovation and Patent and Copyright Law Amendments: Hearings on H.R. 3033 et al. Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 96th Cong., 2d Sess.(1980).See also H.R. Rep. No. 1307 (pt. 1) (Judiciary Committee), (pt. 2) (Government Operations Committee) 96th Cong., 2d Sess.(1980). There were no Senate hearings.

322 Act of December 12, 1980, Pub. L. No. 96-517, §10(b), 96th Cong., 1st Sess., 94 Stat. 3028.

323 See further discussion in Chapter 9, text at notes 381-418.

324 H.R. 14293, 95th Cong., 2d Sess. (1978); H.R. 1007, 96th Cong., 1st Sess. (1979).

325 Copyright Protection for Imprint Designs on Semiconductor Chips: Hearing Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 96th Cong., 1st Sess. (1979). Four years elapsed before further hearings were held, and by that time, opposition of other members of the copyright community to revision of the Copyright Act to protect chip designs, and similar concerns by the House of Representatives, ultimately resulted in passage of suigeneris legislation in 1984. Act of November 8, 1984, Pub. L. No. 98-620, 98th Cong., 2d Sess., 98 Stat. 3335, 3347. See also The Semiconductor Chip Protection Act of 1984: Hearings on S.1201 Before the Senate Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 98th Cong., 1st Sess.(1983);Copyright Protection for Semiconductor Chips: Hearings on H.R. 1028 Before the House Subcomm.on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 98th Cong., 1st Sess. (1983); S.Rep. No. 475, 98th Cong., 2d Sess. (1984); H.R. Rep. No. 781 (1984) (Star Print); 130 Cong. Rec. S12917 (Oct. 3, 1984); 130 Cong. Rec. E4432-33 (Oct. 10, 1984) (House). Due to the complicated procedural history of the legislation, there is no conference report. Indeed, there were no hearings in either House on the bill as passed.

326 Cable Television and Performance Rights: Hearings Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 96th Cong., 1st Sess. 229-313, 699-783 (1979).

327 Off-Air Taping for Educational Use: Hearing Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 96th Cong., 1stSess. (1979).

328 General Oversight on Patent, Trademark, and Copyright Systems: Hearing Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 96th Cong., 1st Sess. (1979).

329 The flurry of activity was the result of the FCC’s repeal of its syndicated exclusivity rules, Malrite T.V. of New York, Inc. v. FCC, 652 F.2d 1140 (2d Cir. 1981), pet. for cert. denied sub nom. National Ass’n of Broadcasters v. FCC, 454 U.S. 1143 (1982), and the CRT’s consequent increase in the cable compulsory license fee. See Copyright/Cable Television: Hearings Before the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 97th Cong., 1st & 2d Sess. (1981, 1982); Cable Copyright Legislation: Hearing on H.R. 5949 Before the Subcomm. on Telecommunications, Consumer Protection, and Finance of the House Energy & Commerce Comm., 97th Cong., 2d Sess. (1982); Unauthorized Reception of Subscription Television: Hearings Before the Subcomm. on Telecommunications, Consumer Protection and Finance of the House Comm. on Energy & Commerce, 97th Cong., 1st Sess. (1981); Cable Copyright and Signal Carriage Act of 1982: Joint Hearing on H.R. 5949 Before the Comm. on Commerce, Science, and Transportation and the Comm. on the Judiciary of the United States Senate, 97th Cong., 2d Sess.(1982); Oversight of the Copyright Act of 1976: Hearings Before the Senate Judiciary Comm., 97th Cong., 1st Sess. (1981); Cable Television Regulation: Hearings Before the Senate Comm. on Commerce, Science, and Transportation, 97th Cong., 1st & 2d Sess.(1981, 1982); and, Copyright Office, Patent and Trademark Office, and the Copyright Royalty Tribunal: Oversight Hearings Before the House Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 97th Cong., 1st Sess. (1981).

330 H.R. 5949, 97th Cong., 2d Sess. (1982) (Kastenmeier).See also H.R. Rep. No. 559 (pt. 1) (Judiciary Committee), (pt. 2) (Energy & Commerce Committee), 97th Cong., 2d Sess.(1982).

331 Sony Corp. of Am. v. Universal City Studios, Inc., 480 F. Supp. 429 (C.D. Cal. 1979), rev’d, 659 F.2d 963 (9th Cir. 1981), rev’d, 464 U.S. 417 (1984).

332 Copyright Infringements (Audio and Video Recorders): Hearings on S. 1758 Before the Senate Judiciary Comm., 97th Cong., 1st & 2d Sess. (1981, 1982); Home Recording of Copyrighted Works: Hearings on H.R. 4783 et al. Before the House Subcomm.on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 97th Cong., 2d Sess. (1982); Video and Audio Home Taping: Hearings on S. 31 and S. 175 Before the Senate Judiciary Comm., 98th Cong., 1st Sess. (1983).

333 Copyright/Cable Television: Hearings Before the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 97th Cong., 1st & 2d Sess.371-470, 599-644 (1981, 1982).

334 Definition of Work Made for Hire in the Copyright Act of 1976: Hearing on S. 2044 Before the Senate Judiciary Comm., 97th Cong., 2d Sess. (1982).

335 Act of July 13, 1982, Pub. L. No. 97-215, 97th Cong., 1st Sess., 96 Stat. 178. See also Copyright/Cable Television: Hearings Before the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 97th Cong., 1st & 2d Sess. 1019-1264 (1981, 1982); Extension of the Manufacturing Clause of the Copyright Law: Hearing Before the Subcomm. on Trade of the House Ways & Means Comm., 97th Cong., 2d Sess.(1982); H.R. Rep. No. 575 (pt. 1) (Judiciary Comm.), (pt. 2) (Ways & Means Comm.), 97th Cong., 2d Sess. (1982); House Doc. No. 215, 97th Cong., 2d Sess. (veto message).

336 Act of October 25, 1982, Pub. L. No. 97-366, 97th Cong., 2d Sess., 96 Stat. 1759 (adding a new §110(10) to title 17); H.R. Rep. No. 930, 97th Cong., 2d Sess.3 (1982) (Conference report); Copyright/Cable Television: Hearings Before the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 97th Cong., 1st & 2d Sess. (1981, 1982); To Amend the Copyright Act, S. 2082: Hearings on S. 2082 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Judiciary Comm., 96th Cong., 2d Sess.(1980).

337 Act of May 24, 1982, Pub. L. No. 97-180, 97th Cong., 1st Sess., 96 Stat. 91 (amending 18 U.S.C. §2318 and 17 U.S.C. §506(a)). See also Copyright/Cable Television: Hearings Before the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 97th Cong., 1st & 2d Sess. 755-97, 1544-90 (1981, 1982); The Piracy and Counterfeiting Amendments Act of 1981: Hearing on S. 691 Before the Subcomm. on Criminal Law of the Senate Judiciary Comm., 97th Cong., 1st Sess. (1981); H.R. Rep. No. 495, 97th Cong., 2d Sess. (1982); S. Rep. No. 274, 97th Cong., 1st Sess. (1981).

338 Act of October 25, 1982, Pub. L. No. 97-366, 97th Cong., 2d Sess., 96 Stat. 1759; H.R. Rep. No. 494, 97th Cong., 2d Sess. (1982); H.R. Rep. No. 930, 97th Cong., 2d Sess. (1982) (Conference report).

339 See Caribbean Basin Economic Recovery Act: Hearings on H.R. 2769 Before the House Ways & Means Committee, 98th Cong., 1st Sess. (1983); Caribbean Basin Initiative: Hearings Before the Senate Committee on Energy & Natural Resources, 98th Cong., 1st Sess.(1983); H.R. Rep. No. 267, 98th Cong., 1st Sess. (1983) (reporting H.R. 3398, a bill to condition favorable tariff treatment of imports on countries providing adequate and effective intellectual property protection to U.S. works); S. Rep. No. 309, 98th Cong., 1st Sess. (1983) (same); International Copyright/Communications Policies: Hearings on S. 736 Before the Senate Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 98th Cong., 1st Sess.(1983) (a bill to pressure Canada to compensate U.S. authors for retransmissions of their works on Canadian cable television by prohibiting distribution of royalties to Canadian programs retransmitted in the United States). See also Oversight on International Copyrights: Hearing Before the Subcomm.on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 98th Cong., 2d Sess. (1984).

340 Joint Research and Development Legislation: Hearings Before the Subcomm. on Monopolies and Commercial Law of the House Judiciary Comm., 98th Cong., 1st Sess. (1983); The National Productivity and Innovation Act and Related Legislation: Hearings on S. 1841 et al. Before the Senate Judiciary Comm., 98th Cong., 1st & 2d Sess. (1983, 1984).

341 Copyright and Technological Change: Hearings Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 98th Cong., 1stSess. (1983). Hearings were also held on protection for semiconductor chip designs. See supra note 325.

342 Video and Audio Home Taping: Hearings on S. 31 and S. 175 Before the Senate Judiciary Comm., 98th Cong., 1st Sess. (1983).

343 Audio and Video First Sale Doctrine: Hearings on H.R. 1027 et al. Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 98th Cong., 1st Sess. (1983); Audio and Video Rental: Hearings on S. 32 and S. 33 Before the Senate Judiciary Comm., 98th Cong., 1st Sess. (1983).

344 Coin-Operated Phonorecord Player Copyright Act of 1983: Hearing on S. 1734 Before the Subcomm.on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 98th Cong., 1st Sess. (1983).

345 Oversight of the Copyright Office and the Copyright Royalty Tribunal: Hearing Before the Senate Judiciary Comm., 98th Cong., 1st Sess. (1983); Copyright Office/Copyright Royalty Tribunal: Hearing Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 98th Cong., 1st Sess. (1983); Copyright Royalty Fees For Cable Systems: Hearings on H.R. 2902 and H.R. 3419 Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 98th Cong., 1st & 2d Sess. (1983, 1984); The Free Market Copyright Royalty Act of 1983: Hearing on S. 1270 Before the Senate Judiciary Comm., 98th Cong., 2d Sess. (1984).

346 Act of August 5, 1983, Pub. L. No. 98-67, title II 98th Cong., 1st Sess., 97 Stat. 369, 384; H.R. Rep. No. 266, 98th Cong., 1st Sess.(1983). See also Chapter 17, text at note 295.

347 Act of October 4, 1984, Pub. L. No. 98-450, 98th Cong., 2d Sess., 98 Stat. 1727 (amending 17 U.S.C. §§109 and 115); H.R. Rep. No. 987, 98th Cong., 2d Sess.(1984); S. Rep. No. 162, 98th Cong., 1st Sess. (1983). See also Audio and Video First Sale Doctrine: Hearings on H.R. 1027, H.R. 1029, and S. 32 Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 98th Cong., 1st & 2d Sess. (1983, 1984); Home Recording of Copyrighted Works: Hearings Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 97th Cong., 1st & 2d Sess. (1981, 1982); Hearing on S. 32 Before the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 98th Cong., 1st Sess.(1983).

The Act was sunsetted for October 4, 1989, but was renewed in 1988 until October 4, 1997. Se infra text at note 395. The North American Free Trade Agreement made the Act permanent. See infra not 488.

348 The United States had signed the Convention on May 21, 1974. The Convention became effective on March 7, 1985. See further discussion in Chapter 17, text at notes 170-73.

349 Act of October 30, 1984, Pub. L. No. 98-573, 98th Cong., 2d Sess., 98 Stat. 3018; S. Rep. No. 485, 98th Cong., 2d Sess. (1984); H.R. Rep. No. 1090, 98th Cong., 2d Sess. (1984); H.R. Rep. No. 1156, 98th Cong., 2d Sess. (1984) (conference report). See also Chapter 17, text at notes 282-89.

350 Act of October 30, 1984, Pub. L. No. 98-573, 98th Cong., 2d Sess., 98 Stat. 3000.

351 Act of October 11, 1984, Pub. L. No. 98-462, 98th Cong., 2d Sess., 98 Stat. 1815.

352 Act of November 8, 1984, Pub. L. No. 98-620, 98th Cong., 2d Sess., 98 Stat. 3347 (establishing a new chapter 9 in title 17).

353 Congress also revised the cable television provisions of the Communications Act of 1934, in the Act of October 30, 1984, Pub. L. No. 98-549, 98th Cong., 2d Sess., 98 Stat. 2779. One section of this Act dealt with reception of copyrighted broadcast signals by home satellite dish owners. Such reception was permitted, provided, however, that the signal was not scrambled and no marketing system for the licensing of such reception was in place. This legislation led to the scrambling of pay cable programming, like Home Box Office (HBO), and ultimately, to passage of the Satellite Home Viewer Act of 1988. See infra notes 389-94.

354 Act of July 29, 1985, Pub. L. No. 99-75, 99th Cong., 1st Sess., 99 Stat. 176. See supra note 80, for earlier such acts.

355 U.S. Adherence to the Berne Convention: Hearings Before the Senate Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Committee, 99th Cong., 1st & 2d Sess. (1985, 1986).

356 CRT Reform and Compulsory Licenses: Hearings on H.R. 2752 and H.R. 2784 Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 99th Cong., 1st Sess. (1985); Copyright Royalty Tribunal and U.S. Copyright Office: Oversight Hearing Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 99th Cong., 1st Sess. (1985).

357 Home Recording Act: Hearing on S. 1739 Before the Senate Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 99th Cong., 1st & 2d Sess. (1985, 1986). S. 1739 was reported by the Subcommittee on May 21, 1986, but never made it out of the Judiciary Committee. The Senate also held a parallel hearing on video in 1986. See Home Video Recording: Hearing Before the Senate Judiciary Comm., 99th Cong., 2d Sess. (1986).

358 469 U.S. 153 (1985). See Copyright Holder Protection Act: Hearing on S. 1384 Before the Senate Subcomm.on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 99th Cong., 1st Sess. (1985). The bill stalled in part due to constitutional concerns. See Chapter 6, note 176.

359 Copyright and New Technologies: Hearings Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 99th Cong., 1st & 2d Sess. (1985, 1986).

360 Civil and Criminal Enforcement of the Copyright Laws: Hearing Before the Senate Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 99th Cong., 1st Sess. (1985).

361 Act of August 27, 1986, Pub. L. No. 99-397, 99th Cong., 2d Sess., 100 Stat. 848; H.R. Rep. No. 615, 99th Cong., 2d Sess. (1986). This legislation also amended §§111(d) and (e).

362 See Manufacturing Clause of the Copyright Act: Hearings on H.R. 3465 et al. Before the House Subcomm.on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 99th Cong., 2d Sess. (1986); Requirements of the Manufacturing Clause of the Copyright Law: Hearing on H.R. 4696 Before the Subcomm.on Trade of the House Comm. on Ways & Means, 99th Cong., 2d Sess. (1986); Bills to Make Permanent the Manufacturing Clause of the Copyright Act: Hearing on S. 1822 and S. 1938 Before the Senate Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 99th Cong., 2d Sess. (1986); S. Rep. No. 303, 99th Cong., 2d Sess.(1986) (Judiciary Comm.); Amending the Requirements of the Manufacturing Clause of the Copyright Law: Hearing on S. 1822 Before the Senate Finance Comm., 99th Cong., 2d Sess.(1986); S. Rep. No. 322, 99th Cong., 2d Sess. (1986) (Finance Comm.).

363 The integration of intellectual property into trade policy is also reflected in the debates over the manufacturing clause and by the leadership role played by the trade committees; the Judiciary Committees and publishing interests had, effectively, agreed to an extension of the clause.

364 See supra note 355. As an off-shoot to possible Berne adherence, the question of moral rights began to be raised with new vitality, warranting a hearing on a bill to extend such rights to visual artists. Visual Artists Rights Amendment of 1986: Hearing on S. 2796 Before the Senate Subcomm.on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 99th Cong., 2d Sess. (1986).

365 Message from the President of the United States Transmitting the Berne Convention for the Protection of Literary and Artistic Works, Senate Treaty Doc. No. 27, 99th Cong., 2d Sess. (June 18, 1986).

366 See Intellectual Property Rights: Hearing on S. 1860 and S. 1869 Before the Subcomm. on International Trade of the Senate Finance Comm., 99th Cong., 2d Sess. (1986); International Property and Trade: Hearings Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 99th Cong., 2d Sess. (1986). See also S. Rep. No. 71, 100th Cong., 1st Sess.(1987).

367 Visual Artists Rights Amendment of 1986: Hearing on S. 2796 Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Judiciary Comm., 99th Cong., 2d Sess. (1986).

368 See Ensuring Access to Programming for the Backyard Dish Owner: Hearing on H.R. 1769 et al. Before the Subcomm.on Telecommunications, Consumer Protection, and Finance of the House Comm. on Energy & Commerce, 99th Cong., 2d Sess.(1986); Copyright and New Technologies: Hearings Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 99th Cong., 1st & 2d Sess. (1985, 1986), infra text at notes 389-94.

369 Music Licensing Reform: Hearings on H.R. 3521 Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 99th Cong., 2d Sess. (1986); Source Licensing: Hearing on S. 1980 Before the Senate Judiciary Comm., 99th Cong., 2d Sess. (1986).

370 Abill was passed extending the Secretary of Commerce’s authority to issue temporary protection to the mask works of foreign citizens under section 914 of the Semiconductor Chip Protection Act of 1984. Act of November 9, 1987, Pub. L. No. 100-159, 100th Cong., 1st Sess., 101 Stat. 899; H.R. Rep. No. 388, 100th Cong., 1st Sess. (1987); S. Rep. No. 66, 100th Cong., 1st Sess.(1987); Issues Confronting the Semiconductor Industry: Hearing on S. 442 Before the Subcomm.on Technology & The Law of the Senate Judiciary Comm., 100th Cong., 1stSess. (1987).

371 Visual Artists Rights: Hearing on S. 1619 Before the Senate Subcomm. on Patents, Trademarks, and Copyrights of the Senate Judiciary Comm., 100th Cong., 1st Sess. (1987). S. 1619 was reported by the Senate Judiciary Committee, as amended, on October 5, 1988, but did not make it to the floor. See generally Chapter 14.

372 Syndicated Television Music Copyright Reform Act of 1987: Hearing on S. 698 Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Judiciary Comm., 100th Cong., 1st Sess. (1987).

373 The Computer Software Rental Amendments Act of 1988: Hearing on S. 2727 Before the Senate Subcomm.on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 100th Cong., 2d Sess. (1987). An amended version of this legislation passed during the 101st Congress. See infra text at 406-07.

374 The Industrial Innovation and Technology Act: Hearing on S. 791 Before the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 100th Cong., 1st Sess. (1987). See also Protection of Industrial Designs of Useful Articles: Hearing on H.R. 1179 Before the Subcomm. on Courts, Intellectual Property and the Administration of Justice of the House Judiciary Comm., 100th Cong., 2d Sess. (1988).

375 Copyright Issues Presented By Digital Audio Tape: Joint Hearings Before the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm. and the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 100th Cong., 1st Sess. (1987); Digital Audio Tape Recorders: Hearing on H.R. 1384 Before the Subcomm.on Commerce, Consumer Protection, and Competitiveness of the House Comm. on Commerce, 100th Cong., 1st Sess. (1987). The issue faded for a time after a March 1, 1988, report by the National Bureau of Standards critical of the so-called CBS copy-code, see Evaluation of a Copy Prevention Method for Digital Audio Tape Systems, NBSIR 88-3725, but revived again in the 102d Congress, when considerably revised legislation was passed. See infra text at notes 457-64.

376 Intellectual Property and Trade – 1987: Oversight Hearings Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Comm., 100th Cong., 1st Sess. (1987).

377 Berne Convention Implementation Act of 1987: Hearings on H.R. 1623 Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 100th Cong., 1st & 2d Sess. (1987, 1988). Hearings were also held on July 23, and September 16 and 30, 1987.

378 The Berne Convention: Hearings on S. 1301 and S. 1971 Before the Senate Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 100th Cong., 2d Sess. (1988). See supra note 355 for Senate hearings on Berne adherence held in 1985 and 1986.

379 S.Rep. No. 352, 100th Cong., 2d Sess. (1988).

380 Berne Convention Implementation Act of 1987: Hearings on H.R. 1623 Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 100th Cong., 1st & 2d Sess. (1987, 1988). During a congressional recess in November 1987, a delegation of five members of the subcommittee and staff travelled to Geneva and Paris for consultations with foreign copyright experts. Transcripts of the Geneva consultations are reproduced id. at 1135-1217.

381 H.R.Rep. No. 609, 100th Cong., 2d Sess. (1988) (Star Print).

382 Sen. Exec. Rep. No. 17, 100th Cong., 2dSess. (1988).

383 134Cong. Rec. 3079-85 (May 10, 1988).

384 134Cong. Rec. S14544-67 (Oct. 5, 1988).

385 134Cong. Rec. H10091-98 (Oct. 17, 1988).

386 Act of October 31, 1988, Pub. L. No. 100-568, 100th Cong., 2d Sess., 102 Stat. 2854.

387 See Pub. L. No. 100-568, 100th Cong., 2dSess., sections 2 and 3, quoted in Chapter 15, note 103.

388 See Film Integrity Act of 1987: Hearing on H.R. 2400 Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 100th Cong. 2d Sess. (1988); Visual Artists’ Rights: Hearing on H.R. 3221 Before the House Subcomm.on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 100th Cong., 2d Sess. (1988). See also Legal Issues That Arise When Color Is Added To Films Originally Produced, Sold, And Distributed In Black And White: Hearing Before the Subcomm. on Law & Technology of the Senate Judiciary Comm., 100th Cong., 1st Sess. (1987).

Efforts to include moral rights provisions in the Berne implementing legislation were spearheaded, beginning in 1987, by the Directors Guild of America, which wished to prohibit the computer color-encoding of black and white motion pictures and other material alterations to films made without the authorization of the principal director and screenwriter. When it became apparent that these efforts would be unsuccessful, the directors sought separate legislation to accomplish their goal. This too proved impossible, and the directors instead settled for one of the silliest pieces of legislation ever to pass Congress: The National Film Preservation Act of 1988, Act of September 27, 1988, Pub. L. No. 100-446 (included in the Interior Appropriations Act for fiscal year 1989), 100th Cong., 2d Sess., 102 Stat. 1774, 1782, renewed by Act of June 26, 1992, Pub. L. No. 102-307, tit. II, 102d Cong., 2d Sess., 106 Stat. 264, 267.

389 Act of November 16, 1988, Pub. L. No. 100-667 (tit. II), 100th Cong., 2d Sess., 102 Stat. 3949. The Act was effective on January 1, 1989. See the more detailed review of the Act in Chapter 12, text at notes 521-56.

390 17 U.S.C. §119(a)(1)(1989).

391 See 17 U.S.C. §§119(a)(2), (d)(10)(1989,1994) (definition of “unserved household”).

392 17 U.S.C. §119(d)(6)(1989).

393 17 U.S.C. §119(b)(1)(B)(1989).

394 Report of the Arbitration Panel, CRT Docket. No. 91-3-SCRA (filed March 2, 1992), confirmed 57 Fed. Reg. 19,052 (May 1, 1992), reproduced in Copyright L. Rep. (CCH) ¶20,681, corrected 57 Fed. Reg. 21,152 (May 18, 1992); 37 C.F.R. §310.3.

395 Act of October 4, 1984, Pub. L. No. 98-450, 98th Cong., 2d Sess., 98 Stat. 1727. See further discussion in Chapter 11, text at notes 65-94.

396 Act of November 5, 1988, Pub. L. No. 100-617, 100th Cong., 2d Sess., 102 Stat. 3194.

397 The Senate version of the legislation did make the ban permanent, but this provision was compromised in an informal conference. H.R. Rep. No. 776, 100th Cong., 2d Sess.(1988); S. Rep. No. 361, 100th Cong., 2d Sess. (1988); Rental of Sound Recordings: Hearing on H.R. 4310 Before the Subcomm.on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Comm., 100th Cong., 2d Sess. (1988). But see infra note 488.

398 Computer Software Rental Amendments of 1988: Hearing on S. 2727 Before the Senate Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 100th Cong., 2d Sess. (1988). See infra notes 406-07.

399 Act of August 23, 1988, Pub. L. No. 100-418, 102 Stat. 1164, 100th Cong., 2d Sess. (1988).

400 See Chapter 17, text at notes 296-98.

401 Act of July 3, 1990, Pub. L. No. 101-318, 101st Cong., 2d Sess., 104 Stat. 288. See also H.R. Rep. No. 279, 101st Cong., 1st Sess. (1989); S. Rep. No. 267, 101st Cong., 2d Sess. (1990); 135 Cong. Rec. H7064 (Oct. 16, 1989); 136 Cong. Rec. S7913-14 (June 13, 1990); Copyright Office and Copyright Royalty Tribunal Oversight: Hearing Before the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Judiciary Comm., 101st Cong., 1st Sess. (1989).

The fees established under the Act were: registration of claims to copyright: $20; renewal applications: $12; recordation of documents: for a document of six pages or less consisting of no more than one title, $20. Additional titles were $10 each; additional certificates: $8; searches: $20 per hour; filing notice of intention to make an distribute phonorecords (under >§ 115(b)): $12; receipt for deposits: $4; special handling: for both registrations and recordation of documents: $200 (in addition to the regular fee). For each additional claim, the fee was $50;fuIl-term retention of copyright deposits: $135. The Act also permits the Register to increase fees in 1995 and in each subsequent fifth calendar year thereafter to reflect changes in the Consumer Price Index. 17 U.S.C. §708(a)(1990).

The Automatic Renewal Act of 1992, discussed infra text at notes 439-42, increased the renewal fee to $20.

402 Act of July 3, 1990, Pub. L. No. 101-319, 101st Cong., 2d Sess., 104 Stat. 290. See also H.R. Rep. No. 329, 101st Cong., 2d Sess. (1990); S. Rep. No. 268, 101st Cong., 2d Sess. (1990); 135 Cong. Rec. H8457-66 (Nov. 13, 1989)(House); 136 Cong. Rec. S7913-14 (June 13, 1990); Copyright Office and Copyright Royalty Tribunal Oversight: Hearing Before the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Judiciary Comm., 101st Cong., 1st Sess. (1989).

The Register of Copyrights got a pay increase in this legislation, being promoted to the salary equivalent to a Senior Executive Service Level V.

403 Act of November 15, 1990, Pub. L. No. 101-553, 101st Cong., 2d Sess., 104 Stat. 2749. The Act accomplished this result by amending 17 U.S.C. §501(a) and by adding a new §511. See Chapter 15, text at notes 334-41.

Following a report by the Copyright Office, Copyright Liability of States and the Eleventh Amendment: A Report of the Register of Copyrights (June 1988), identical bills were introduced on February 17, 1989, by Rep. Kastenmeier (H.R. 1131) and Sen. DeConcini (S. 497). The House Subcommittee on Courts, Intellectual Property, and the Administration of Justice held hearings on its bill on April 12 and July 11, 1989. Copyright Remedy Clarification Act and Copyright Office Report on the Liability of States: Hearing on H.R. 113] Before the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Judiciary Comm., 101st Cong., 1st Sess. (1989). On July 25, 1989, the Subcommittee marked up H.R. 1311, and unanimously adopted an amendment in the nature of a substitute offered by Chairman Kastenmeier. On July 28, Mr. Kastenmeier introduced a clean bill version of this amendment as H.R. 3045. On October 3, the Judiciary Committee favorably reported the bill. H.R. Rep. No. 282, 101st Cong., 1st Sess. (1989) (with errata sheet). On October 16, 1989, H.R. 3045 passed the House. 135 CONG. REC. H7,066-68 (Oct. 16, 1989). On the Senate side, a hearing on S. 497 was held on May 17, 1989. The Copyright Clarification Act: Hearing on S. 497 Before the Senate Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 101st Cong., 1st Sess. (1989). The Senate Subcommittee on Patents, Copyrights, and Trademarks favorably approved the bill on October 18, 1989. At the Senate Judiciary Committee markup on June 5, 1990, Sen. Grassley offered – and the committee approved – an amendment severely limiting the amount of attorneys’ fees that could be awarded against infringing states. S. Rep. No. 305, 101st Cong., 2d Sess. (1990). The Senate passed S. 497 as amended on June 26, 1990, but substituted the House’s bill number, HR. 3045. On October 15, 1990, a conference committee was held, at which the Senate version was defeated by a vote of 9-1, the one being Senator Grassley. (The Conference Committee report, H.R. Rep. No. 887, 101St Cong., 2d Sess. (1990), mistakenly omits Sen. Grassley’s name as a conferee, and erroneously gives 1989 as the date of the report.) On October 19, 1990, the Senate agreed to the conference report. 136 Cong. Rec. S16284 (Oct. 19, 1990). On October 26, 1990, the House agreed to the Conference report. 136 Cong. Rec. H12977 (Oct. 26, 1990). President Bush signed the bill into law on November 15, 1990. The bill is entirely prospective, governing only “violations that occur on or after the date of enactment.” H.R. Rep. No. 282 at 13.

404 See Chapter 15, note 336.

405 473 U.S. 234 (1985).

406 Act of December 1, 1990, Pub. L. No. 101-650 (tit. VIII), 101st Cong., 2d Sess., 104 Stat. 5089, 5134-37, amending 17 U.S.C. §109(b) and adding §119(e). The Act was generally effective on the date of enactment, with the exception of 17 U.S.C. §119(e), which was effective on December 1, 1991, and which expires on October 1, 1995. The Act as a whole expires on October 1, 1997. Pub. L. No. 101-650, §804, 104 Stat. 5136.

Although Mrs. Schroeder introduced bills on software rental in 1986 and 1987, see Chapter 11, note 95, this Act began as an initiative of Sen. Hatch, who in the 100th Congress introduced S. 2727 and held a field hearing in Provo, Utah. See Computer Software Rental Amendments of 1988: Hearing on S. 2727 Before the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 100th Cong., 2d Sess. (1988). In the 101st Congress, Sen. Hatch introduced S. 198 on January 29, 1989. 135 Cong. Rec. S568 (Jan. 29, 1989). On June 22, 1989, Mr. Synar and numerous cosponsors introduced a companion bill, H.R. 2740. 135 Cong. Rec. H3084 (June 22, 1989). A hearing on 5. 198 was held by the Senate Subcommittee on Patents, Copyrights, and Trademarks on March 19, 1989. Computer Software Rental Amendments of 1989: Hearing on 5. 198 Before the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 101st Cong., 1st Sess. (1989). On July 26, 1989, the Subcommittee approved an amendment in the nature of a substitute that included provisions permitting rental and lending of software of Nintendo and similar electronic audiovisual game cartridges by nonprofit institutions and libraries. The bill was not reported by the Senate Judiciary Committee until April 19, 1990. S. REP. No. 265, 101st Cong., 2d Sess. (1990). On May 1, 1990, the Senate passed S. 198 with a floor amendment, 136 Cong. Rec. S5533 (daily ed. May 1, 1990) (remarks of Sen. Hatch, explaining amendment). A hearing on H.R. 2740 was held in the House on July 30, 1990. Computer Software Rental: Hearing on H.R. 2740, S. 198 and HR. 5297 Before the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Judiciary Comm., 101st Cong., 2d Sess. (1990). On August 3, 1990, Mr. Kastenmeier, Mr. Synar, and Mr. Moorhead introduced a clean bill version of H.R. 2740 as HR. 5498 (H.R. 5498 had another title extending protection to architectural works). H.R. 5498 was marked up and approved by the House Subcommittee on Courts, Intellectual Property, and the Administration of Justice on September 14, 1990. On September 18, 1990, the Judiciary Committee marked up the bill and ordered it reported to the House with an amendment offered by Mr. Synar, after defeating an amendment offered by Mr. Hyde to delete the so-called “Red Baron” section (17 U.S.C. § 109(e)(1990)). On September 21, the Judiciary Committee reported the bill to the House. H.R. Rep. No. 735, 101st Cong., 2d Sess. (1990). On September 27, 1990, the House passed H.R. 5498 after adding on the floor H.R. 2690, a bill extending moral rights to visual artists. Passage of H.R. 5498 was then vacated, with the House passing in lieu 5. 198 with an amendment substituting the text of H. R. 5498 as just passed by the House, 136 Cong. Rec. H8266 (daily ed. Sept. 27, 1990) (remarks of Mr. Kastenmeier). Not to be outdone, on October 16, 1990, the Senate repassed 5. 198 after tacking on provisions on civil RICO (Racketeer Influenced and Corrupt Organizations) reform, antitrust intellectual property reform, abrogation of state sovereign immunity for patent infringement, and sports lottery reform. 136 Cong. Rec. S16302 (daily ed. Oct. 16, 1990). On October 27, 1990, the final day of the session, the Senate passed H.R. 5316, a judicial reform package with the computer software rental provisions attached as title VIII. 136 Cong. Rec. S 17574 (daily ed. Oct. 27, 1990). The House passed H.R. 5316 the same legislative day, 136 Cong. Rec. 13314 (daily ed. Oct. 27, 1990) (remarks of Mr. Kastenmeier). President Bush signed H.R. 5316 into law on December 1, 1990.

407 883 F.2d 275 (4th Cir. 1989), cert. denied, 110 S. Ct. 869 (1990).

408 Act of December 1, 1990, Pub. L. No. 101-650 (tit. VI), 101st Cong., 2d Sess., 104 Stat. 5089, 5128. See generally, Chapter 14. Except for studies by the Copyright Office on waiver of rights, the Act was effective on June 1, 1991. See Pub. L. No. 101-650, §610 (not codified). The Act was partially retroactive, with §610(b) covering “(1) works created before [June 1, 1991] but title to which has not, as of such . . . date, been transferred from the author.”

The legislative history of the Act is quite complicated, and is given in Chapter 14, note 1.

409 See Moral Rights and the Motion Picture Industry: Hearing Before the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Judiciary Comm., 101st Cong., 2d Sess. (1990).

410 The definition of “work of visual art” is a textbook example of poor legislative drafting. After starting sensibly enough with defining the term to include paintings, drawings, prints, and sculptures existing in an original or 200 or fewer copies as well as still photographic images produced for exhibition purposes existing in a single copy or 200 or fewer copies, the Act states exclusions from the term. These exclusions include data bases, electronic information services, as well as other types of subject matter no one could remotely consider as a “work of visual art.” See 17 U.S.C. §101 (1991)(definition of “work of visual art”).

411 See 17 U.S.C. §101 (1991) (definition of “work of visual art”). “Single” original paintings, drawings, prints, and sculptures need not be signed or consecutively numbered; a “single” original still photograph intended for exhibition purposes only need only be signed.

412 17 U.S.C. §106A(a)(1)(1991).

413 Id. at (a)(2).

414 Id. at (a)(3).

415 Id. at (c)(1).

416 Id. at (c).

417 Id. at (a).

418 Id.

419 17 U.S.C. §301(f)(2)(C)(1991).

420 17 U.S.C. §102(a)(8)(1990). Architectural plans and drawings remain protected under §102(a)(5).

421 See 17 U.S.C. §101 (1990) (“An ‘architectural work’ is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features”). The Act contains a special retroactivity provision, extending protection to architectural works that on December 1, 1990, were unconstructed and embodied in unpublished architectural plans or drawings. Act of December 1, 1990, Pub. L. No. 101-650 (tit. VII), sec. 706(2), (not codified) 101st Cong., 2d sess.

422 Act of December 1, 1990, Pub. L. No. 101-650 (tit. VII), 101st Cong., 2d Sess., 104 Stat. 5089, 5133. On February 7, 1990, Mr. Kastenmeier introduced two alternative bills to extend copyright protection to the design of three-dimensional architectural works, H.R. 3990 and H.R. 3991, in order to place the United States unequivocally in compliance with its obligations under the Berne Convention. 136 Cong. Rec. H363, E259 (daily ed. Feb. 7, 1990). The bills followed a June 19, 1989, report of the Register of Copyrights expressing concern that existing U.S. law was not Berne-compatible. See Copyright in Works of Architecture: A Report of the Register of Copyrights (June 1989). No bills were introduced nor hearings held in the Senate.

On March 14, 1990, the House Subcommittee on Courts, Intellectual Property, and the Administration of Justice held a hearing on H.R. 3990 and H.R. 3991. Architectural Design Protection: Hearing on H,R.3990 and H.R. 3991 Before the House Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Comm., 101st Cong., 2d Sess. (1990). Opposition to HR. 3991, which would have extended protection only to architectural works having a “unique artistic character,” was unanimous. While witnesses generally supported H.R. 3990, a number of suggestions for improvement were made. On August 3, 1990, Mr. Kastenmeier introduced a revised version of H. R. 3990 as title 11 of H. R. 5498. On September 14, 1990, the Subcommittee marked up H.R. 5498 and ordered it reported to the Judiciary Committee without amendment. On September 21, the Judiciary Committee reported the bill, again without amendment. H.R. Rep. No. 735, 101st Cong., 2d Sess. (1990). The House passed the bill on September 27, 1990, with an amendment adding visual artists moral rights. 136 Cong. Rec. H8266 (daily ed. Sept. 27, 1990)(remarks of Mr. Kastenmeier). After a series of parliamentary moves, the bill was eventually passed by both Houses on October 27, 1990, as title VII of the Judicial Improvements Act of 1990. 136 Cong. Rec. S17570, 17574, 1113297 (Oct. 27, 1990) (see 37 J. Copyright Soc’y 462, 463-64 (1990) for a history of these parliamentary moves). President Bush signed the bill into law on December 1, 1990.

423 H.R.Rep. No. 735, 101st Cong., 2d Sess. 20 (1990).

424 Id. at 18.

425 Id.

426 17 U.S.C. §120(a)(1990).

427 Id. at (b).

428 17 U.S.C. §301(b)(4)(1990).

429 See Fair Use of Unpublished Works: Joint Hearing on H.R. 4263 and S. 2370 Before the Subcomm.on Courts, Intellectual Property, and the Administration of Justice of the House Judiciary Comm. and the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 101st Cong., 2d Sess. (1990). This initiative did result in legislation during the 102d Congress. See infra text at notes 444-48.

430 Copyright Infringement Remedies and Nursing Home/Videocassette Copyright: Attorneys’ Fees and Hospital VCRs: Hearing on H.R. 671 and H.R. 3158 Before the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Judiciary Comm., 101st Cong., 2d Sess. (1990). The issue was resolved on August 3, 1990, when nine motion picture companies and two nursing home associations entered into a private agreement.

431 Copyright Infringement Remedies and Nursing Home/Videocassette Copyright: Attorneys Fees and Hospital VCRs: Hearing on H.R. 671 and H.R. 3158 Before the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Judiciary Comm., 101st Cong., 2d Sess. (1990).

432 Moral Rights in Our Copyright Laws: Hearings on S. 1198 and S. 1253 Before the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 101st Cong., 1st Sess. (1989); Oversight Hearings on Artists’ Rights in the Context of Motion Pictures: Hearing Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Comm., 101st Cong., 2d Sess. (1990).

433 Moral Rights in Our Copyright Laws: Hearings on S. 1198 and S. 1253 Before the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 101st Cong., 1st Sess. 196-753 (1989).

434 Industrial Design Protection: Hearings on H.R. 902, H.R. 3017, and H.R. 3499 Before the House Subcomm.on Courts, Intellectual Property, and the Administration of Justice of the House Judiciary Comm., 101st Cong., 2d Sess.(1990).

435 Copyright Protection for Intellectual Property to Enhance Technology Transfer: Hearing Before the Subcomm.on Science, Research & Technology of the House Science, Space & Technology Comm., 101st Cong., 2d Sess. (1990); Transfer of Technology From the Federal Laboratories, 101st Cong., 2d Sess. (1990).

436 Hearing on S. 2538 Before the Subcommittee on Communications of the Senate Commerce, Science, and Transportation Comm., 101st Cong., 2d Sess. (1990).

437 Intellectual Property, Domestic Productivity and Trade: Hearing Before the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Judiciary Comm., 101st Cong., 1st Sess. (1989).

438 Computers and Intellectual Property: Hearings Before the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Judiciary Comm., 101st Cong., 1st & 2d Sess. (1989, 1990).

439 Act of June 26, 1992, Pub. L. No. 102-307, 102d Cong., 2d Sess., 106 Stat. 264.

The legislation began with the May 16, 1991, introduction of H.R. 2372 by Mr. Hughes. 137 Cong. Rec. H3160, E1821. The automatic renewal provision was title II of H.R. 2372. In addition to the Copyright Renewal Act of 1992, this bill had two other titles covering fair use of unpublished works (title I) and reauthorization of the National Film Preservation Board (title III). Hearings were held on May 30, June 6, 12, and 20, 1991. Copyright Amendments Act of 1991: Hearings on H.R. 2372 Before the Subcomm. on intellectual Properly and Judicial Administration of the House Judiciary Comm., 102d Cong., 1st Sess. (1991). The fair use title was deleted when the bill was marked up by the House Subcommittee on Intellectual Property and Judicial Administration on October 1, 1991. The automatic renewal title was amended at the markup to contain severe penalties for copyright owners who had not filed an original term registration. On November 16, 1991, the House Judiciary Committee marked up and ordered the bill favorably reported. On November 25, 1991, the Judiciary Committee reported the bill as amended by the Subcommittee. H.R. Rep. No. 379, 102d Cong., 1st Sess. Pt. 1(1991). 5. 756, which contained only automatic renewal, was introduced by Sens. DeConcini and Hatch on March 21, 1991. 137 Cong. Rec. S4041 (daily ed.). A hearing was held on June 12, 1991. Copyright Renewal Provisions: Hearing on S. 756 Before the Senate Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 102 Cong., 1st Sess. (1991). The bill was polled out of the Senate Subcommittee on June 17, 1991, and reported by the Senate Judiciary Committee on August 1, 1991, with amendment to include as title II S.1345, a bill to reauthorize the National Film Preservation Board. S. Rep. No. 194, 102d Cong., 1st Sess. (1991). On November 25, 1991, at the end of the first session of the 102d Congress, both Houses passed different versions of the legislation. 137 Cong. Rec. H11257-61; S18135-40 (Nov. 25, 1991). During the second session, informal conferences led to acceptance of the Senate version of the bill, with minor amendments to ensure that original term registration would never be required. As agreed to, 5. 756, as amended, passed both Houses on June 4, 1992. 138 Cong. Rec. H4134 (daily ed. June 4, 1992). President Bush signed the bill on June 26, 1992.

440 These incentives were: (1) if a renewal application was not filed within the 28th year of the original term, any derivative work prepared during that term under a contract with the copyright owner granting use during the renewal term may continue to be exploited during the renewal term (17 U.S.C. §304(a)(4)(A)(1992)); and (2) the originality of the work was accorded prima facie status if made within that same period (17 U.S.C. §304(a)(4)(B)(1992)).

441 17 U.S.C. §304(a)(2)(B)(i)(1992).

442 17 U.S.C. §304(a)(2)(B)(ii)(1992).

443 17 U.S.C. §108)(i)(1978)(repealed 1992).

444 Act of October 24, 1992, Pub. L. No. 102-492, 102d Cong., 2d Sess., 106 Stat. 3145. The legislation began with bills introduced first by Mr. Kastenmeier and then by Sen. Simon in 1990 during the 101st Congress. 137 Cong. Rec. 3160, E1821. A joint hearing was held on these bills on July 11, 1990, but the legislation died with the end of the 101st Congress, failing to make it out of either body’s subcommittee. See Fair Use of Unpublished Works: Joint Hearing on H.R. 4263 and S. 2370 Before the Subcomm. on Courts, Intellectual Property, and the Administration of Justice of the House Judiciary Comm. and the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 101st Cong., 2d Sess.(1990).

On May 16, 1991, in the 102d Congress, Mr. Hughes and Mr. Moorhead introduced H. R. 2372, a revised version of the previous legislation, title I of which concerned fair use (this legislation had two other titles concerning automatic renewal and reauthorization of the National Film Preservation Board, which were subsequently separately enacted as Pub. L. No. 102-307). Two days of hearings on H.R. 2372 were held on May 30 and June 6, 1991. Copyright Amendments Act of 1991: Hearings on H.R. 2372 Before the Subcomm. on Intellectual Property and Judicial Administration of the House Judiciary Comm., 102d Cong., 1st Sess. (1991). When the bill was marked up by the Subcommittee on October 1, 1991, the fair use title of the bill was deleted due to the parties’ inability to forge the necessary compromise. On the Senate side, Sens. Simon and six co-sponsors introduced S. 1035 on May 9, 1991. 137 Cong. Rec. 55615, 5648-50. Without additional hearings, 5. 1035 was unanimously polled out of the Subcommittee on Patents, Copyrights, and Trademarks on May 17, 1991, and ordered favorably reported by the Judiciary Committee on June 13, 1991, S. Rep. No. 141, 102d Cong., 1st Sess. (1991). 5. 1035 was never taken to the floor, however. Instead, the action shifted back to the House with the March 5, 1992, introduction of H.R. 4412 by Mr. Hughes and five cosponsors. 138 Cong. Rec. Hl100 (daily ed.). On April 30, 1992, the Subcommittee on Intellectual Property and Judicial Administration marked up H.R. 4412 with an amendment in the nature of a substitute. On April 30, 1992, the House Judiciary Committee marked the bill up and favorably reported the bill. H.R. Rep. No. 836, 102d Cong., 2d Sess. (1992). The House passed H.R. 442 on August 11, 1992. 138 Cong. Rec. H79991 (Aug. 11, 1992) (remarks of Mr. Hughes and Mr. Moorhead). The Senate then passed H.R. 4412 on October 7, 1992. 138 Cong. Rec. S 17358 (Oct. 7, 1992) (statement by Sens. Simon, Leahy, Kennedy, Grassley, Metzenbaum, and Kohl). President Bush signed the bill into law on October 24, 1992.

445 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987).

446 873 F.2d 576 (2d Cir.), petition for reh’g en banc denied, 884 F.2d 659 (2d Cir. 1989), cert. denied, 493 U.S. 1094 (1990). See further discussion of these cases and the legislation in Chapter 9, text at notes 188-96.

447 953 F.2d 731 (2d Cir. 1991).

448 Lish v. Harper’s Magazine Found., 807 F. Supp. 1090, 1101 n. 10 (S.D.N.Y. 1992); Copyright L. Rep. ¶27,048 (S.D.N.Y. 1993) (damages); Copyright L. Rep. ¶27,103 (S.D.N.Y. 1993) (costs and attorney’s fees).

449 Act of October 28, 1992, Pub. L. No. 102-561, 102d Cong., 2d Sess., 106 Stat. 4233.

450 See H.R. Rep. No. 997, 102d Cong., 2d Sess.3-4 (1992) for a history of the criminal provisions in our copyright law.

451 S. 893 had been favorably reported by the Senate Judiciary Committee on April 7, 1992. S. Rep. No. 268, 102d Cong., 2d Sess. (1992). No hearings were held in the Senate.

452 See Criminal Sanctions for Violations of Software Copyright: Hearing on S. 893 Before the House Subcomm.on Intellectual Property and Judicial Administration of the House Judiciary Comm., 102d Cong., 2d Sess. (1992).

453 H.R.Rep. No. 997, 102d Cong., 2d Sess. (1992).

454 See 138 Cong. Rec. H11129 (Oct. 3, 1992) (remarks of Mr. Hughes and Mr. Moorhead).

455 See 138 Cong. Rec. S17958 (Oct. 8, 1992) (remarks of Sen. Hatch).

456 H.R. Rep. No. 997, 102d Cong., 2d Sess. 5-6 (1992).

457 Act of October 28, 1992, Pub. L. No. 102-563, 102d Cong., 2d Sess., 106 Stat. 4237. See Chapter 9, text at notes 429-33, for a further discussion of this Act.

The genesis of this legislation may be traced back to 1986 and is recounted in H.R. Rep. No. 873, Pt. 1, 102d Cong., 2d Sess., 9-10 (1992). The Audio Home Recording Act of 1992 started out as S. 1623 and H.R. 3204, companion bills introduced respectively by Sen. DeConcini (and numerous cosponsors) on August 1, 1991, 138 Cong. Rec. S11807, 11841-53 (daily ed.) and by Mr. Hughes and Mr. Brooks on August 2, 1991. The Senate Subcommittee on Patents, Copyrights, and Trademarks held hearings on October 29, 1991. The Audio Home Recording Act of 1991: Hearing on S. 1623 Before the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 102d Cong., 1st Sess. (1991). The Senate Judiciary Committee reported the bill favorably on November 27, 1991, S. Rep. No. 294, 102d Cong., 1st Sess. (1991). The Senate passed the bill on June 17, 1992, with a floor amendment.

138 Cong. Rec. S8409-23 (June 17, 1992). On the House side, hearings were held on February 19, 1992. Audio Home Recording Act of 1991: Hearing on H.R. 3204 Before the Subcomm. on Intellectual Properly and Judicial Administration of the House Judiciary Comm., 1 02d Cong., 2d Sess. (1992). The Subcommittee on Intellectual Property and Judicial Administration marked up H.R. 3204 on July 31, 1992, with an amendment in the nature of a substitute that dramatically slimmed down the legislation. On August 11, 1992, the House Judiciary Committee favorably reported the Subcommittee amendment in the nature of a substitute. H.R. Rep. No. 873, Pt. 1, 102d Cong., 2d Sess, 9-10 (1992). See also H.R. Rep. No. 873, Pt. 2, 102d Cong., 2d Sess, 9-10 (1992) (Ways & Means Committee); H.R. Rep. No. 780, Pt. 2, 102d Cong., 2d Sess. (1992) (Energy & Commerce Committee) (on H.R. 4567, introduced by Mrs. Collins on March 25, 1992, DigitalAudio Recording: Hearings on H.R. 4567 Before the Subcomm. on Commerce, Consumer Protection, and Competitiveness of the House Energy & Commerce Comm., 102d Cong., 2d Sess. (1992)). On September 22, 1992, the House passed H.R. 3204 with an amendment to the amendment in the nature of a substitute. 138 Cong. Rec. H9029 (Sept. 22, 1992) (an identical bill, H.R. 5982 was introduced the same day, but never acted on). Immediately following passage of H.R. 3204, the text of H.R. 3204 as passed was inserted into S. 1623 and sent back to the Senate, which passed the bill on October 7, 1992, without comment. President Bush signed the bill into law on October 28, 1992.

458 See definitions of these terms in 17 U.S.C. §1001 (1992).

459 This term is not defined, and is intended to be “construed as meaning only the functional and technical characteristics as set forth in the Technical Reference Document, as reproduced in report of the Energy & Commerce Committee, H.R. Rep. No. 780, 102d Cong., 2d Sess, pt. 1, 32-50 (1992),” H.R. Rep. No. 873, pt. 1, 102d Cong., 2d Sess,14 (1992).

460 17 U.S.C. §1002(a)(1992).

461 17 U.S.C. §1004(a)(1992).

462 17 U.S.C. §1009 (1992).

463 17 U.S.C. §1006(b)(1)(1990). Before this distribution takes place, 4 percent of the Sound Recordings Fund is taken off the top and divided: 2 5/8 percent to an escrow account managed by an independent administrator jointly appointed by record companies and the American Federation of Musicians (or any successor entity) to be distributed to nonfeatured musicians who perform on sound recordings distributed in the United States, and 1 3/8 percent to an escrow account managed by an independent administrator jointly appointed by the record companies and the American Federation of Television and Radio Artists (or any successor entity) to be distributed to nonfeatured vocalists who have performed on sound recordings distributed in the United States.

464 17 U.S.C. §1006(b)(2)(1990).

465 H.R. 1790, 102d Cong., 1st Sess. (Apr. 16, 1991); Design Innovation and Technology Act of 1991: Hearing on H.R. 1790 Before the Subcomm. on Intellectual Property and Judicial Administration of the House Judiciary Comm., 102d Cong., 2d Sess. (1992).

466 H.R. 4511, 102d Cong., 2d Sess. (Hughes, Mar. 19, 1992); Copyright Broadcast Retransmission Licensing Act of 1992: Hearings on H.R. 4511 Before the House Subcomm.on Intellectual Property and Judicial Administration of the House Judiciary Comm., 102d Cong., 2d Sess. (1992). This bill was marked up and ordered favorably reported by the Subcommittee on Intellectual Property and Judicial Administration on June 18, 1992, but was never acted on by the Judiciary Committee. In the Senate, oversight hearings on repealing the cable compulsory license were held. Cable Copyright Licensing Before the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 102d Cong., 2d Sess. (1992). Subsequently, on October 5, 1992, Sens. DeConcini and Hatch introduced a cable reform bill, S. 3342. 138 Cong. Rec. S16979 (daily ed.).

467 H.R. 4426, 102d Cong., 2d Sess. (Frank, Mar. 11, 1992); Exclusion of Copyright Protection for Certain Legal Compilations: Hearing on H.R. 4426 Before the Subcomm.on Intellectual Property and Judicial Administration of the House Judiciary Comm., 102d Cong., 2d Sess. (1992).

468 Film Disclosure Act of 1991: Hearing on H.R. 3051 Before the Subcomm. on Intellectual Property and Judicial Administration of the House Judiciary Comm., 102d Cong., 2d Sess. (1992); The Film Disclosure Act: Hearing on S. 225 Before the Subcomm.on Patents, Copyrights & Trademarks of the Senate Judiciary Comm., 102d Cong., 2d Sess. (1992)

469 H.R. 3864, 102d Cong., 1st Sess. (Boucher, Nov. 21, 1991); S. 2013, 102d Cong., 1st Sess. (Nov. 21, 1991) (Leahy); The Satellite Home Viewer Act Amendments Act of 1991: Hearing on S. 2013 Before the Subcomm.on Patents, Copyrights & Trademarks of the Senate Judiciary Comm., 102d Cong., 2d Sess. (1992).

470 Motion Picture Anti-Piracy Act of 1991: Joint Hearing Before the Subcomm. on Technology & The Law and the Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 102d Cong., 1st Sess. (1991); H.R. 2367, 102d Cong., 1st Sess. (Berman, May 16, 1991). See also News Monitoring: Hearing on S. 1805 Before the Subcomm. on Patents, Copyrights & Trademarks of the Senate Judiciary Comm., 102d Cong., 2d Sess.(1992) (bill introduced by Senator Hatch on fair use and video clipping services).

471 H.R. 191, 102d Cong., 1st Sess. (Morella, Jan. 3, 1991); H.R. Rep. No. 415, 102d Cong., 1st Sess, pt. 1 (1991) (Science, Space & Technology Committee). S. 1581, 102d Cong., 1st Sess.(Rockefeller, July 29, 1991); S. Rep. No. 254, 102d Cong., 1st Sess. (1991) (Committee on Commerce, Science, and Transportation); S. 1581, Technology Transfer Improvements Act of 1991: Hearing Before the Comm. on Commerce, Science, and Transportation, United States Senate, 102d Cong., 1st Sess. (1991); The Technology Transfer Improvements Act: Hearings on S. 1581 Before the Subcomm. on Patents, Copyrights & Trademarks of the Senate Judiciary Comm., 102d Cong., 2d Sess.(1992).Copyright Protection for Computer Software to Enhance Technology Transfer: Hearing Before the Subcomm.on Technology & Competitiveness of the House Comm. on Science, Space, and Technology, 102d Cong., 1st Sess. (1992); Technology Transfer Improvement Act of 1991: Hearing on H.R. 191 Before the Subcomm. on Intellectual Property and Judicial Administration of the House Judiciary Comm., 102d Cong., 2d Sess. (1992). The provisions of H.R. 191 as introduced were added on the House floor to H.R. 5321, a larger science and competitiveness bill, on September 22, 1992, after misstatements about its contents. See 138 Cong. Rec. H8884-85 (Sept. 22, 1992) (colloquy between Reps. Walker and Valentine). The following day, an amended version of the bill reflecting changes made by the Science, Space & Technology Committee – the bill had not been acted on by the Subcommittee on Intellectual Property and Judicial Administration, to which it was jointly referred – was inserted in lieu of the version passed on September 22, 1992. 138Cong. Rec. H9146-47 (Sept. 23, 1992). H.R. 5321 passed the House same day, but no action was taken in the Senate, and thus the bill died at the end of the 102d Congress.

472 H.R. 2723, 102d Cong., 1st Sess. (Torricelli, June 20, 1991).

473 Copyright and Telecommunications: Hearing Before the Subcommittee on Intellectual Property and Judicial Administration of the House Judiciary Comm., 102d Cong., 1st Sess.(1991).

474 Intellectual Property and International Issues: Hearings Before the Subcomm. on Intellectual Property and Judicial Administration of the House Judiciary Comm., 102d Cong., 1st Sess. (1991); International Piracy of Intellectual Property: Hearing Before the Subcomm. on Patents, Copyrights & Trademarks of the Senate Judiciary Comm., 102d Cong., 2d Sess.(1992).

475 Hearings on Fast Track: Hearings Before the Senate Subcomm. on Patents, Copyrights, and Trademarks of the Senate Judiciary Comm., 102 Cong., 1st Sess. (1991).

476 Act of December 17, 1993, Pub. L. No. 103-198, 103d Cong., 1st Sess., 107 Stat. 2304. This Act began as title II of H.R. 897 (Hughes, Frank) and S. 373 (DeConcini, Hatch), introduced on February 16, 1993. See 139 Cong. Rec. E337 (daily ed. House); 139 Cong. Rec. S1618 (daily ed. Senate). (Title I of the bill concerned, inter alia, reforms in the Copyright Office registration process, see infra text at notes 493-96. Hearings were held in the House on March 3 and 4, 1993. Copyright Reform Act of 1993: Hearings on H.R. 897 Before the Subcomm. on Intellectual Property and Judicial Administration of the House Judiciary Comm., 103d Congress., 1st Sess.(1993). Hearings in the Senate were held on October 5, 1993. Copyright Royalty Tribunal Reform Act of 1993: Hearing on S. 1346 Before the Senate Subcomm.on Patents, Copyrights & Trademarks of the Senate Judiciary Comm., 103d Cong., 1st Sess. (1993). On August 3, 1993, the CRT portions of the bill (title II) were reintroduced as H.R. 2840 (Hughes, Frank) and S.1346 (DeConcini, Hatch), 139 Cong. Rec. E1961 (daily ed. House); 139Cong. Rec. S10232, S10237-39 (daily ed. Senate). (The only significant differences between H.R. 897/S.373 and H.R. 2840/S. 1346 were in form: H.R. 897/S. 373 revised chapter 8 of title 17 in a manner designed to make that chapter read more clearly. H.R. 2840/S. 1346 took a “cut and bite” approach: i.e., existing chapter 8 of title 17 was left in place and amended only as necessary.) On August 5, 1993, H.R. 2840 was marked up by the House Subcommittee on Intellectual Property and Judicial Administration with a single amendment in the nature of a substitute. This amendment made the following changes to H.R. 2840 as introduced: (1) Instead of having the Register of Copyrights directly responsible for copyright arbitration panels, the Register of Copyrights is to make recommendations to the Librarian of Congress; (2) The Librarian of Congress is given the authority to make any necessary procedural or evidentiary rulings that would be applied by a copyright arbitration royalty panel; (3) Copyright arbitration royalty panels are directed to look at precedent. On October 6, 1993, the full Judiciary Committee marked up H.R. 2840 as amended by the Subcommittee, and approved it with two amendments offered en bloc by Mr. Hughes and reported the bill as amended. H.R. Rep. No. 286, 103d Cong., 2d Sess. (1993). (The first amendment offered by Mr. Hughes at the full Committee transferred to the Copyright Office any unexpended funds retained by the CRT at the time of its abolition. The second ensured that the Library of Congress and the Copyright Office will be able to deduct 100 percent of their costs in fulfilling their duties under the Act and will be able to fill positions required for those duties.) H.R. 2840 was passed by the House on October 12, 1993. See 139 Cong. Rec. H7698 (daily ed.). The bill was then held at the desk in the Senate. At this point, the House and Senate informally worked together to make an number of additional improvements to the bill. On November 20, 1993, after agreement had been reached, the Senate took up H.R. 2840 as passed by the House, but struck everything after the enacting clause and inserted in lieu the informally agreed on bill. See 139 Cong. Rec. S16835 (daily ed.). The amended bill was virtually identical to H.R. 2840 as passed by the House on October 12, with the exception of a number of changes designed to improve the arbitration process. See 139 Cong. Rec. H10973 (daily ed. House Nov. 22, 1993) (explanation of Mr. Hughes), notes 217, 218, 220 in Chapter 16. (Additionally, he House version repealed §803 but did not renumber §804 as §803; the Senate amendment repealed §803 and renumbered §804 as §803. Both versions repealed §§805-810.)

The House passed the Senate version on November 22, 1993, see 139 Cong. Rec. H10969 (daily ed.). President Clinton signed H.R. 2840 into law on December 17, 1993.

477 See Copyright Office, the U.S. Patent & Trademark Office, and the Copyright Royalty Tribunal: Oversight Hearings Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Comm., 97th Cong., 1st Sess. 67-74 (1981) (testimony of Chairman James).

478 See H.R. 2752, 99th Cong., 1st Sess. (1985) (Mr. Synar); H.R. 2784, 99th Cong., 1st Sess. (1985) (Mr. Kastenmeier).

479 See Copyright Reform Act of 1993: Hearings on H.R. 897 Before the House Subcomm. on Intellectual Property and Judicial Administration of the House Judiciary Comm., 103d Cong., 1st Sess. 101-05 (1993).

480 See H.R. Rep. No. 286, 103d Cong., 1st Sess. 9 (1993).

481 The Tribunal originally was composed of five commissioners. This number was reduced to three in 1990. See supra note 402.

482 See H.R. Rep. No. 286, 103d Cong., 1st Sess. 9-11 (1993). For example, one set of data supplied by the CRT reveal a total of 390 days of hearings for the entire 15-year period of 1978-1993, for an average of 26 days per year. In two years, 1979 and 1993, there were no hearings.

483 S. 543 §§801, 803, 91st Cong., 1st Sess. (1969).

484 424 U.S. 1 (1976).

485 See 17 U.S.C. §801(a)(1993). The Librarian makes his or her selection on the recommendation of the Register of Congress. Id.

486 For more detailed discussion on the legislation, see Chapter 16, text at notes 209-29.

487 Act of December 8, 1993, Pub. L. No. 103-182, 103d Cong., 1st Sess., 107 Stat. 2057 (NAFTA implementing legislation).

488 NAFTA implementing legislation, §332 (striking §4 of the Record Rental Amendment of 1984). The effective data of the repeal was January 1, 1994. See NAFTA implementing legislation §§335(a), 101(b).

489 Although a similar repeal of the 1997 sunset on the rental of computer software is in the NAFTA treaty and was in early drafts on the NAFTA implementing legislation, it was deleted from the legislation as introduced after the House and the Senate disagreed on the disposition of the “Nintendo” exception in 17 U.S.C. §109(b)(1)(B)(ii) (1990). The Senate wished to repeal the exception, thereby prohibiting the rental of electronic audiovisual games. The House wished to leave the exception in place. The disagreement was resolved by deleting any reference to the rental of software, thereby requiring Congress to examine the issue before the 1997 sunset.

490 Act of December 8, 1993, Pub. L. No. 103-182, §334 (creating new 17 U.S.C. §104A), 103d Cong., 1st Sess., 107 Stat. 2057. The duration granted is for the remainder of what the term would have been had the work been published with a proper notice. 17 U.S.C. §104A(a) (1994).

491 17 U.S.C. §104A(b) (1994).

492 The exact date in January 1996 is unknown at this time. The statute requires the Copyright Office to publish “promptly” in the Federal Register a list of motion pictures and works included in motion pictures. 17 U.S.C. §104A(b) (1990). Since persons wishing to have their copyright restored have until December 31, 1994, to file their statement of intent with the Copyright Office, it will take the Copyright Office a few days to collate this information and publish it in the Federal Register. Presumably this will occur at the end of the first week of January 1995. A one-year sell-off, distribution, or public performance period is then triggered. 17 U.S.C. §104A(c) (1994).

493 This proposal began with H.R. 897 (Hughes, Frank) and S. 373 (DeConcini, Hatch), introduced on February 16, 1993.See 139 Cong. Rec. E337 (daily ed. House), 139 Cong. Rec. S1618 (daily ed. Senate). (Title II of the bill, which concerned abolition of the Copyright Royalty Tribunal, was split off on August 3, 1993. See supra note 476. Hearings were held in the House on March 3 and 4, 1993. Copyright Reform Act of 1993: Hearings on H.R. 897 Before the Subcomm.on Intellectual Property and Judicial Administration of the House Judiciary Comm., 103d Congress., 1st Sess. (1993). Hearings in the Senate were held on October 19, 1993. Copyright Reform Act of 1993: Hearing on S. 373 Before the Senate Subcomm.on Patents, Copyrights & Trademarks of the Senate Judiciary Comm., 103d Cong., 1st Sess.(1993). On November 4, 1993, the House Subcommittee on Intellectual Property and Judicial Administration marked up H.R. 897 with an amendment in the nature of a substitute.

On November 17, 1993, the full Judiciary Committee marked up H.R. 897 and by voice vote favorably reported the bill as amended to the House. See H.R. Rep. No. 338, 103d Cong., 1st Sess. (1993). On November 20, 1993, the House passed the bill by suspension. See 139 Cong. Rec. H10308 (daily ed.).

494 See more detailed discussion of this Act in Chapter 16, text at notes 133-53.

495 H.R. Rep. No. 388, 103d Cong., 1st Sess. 9 (1993).

496 Id. at 11.

497 This Act began as H.R. 1103 in the House (Mr. Hughes and Mr. Moorhead), introduced on February 24, 1993. See 138 Cong. Rec. E452 (daily ed.). See also H.R. 759, introduced on February 3, 1993 by Mr. Boucher and Mr. Moorhead to clarify the status of wireless cable under Section 111 and S. 1485 (DeConcini, Sept.22, 1993), 139 Cong. Rec. S. 12245 (daily ed.) was polled out by the Senate Subcommittee on Patents, Copyrights and Trademarks on March 24, 1994, and marked up and reported by the Senate Judiciary Committee on May 5, 1994. The Senate passed the bill on May 18, 1994. 140 Cong. Rec. 55935. A hearing on H.R. 1103 and H.R. 759 was held on March 17, 1993. See Cable and Satellite Carrier Compulsory Licenses: Hearing on H.R. 1103 and H.R. 759 Before the Subcomm.on Intellectual Property and Judicial Administration of the House Judiciary Comm., 103d Cong., 1st Sess. (1993). On August 5, 1993, the Subcommittee marked up and favorably reported to the Judiciary Committee an amendment in the nature of a substitute along with an amendment offered by Representatives Fish and Synar extending the length of the license from December 31, 1998, to December 31, 1999. The amendment in the nature of a substitute made significant changes in the unserved household provision and in the factors to be considered by arbitrators in setting a mid-term rate. See Chapter 12. The full House Judiciary Committee marked up and ordered the bill favorably reported on June 29, 1994.

498 Oversight Hearing on the Possible Protocol to the Berne Convention Before the House Subcomm. on Intellectual Property and Judicial Administration, 103d Cong., 1st Sess. (1993).

499 Oversight Hearing on Music Licensing Practices of the Performing Rights Societies: Hearing Before the Subcomm. on Intellectual Property and Judicial Administration of the House Judiciary Comm., 103d Cong., 2d Sess. (1994)

500See H.R. 2576, 103d Cong., 1st Sess., 139 Cong. Rec. E1724 (daily ed. July 1, 1993) (Mr. Hughes and Mr. Berman). A similar bill was introduced by Senators Hatch and Feinstein on Aug. 6, 1993, 139 Cong. Rec. S 10897 (daily ed.). This legislation evolved out of an oversight hearing held by the House. See Performers’ and Performance Rights in Sound Recordings: Hearing Before the Subcomm. on Intellectual Property and Judicial Administration of the House Judiciary Comm., 103d Cong., 1st Sess. (1993).