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Coalition for Networked Information  
Information Policies:  A Compilation of Position Statements, Principles, 
Statutes, and Other Pertinent Statements 
 
 
 
U.S. Laws, Statutes 
 
Berne Convention Implementation Act of 1988 
 
Source:  Berne Convention Implementation Act of 1988, 17 USC 101  
note. United States Code Congressional and Administrative News,  
100th Congress--Second Session, Volume 2, West Publishing Co., St.  
Paul, Minn., 102 Stat. 2853-2861.  
 
(An Act to amend title 17, United States Code, to implement the Berne  
Convention for the Protection of Literary and Artistic Works, as revised 
at Paris on July 24, 1971, and for other purposes.) 
 
Be it enacted by the Senate and House of Representatives of the United  
States of America in Congress assembled. 
 
 
 
Section 1.  Short Title and References to Title 17, United States Code. 
 
(a)  Short Title.--This Act, may be cited as the "Berne Convention  
Implementation Act of 1988". 
 
(b)  References to Title 17, United States Code.--Whenever in this Act  
an amendment or repeal is expressed in terms of an amendment to or a repeal 
of a section or other provision, the reference shall be considered to be 
made to a section or other provision of title 17, United States Code. 
 
 
 
Section 2.  Declarations. 
 
The Congress makes the following declarations: 
 
(1) The Convention for the Protection of Literary and Artistic  
Works, signed at Berne, Switzerland, on September 9, 1886, and all  
acts, protocols, and revisions thereto (hereafter in this Act referred to as  
the "Berne Convention") are not self-executing under the Constitution  
and laws of the United States. 
 
(2) The obligations of the United States under the Berne  
Convention may be performed only pursuant to appropriate domestic  
law. 
 
(3) The amendments made by this Act, together with the law  
as it exists on the date of the enactment of this Act, satisfy the  
obligations of the United States in adhering to the Berne Convention  
and no further rights or interests shall be recognized or created for that  
purpose. 
 
 
 
Section 3.  Construction of the Berne Convention. 
 
(a)  Relationship with Domestic Law.--The provisions of the Berne  
Convention-- 
 
(1)  shall be given effect under title 17, as amended by this  
Act, and any other relevant provision of Federal or State law, including  
the common law; and 
 
(2)  shall not be enforceable in any action brought pursuant to  
the provisions of the Berne Convention itself. 
 
(b) Certain Rights Not Affected.--The provisions of the Berne  
Convention, the adherence of the United States thereto, and satisfaction of United  
States obligations thereunder, do no expand or reduce any right of an author of a  
work, whether claimed under Federal, State, or the common law-- 
 
(1)  to claim authorship of the work; or 
 
(2)  to object to any distortion, mutilation, or other  
modification of, or other derogatory action in relation to, the work, that  
would prejudice the author's honor or reputation. 
 
 
 
Section 4.  Subject Matter and Scope of Copyrights. 
 
(a)  Subject and Scope.--Chapter 1 is amended-- 
 
(1)  in section 101-- 
 
(A) in the definition of "Pictorial, graphic, and  
sculptural works" by striking out in the first sentence  
"technical drawings, diagrams, and models" and inserting in  
lieu thereof "diagrams, models, and technical drawings,  
including architectural plans"; 
 
(B) by inserting after the definition of "Audiovisual  
works", the following:  "The 'Berne Convention' is the  
Convention for the Protection of Literary and Artistic Works,  
signed at Berne, Switzerland, on September 8, 1886, and all  
acts, protocols, and revisions thereto. 
 
"A work is a 'Berne Convention work' if-- 
 
"(1) in the case of an unpublished work, one  
or more of the authors is a national of a nation  
adhering to the Berne Convention, or in the case of a  
published work, one or more of the authors is a  
national of a nation adhering to the Berne Convention  
on the date of first publication; 
 
"(2) the work was first published in a nation  
adhering to the Berne Convention, or was  
simultaneously first published in a nation adhering to  
the Berne Convention and in a foreign nation that  
does not adhere to the Berne Convention; 
 
"(3)  in the case of an audiovisual work-- 
 
"(A) if one or more of the authors  
is a legal entity, that the author has its  
headquarters in a nation adhering to the  
Berne Convention; or 
 
"(B) if one or more of the authors is  
an individual, that author is domiciled, or  
has his or her habitual residence in, a  
nation adhering to the Berne Convention;  
or 
 
"(4)  in the case of a pictorial, graphic, or  
sculptural work that is incorporated in a building or  
other structure, the building or structure is located in  
a nation adhering to the Berne Convention. 
 
For purposes of paragraph (1), an author who is  
domiciled in or has his or her habitual residence in, a nation  
adhering to the Berne Convention is considered to be a national  
of that nation.  For purposes of paragraph (2), a work is  
considered to have been simultaneously published in two or  
more nations if its dates of publication are within 30 days of  
one another,"; and 
 
(C)  by inserting after the definition of "Copyright  
owner", the following: 
 
"The 'country of origin' of a Berne Convention work, for  
purposes of section 411, is the United States if-- 
 
"(1)  in the case of a published work, the work  
is first published-- 
 
"(A)  in the United States; 
 
"(B)  simultaneously in the United States  
and another nation or nations adhering to the Berne  
Convention, whose law grants a term of copyright  
protection that is the same as or longer than the term  
provided in the United States; 
 
"(C) simultaneously in the United States  
and a foreign nation that does not adhere to the Berne  
Convention; or 
 
"(D) in a foreign nation that does not  
adhere to the Berne Convention, and all of the authors  
of the work are nationals, domiciliaries, or habitual  
residents of, or in the case of an audiovisual work  
legal entities with headquarters in, the United States; 
 
"(2) in the case of an unpublished work, all the  
authors of the work are nationals, domiciliaries, or  
habitual residents of the United States, or, in the case of an  
unpublished  audiovisual work, all the authors are legal  
entities with headquarters in the United States;  or 
 
"(3) in the case of a pictorial, graphic, or  
sculptural work incorporated in a building  or  structure, the  
building or structure is located in the United States. 
For the purposes of section 411, the 'country of origin' of any other  
Berne Convention work is not the United States."; 
 
(2)  in section 104(b)-- 
 
(A) by redesignating paragraph (4) as paragraph (5); and 
 
(B) by inserting after paragraph (3) the following new  
paragraph: "(4) the work is a Berne Convention work; or"; 
(3)  in section 104 by adding at the end thereof the following: 
 
"(c) Effect of Berne Convention.--No right or interest in a  
work eligible for protection under this title may be claimed by virtue  
or, or in reliance upon; the provisions of the Berne Convention, or the  
adherence of the United States thereto.  Any rights in a work eligible  
for protection under this title that derive from this title, other Federal or  
State statutes, or the common law, shall not be expanded or reduced by  
virtue of, or in reliance upon, the provisions of the Berne Convention,  
or the adherence of the United States thereto."; and 
 
(4)  by inserting after section 116 the following new section: 
"Section 116A.  Negotiated licenses for public performances by means of coin- 
operated phonorecord players 
 
"(a) Applicability of Section.--This section applies to any nondramatic  
musical work embodied in a phonorecord. 
 
"(b) Limitation on Exclusive Right if Licenses Not Negotiated.-- 
 
"(1) Applicability.--In the case of a work to which this section  
applies, the exclusive right under clause (4) of section 106 to perform  
the work publicly by means of a coin-operated phonorecord player is  
limited by section 116 to the extent provided in this section. 
 
"(2) Determination by Copyright Royalty Tribunal.--The  
Copyright Royalty Tribunal, at the end of the 1-year period beginning  
on the effective date of the Berne Convention Implementation Act of  
1988, and periodically thereafter to the extent necessary to carry out  
subsection (f), shall determine whether or not negotiated licenses  
authorized by subsection (c) are in effect so as to provide permission to  
use a quantity of musical works not substantially smaller than the  
quantity of such works performed on coin-operated phonorecord players  
during the 1-year period ending on the effective date of that Act.  If the  
Copyright Royalty Tribunal determines that such negotiated licenses are  
not so in effect, the Tribunal shall, upon making the determination,  
publish the determination in the Federal Register.  Upon such  
publication, section 116 shall apply with respect to musical works that  
are not the subject of such negotiated licenses. 
 
"(c) Negotiated Licenses.-- 
 
"(1) Authority for Negotiations.--Any owners of copyright in  
works to which this section applies and any operators of coin-operated  
phonorecord players may negotiate and agree upon the terms and rates of  
royalty payments for the performance of such works and the  
proportionate division of fees paid among copyright owners, and may  
designate common agents to negotiate, agree to, pay, or receive such  
royalty payments. 
 
"(2) Arbitration.--Parties to such a negotiation, within such  
time as may be specified by the Copyright Royalty Tribunal by  
regulation, may determine the result of the negotiation by arbitration.   
Such arbitration shall be governed by the provisions of title 9, to the  
extent such title is not inconsistent with this section.  The parties shall  
give notice to the Copyright Royalty Tribunal of any determination  
reached by arbitration and any such determination shall, as between the  
parties to the arbitration, be dispositive of the issues to which it relates. 
 
"(d) License Agreements Superior to Copyright Royalty  
Tribunal Determinations.--License agreements between one or more  
copyright owners and one or more operators of coin-operated  
phonorecord players, which are negotiated in accordance with subsection  
(c), shall be given effect in lieu of any otherwise applicable  
determination by the Copyright Royalty Tribunal. 
 
"(e) Negotiation Schedule.--Not later than 60 days after the  
effective date of the Berne Convention Implementation Act of 1988, if  
the Chairman of the copyright Royalty Tribunal has not received  
notice, from copyright owners and operators of coin-operated  
phonorecord players referred to in subsection (c)(1), of the date and  
location of the first meeting between such copyright owners and such  
operators to commence negotiations authorized by subsection (c), the  
Chairman shall announce the date and location of such meeting.  Such  
meeting may not be held more than 90 days after the effective date of  
such Act. 
 
"(f) Copyright Royalty Tribunal To Suspend Various  
Activities.--The Copyright Royalty Tribunal shall not conduct any rate- 
making activity with respect to coin-operated phonorecord players  
unless, at any time more than one year after the effective date of the  
Berne Convention Implementation Act of 1988, the negotiated licenses  
adopted by the parties under this section do not provide permission to  
use a quantity of such works performed on coin-operated phonorecord  
players during the one-year period ending on the effective date of such  
Act. 
 
"(g) Transition Provisions; Retention of Copyright Royalty  
Tribunal Jurisdiction.--Until such time as licensing provisions are  
determined by the parties under this section, the terms of the  
compulsory license under section 116, with respect to the public  
performance of nondramatic musical works by means of coin-operated  
phonorecord players, which is in effect on the day before the effective  
date of the Berne Convention Implementation Act of 1988, shall remain  
in force.  If a negotiated license authorized by this section comes into  
force so as to supersede previous determinations of the Copyright  
Royalty Tribunal, as provided in subsection (d), but thereafter is  
terminated or expires and is not replaced by another licensing  
agreement, then section 116 shall be effective with respect to musical  
works that were the subject of such terminated or expired licenses.". 
 
(b) Technical Amendments.--(1) Section 116 is amended-- 
 
(A) by amending the section heading to read as follows: 
 
"Section 116.  Scope of exclusive rights in nondramatic musical works:  
Compulsory licenses for public performance by means of coin-operated  
phonorecord players"; 
 
(B) in subsection (a) in the matter preceding paragraph  
(1), by inserting after "in a phonorecord," the following:  "the  
performance of which is subject to this section as provided in  
section 116A,"; and 
 
(C) in subsection (e), by inserting "and section 116A"  
after "As used in this section". 
 
(2) The table of sections at the beginning of chapter 1 is amended by  
striking out the item relating to section 116, and inserting in lieu thereof the  
following: 
 
"116. Scope of exclusive rights in nondramatic musical works:  Compulsory  
licenses for public performances by means of coin-operated phonorecord  
players." 
 
"116A.  Negotiated licenses for public performances by means of coin-operated  
phonorecord players.". 
 
 
 
Section 5.  Recordation. 
 
Section 205 is amended-- 
 
(1) by striking out subsection (d); and 
 
(2) by redesignating subsections (e) and (f) as subsections (d)  
and (e), respectively. 
 
 
 
Section 6.  Preemption with Respect to Other Laws Not Affected. 
 
Section 301 is amended by adding at the end thereof the following:   
 
"(e) The scope of Federal preemption under this section is not affected  
by the adherence of the United States to the Berne Convention or the satisfaction  
of obligations of the United States thereunder.". 
 
 
 
Section 7.  Notice of Copyright. 
 
(a) Visually Perceptible Copies.--Section 401 is amended-- 
 
(1) in subsection (a), by amending the subsection heading to  
read as follows: 
 
"(a) General Provisions.--"; 
 
(2) in subsection (a), by striking out "shall be placed on all"  
and inserting in lieu thereof "may be placed on"; 
 
(3) in subsection (b), by striking out "The notice appearing on  
the copies: and inserting in lieu thereof "If a notice appears on the  
copies, it"; and 
 
(4) by adding at the end of the following: 
 
"(d) Evidentiary Weight of Notice.--If a notice of copyright in the form  
and position specified by this section appears on the published copy or copies to  
which a defendant in a copyright infringement suit had access, then no weight  
shall be given to such a defendant's interposition of a defense based on innocent  
infringement in mitigation of actual or statutory damages, except as provided in  
the last sentence of section 504(c)(2).". 
 
(b) Phonorecords of Sound Recordings.--Section 402 is amended-- 
 
(1) in subsection (a), by amending the subsection heading to  
read as follows: 
 
"(a) General Provisions.--"; 
 
(2) in subsection (a), by striking out "shall be placed on all"  
and inserting in lieu thereof "may be placed on"; 
 
(3) in subsection (b), by striking out "The notice appearing on  
the phonorecords" and inserting in lieu thereof "If a notice appears on  
the phonorecords, it"; and 
 
(4) by adding at the end thereof the following new subsection: 
 
"(d) Evidentiary Weight of Notice.--If a notice of copyright in the form  
and position specified by this section appears on the published phonorecord or  
phonorecords to which a defendant in a copyright infringement suit had access,  
then no weight shall be given to such a defendant's interposition of a defense  
based on innocent infringement in mitigation of actual or statutory damages,  
except as provided in the last sentence of section 504(c)(2).". 
 
(c) Publications Incorporating United States Government Works.-- 
Section 403 is amended to read as follows: 
 
"Sections 401(d) and 402(d) shall not apply to a work published in  
copies or phonorecords consisting predominantly of one or more works of the  
United States Government unless the notice of copyright appearing on the  
published copies or phonorecords to which a defendant in the copyright  
infringement suit had access includes a statement identifying, either affirmatively  
or negatively, those portions of the copies or phonorecords embodying any work  
or works protected under this title.". 
 
(d) Notice of Copyright; Contribution to Collective Works.--Section  
404 is amended-- 
 
(1) in subsection (a), by striking out "to satisfy the  
requirements of sections 401 through 403", and inserting in lieu thereof  
"to invoke the provisions of section 401(d) or 402(d), as applicable";  
and 
 
(2) in subsection (b), by striking out "Where" and inserting in  
lieu thereof "With respect to copies and phonorecords publicly  
distributed by authority of the copyright owner before the effective date  
of the Berne Convention Implementation Act of 1988, where". 
 
(e) Omission of Notice.--Section 405 is amended-- 
 
(1) in subsection (a), by striking out "The omission of the  
copyright notice prescribed by" and inserting in lieu thereof "With  
respect to copies and phonorecords publicly distributed by authority of  
the copyright owner before the effective date of the Berne Convention  
Implementation Act of 1988, the omission of the copyright notice  
described in"; 
 
(2) in subsection (b), by striking out "omitted," in the first  
sentence and inserting in lieu thereof "omitted and which was publicly  
distributed by authority of the copyright owner before the effective date  
of the Berne Convention Implementation Act of 1988,"; and 
 
(3) by amending the section heading to read as follows: 
"Section 405.  Notice of copyright:  Omission of notice on certain copies and  
phonorecords" 
 
(f) Error in Name or Date.--Section 406 is amended-- 
 
(1) in subsection (a) by striking out "Where" and inserting in  
lieu thereof "With respect to copies and phonorecords publicly  
distributed by authority of the copyright owner before the effective date  
of the Berne Convention Implementation Act of 1988, where"; 
 
(2) in subsection (b) by inserting "before the effective date of  
the Berne Convention Implementation Act of 1988" after "distributed"; 
 
(3) in subsection (c)-- 
 
(A) by inserting "before the effective date of the Berne  
Convention Implementation Act of 1988" after "publicly  
distributed"; and 
 
(B) by inserting after "405" the following:  "as in  
effect on the day before the effective date of the Berne  
Convention Implementation Act of 1988"; and 
 
(4) by amending the section heading to read as follows: 
"Section 406.  Notice of copyright:  Error in name or date on certain copies and  
phonorecords". 
 
(g) Clerical Amendment.--The table of sections at the beginning of  
chapter 4 is amended by striking out the items relating to sections 405 and 406  
and inserting in lieu thereof the following: 
 
"405.  Notice of copyright:  Omission of notice on certain copies and  
phonorecords. 
 
"406.  Notice of copyright:  Error in name or date on certain copies and  
phonorecords.". 
 
 
 
Section 8.  Deposit of Copies or Phonorecords for Library of Congress. 
 
Section 407(a) is amended by striking out "with notice of copyright". 
 
 
 
Section 9.   Copyright Registration. 
 
(a)  Registration in General.--Section 408 is amended-- 
 
(1)  in subsection (a), by striking out "Subject to the  
provisions of section 405(a), such" in the second sentence and inserting  
in lieu thereof "Such"; 
 
(2)  in subsection (c)(2)-- 
 
(A) by striking out "all of the following conditions--"  
and inserting in lieu thereof "the following conditions:"; 
 
(B) by striking out subparagraph (A); and 
 
(C) by redesignating subparagraphs (B) and (C) as  
subparagraphs (A) and (B), respectively. 
 
(b)  Infringement Actions.-- 
 
(1)  Registration as a Prerequisite.--Section 411 is amended-- 
 
(A) by amending the section heading to read as follows: 
 
"Section 411.  Registration and infringement actions"; 
 
(B) in subsection (a) by striking out "Subject" and  
inserting in lieu thereof "Except for actions for infringement of  
copyright in Berne Convention works whose country of origin  
in not the United States, and subject"; and 
 
(C) in subsection (b)(2) by inserting ", if required by  
subsection (a)," after "work". 
 
(2)  Table of Sections.--The table of sections at the beginning  
of chapter 4 is amended by striking out the item relating to section 411  
and inserting in lieu thereof the following: 
 
"411.  Registration and infringement actions.". 
 
 
 
Section 10.  Copyright Infringement and Remedies. 
 
(a)  Infringement.--Section 501(b) is amended by striking out "sections  
205(d) and 411," and inserting in lieu thereof "section 411,". 
 
(b)  Damages and Profits.--Section 504(c) is amended-- 
 
(1)  in paragraph (1))-- 
 
(A) by striking out "$250", and inserting in lieu  
thereof "$500"; and 
 
(B) by striking out "$10,000", and inserting in lieu  
thereof "$20,000"; and 
 
(2) in paragraph (2)-- 
 
(A) by striking out "$50,000.", and inserting in lieu  
thereof "$100,000."; and 
 
(B) by striking out "$100.", and inserting in lieu  
thereof "$200.". 
 
 
 
Section 11.  Copyright Royalty Tribunal. 
 
Chapter 8 is amended-- 
 
(1)  in section 801, by adding at the end of subsection (b) the  
following:  "In determining whether a return to a copyright owner under  
section 116 is fair, appropriate weight shall be given to-- 
 
"(i) the rates previously determined by the Tribunal to provide  
a fair return to the copyright owner, and  
 
"(ii) the rates contained in any license negotiated pursuant to  
section 116A of this title."; and 
 
(2)  by amending section 804(a)(2)(C) to read as follows: 
 
"(C) 
(i) In proceedings under section 801(b)(1)  
concerning the adjustment of royalty rates as provided in  
section 115, such petition may be filed in 1990 and in each  
subsequent tenth calendar year, and at any time within 1 year  
after negotiated licenses authorized by section 116A are  
terminated or expire and are not replaced by subsequent  
agreements. 
 
"(ii) If negotiated licenses authorized by section  
116A come into force so as to supersede previous  
determinations of the Tribunal, as provided in section 116A(d),  
but thereafter are terminated or expire and are not replaced by  
subsequent agreements, the Tribunal shall, upon petition of  
any party to such terminated or expired negotiated license  
agreement, promptly establish an interim royalty rate or rates  
for the public performance by means of a coin-operated  
phonorecord player of nondramatic musical works embodied in  
phonorecords which had been subject to the terminated or  
expired negotiated license agreement.  Such interim royalty  
rate or rates shall be the same as the last such rate or rates and  
shall remain in force until the conclusion of proceedings to  
adjust the royalty rates applicable to such works, or until  
superseded by a new negotiated license agreement, as provided  
in section 116A(d).". 
 
 
 
Section 12.  Works in the Public Domain. 
 
Title 17, United States Code, as amended by this Act, does not provide  
copyright protection for any work that is in the public domain in the United  
States. 
 
 
 
Section 13.  Effective Date on Pending Cases. 
 
(a)  Effective Date.--This Act and the amendments made by this Act  
take effect on the date on which the Berne Convention (as defined in section 101  
of title 17, United States Code) enters into force with respect to the United  
States. 
 
(b)  Effect on Pending Cases.--Any cause of action arising under title  
17, United States Code, before the effective date of this Act shall be governed by  
the provisions of such titles as in effect when the cause of action arose. 
 
Approved October 31, 1988. 
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