Copyright Law of the United States of America

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Sec. 12. Works in the public domain.

Title 17, United States Code, as amended by this Act, does not provide
copyright protection for any work that is in the public domain in the
United States.

Sec. 13. Effective date: effect on pending cases.

(a) Effective Date. This Act and the amendments made by this Act take
effect on the date on which the Berne Convention (as defined in section
101 of title 17, United States Code) enters into force with respect to
the United States. [2]

(b) Effect on Pending Cases. Any cause of action arising under title 17,
United States Code, before the effective date of this Act shall be
governed by the provisions of such title as in effect when the cause of
action arose.

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Appendix II Endnotes

1 Part II of the Appendix consists of provisions of the Berne
Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat.
2853, that do not amend title 17 of the *United States Code.*

2 The Berne Convention entered into force in the United States on March
1, 1989.

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Appendix III. Uruguay Round Agreements Act [1]

Sec. 2. Definitions.

For purposes of this Act:

(1) GATT 1947; GATT 1994.

(A) GATT 1947. The term "GATT 1947" means the General Agreement on
Tariffs and Trade, dated October 30, 1947, annexed to the Final Act
Adopted at the Conclusion of the Second Session of the Preparatory
Committee of the United Nations Conference on Trade and Employment, as
subsequently rectified, amended, or modified by the terms of legal
instruments which have entered into force before the date of entry into
force of the WTO Agreement.

(B) GATT 1994. The term "GATT 1994" means the General Agreement on
Tariffs and Trade annexed to the WTO Agreement.

(2) HTS. The term "HTS" means the Harmonized Tariff Schedule of the
United States.

(3)International trade commission. The term "International Trade
Commission" means the United States International Trade Commission.

(4) Multilateral trade agreement. The term "multilateral trade
agreement" means an agreement described in section 101(d) of this Act
(other than an agreement described in paragraph (17) or (18) of such
section).

(5) Schedule XX. The term "Schedule XX" means Schedule XX - United States
of America annexed to the Marrakesh Protocol to the GATT 1994.

(6) Trade representative. The term "Trade Representative" means the
United States Trade Representative.

(7) Uruguay round agreements. The term "Uruguay Round Agreements" means
the agreements approved by the Congress under section 101(a)(1).

(8) World trade organization and WTO. The terms "World Trade
Organization" and "WTO" mean the organization established pursuant to
the WTO Agreement.

(9) WTO agreement. The term "WTO Agreement" means the Agreement
Establishing the World Trade Organization entered into on April 15,
1994.

(10) WTO member and WTO member country. The terms "WTO member" and "WTO
member country" mean a state, or separate customs territory (within the
meaning of Article XII of the WTO Agreement), with respect to which the
United States applies the WTO Agreement.

Sec. 101. Approval and entry into force of the Uruguay Round Agreements.

(a) Approval of Agreements and Statement of Administrative Action.
Pursuant to section 1103 of the Omnibus Trade and Competitiveness Act of
1988 (19 U.S.C. 2903) and section 151 of the Trade Act of 1974 (19
U.S.C. 2191), the Congress approves-

(1) the trade agreements described in subsection (d) resulting from the
Uruguay Round of multilateral trade negotiations under the auspices of
the General Agreement on Tariffs and Trade, entered into on April 15,
1994, and submitted to the Congress on September 27, 1994; and

(2) the statement of administrative action proposed to implement the
agreements that was submitted to the Congress on September 27, 1994.

(b) Entry Into Force. At such time as the President determines that a
sufficient number of foreign countries are accepting the obligations of
the Uruguay Round Agreements, in accordance with article XIV of the WTO
Agreement, to ensure the effective operation of, and adequate benefits
for the United States under, those Agreements, the President may accept
the Uruguay Round Agreements and implement article VIII of the WTO
Agreement.

(c) Authorization of Appropriations. There are authorized to be
appropriated annually such sums as may be necessary for the payment by
the United States of its share of the expenses of the WTO.

(d) Trade Agreements to Which This Act Applies. Subsection (a) applies
to the WTO Agreement and to the following agreements annexed to that
Agreement:

(1) The General Agreement on Tariffs and Trade 1994.

(2) The Agreement on Agriculture.

(3) The Agreement on the Application of Sanitary and Phytosanitary
Measures.

(4) The Agreement on Textiles and Clothing.

(5) The Agreement on Technical Barriers to Trade.

(6) The Agreement on Trade-Related Investment Measures.

(7) The Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994.

(8) The Agreement on Implementation of Article VII of the General
Agreement on Tariffs and Trade 1994.

(9) The Agreement on Preshipment Inspection.

(10) The Agreement on Rules of Origin.

(11) The Agreement on Import Licensing Procedures.

(12) The Agreement on Subsidies and Countervailing Measures.

(13) The Agreement on Safeguards.

(14) The General Agreement on Trade in Services.

(15) The Agreement on Trade-Related Aspects of Intellectual Property
Rights.

(16) The Understanding on Rules and Procedures Governing the Settlement
of Disputes.

(17) The Agreement on Government Procurement.

(18) The International Bovine Meat Agreement.

Sec. 102. Relationship of the agreements to United States law and
state law.

(a) Relationship of Agreements to United States Law.

(1) United states law to prevail in conflict. No provision of any of the
Uruguay Round Agreements, nor the application of any such provision to
any person or circumstance, that is inconsistent with any law of the
United States shall have effect.

(2) Construction. Nothing in this Act shall be construed

(A) to amend or modify any law of the United States, including any law
relating to-

(i) the protection of human, animal, or plant life or health,

(ii) the protection of the environment, or

(iii) worker safety, or

(B) to limit any authority conferred under any law of the United States,
including section 301 of the Trade Act of 1974,

unless specifically provided for in this Act.

(b) Relationship of Agreements to State Law.-

(1) Federal-State Consultation.

(A) In General. Upon the enactment of this Act, the President shall,
through the intergovernmental policy advisory committees on trade
established under section 306(c)(2)(A) of the Trade and Tariff Act of
1984 (19 U.S.C. 2114c(2)(A)), consult with the States for the purpose of
achieving conformity of State laws and practices with the Uruguay Round
Agreements.

(B) Federal-State Consultation Process. The Trade Representative shall
establish within the Office of the United States Trade Representative a
Federal-State consultation process for addressing issues relating to the
Uruguay Round Agreements that directly relate to, or will potentially
have a direct effect on, the States. The Federal-State consultation
process shall include procedures under which-

(i) the States will be informed on a continuing basis of matters under
the Uruguay Round Agreements that directly relate to, or will
potentially have a direct impact on, the States;

(ii) the States will be provided an opportunity to submit, on a
continuing basis, to the Trade Representative information and advice
with respect to matters referred to in clause (i); and

(iii) the Trade Representative will take into account the information
and advice received from the States under clause (ii) when formulating
United States positions regarding matters referred to in clause (i).

The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to
the Federal-State consultation process established by this paragraph.

(C) Federal-State Cooperation in WTO Dispute Settlement.

(i) When a WTO member requests consultations with the United States
under Article 4 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes referred to in section 101(d)(16) (hereafter
in this subsection referred to as the "Dispute Settlement
Understanding") concerning whether the law of a State is inconsistent
with the obligations undertaken by the United States in any of the
Uruguay Round Agreements, the Trade Representative shall notify the
Governor of the State or the Governor's designee, and the chief legal
officer of the jurisdiction whose law is the subject of the
consultations, as soon as possible after the request is received, but in
no event later than 7 days thereafter.

(ii) Not later than 30 days after receiving such a request for
consultations, the Trade Representative shall consult with
representatives of the State concerned regarding the matter. If the
consultations involve the laws of a large number of States, the Trade
Representative may consult with an appropriate group of representatives
of the States concerned, as determined by those States.

(iii) The Trade Representative shall make every effort to ensure that
the State concerned is involved in the development of the position of
the United States at each stage of the consultations and each subsequent
stage of dispute settlement proceedings regarding the matter. In
particular, the Trade Representative shall-

(I) notify the State concerned not later than 7 days after a WTO member
requests the establishment of a dispute settlement panel or gives notice
of the WTO member's decision to appeal a report by a dispute settlement
panel regarding the matter; and

(II) provide the State concerned with the opportunity to advise and
assist the Trade Representative in the preparation of factual
information and argumentation for any written or oral presentations by
the United States in consultations or in proceedings of a panel or the
Appellate Body regarding the matter.

(iv) If a dispute settlement panel or the Appellate Body finds that the
law of a State is inconsistent with any of the Uruguay Round Agreements,
the Trade Representative shall consult with the State concerned in an
effort to develop a mutually agreeable response to the report of the
panel or the Appellate Body and shall make every effort to ensure that
the State concerned is involved in the development of the United States
position regarding the response.

(D) Notice to States Regarding Consultations on Foreign Subcentral
Government Laws.

(i) Subject to clause (ii), the Trade Representative shall, at least 30
days before making a request for consultations under Article 4 of the
Dispute Settlement Understanding regarding a subcentral government
measure of another WTO member, notify, and solicit the views of,
appropriate representatives of each State regarding the matter.

(ii) In exigent circumstances clause (i) shall not apply, in which case
the Trade Representative shall notify the appropriate representatives of
each State not later than 3 days after making the request for
consultations referred to in clause (i).

(2) Legal Challenge.

(A) In General. No State law, or the application of such a State law,
may be declared invalid as to any person or circumstance on the ground
that the provision or application is inconsistent with any of the
Uruguay Round Agreements, except in an action brought by the United
States for the purpose of declaring such law or application invalid.

(B) Procedures Governing Action. In any action described in subparagraph
(A) that is brought by the United States against a State or any
subdivision thereof

(i) a report of a dispute settlement panel or the Appellate Body
convened under the Dispute Settlement Understanding regarding the State
law, or the law of any political subdivision thereof, shall not be
considered as binding or otherwise accorded deference;

(ii) the United States shall have the burden of proving that the law
that is the subject of the action, or the application of that law, is
inconsistent with the agreement in question;

(iii) any State whose interests may be impaired or impeded in the action
shall have the unconditional right to intervene in the action as a
party, and the United States shall be entitled to amend its complaint to
include a claim or cross-claim concerning the law of a State that so
intervenes; and

(iv) any State law that is declared invalid shall not be deemed to have
been invalid in its application during any period before the court's
judgment becomes final and all timely appeals, including discretionary
review, of such judgment are exhausted.

(C) Reports to Congressional Committees. At least 30 days before the
United States brings an action described in subparagraph (A), the Trade
Representative shall provide a report to the Committee on Ways and Means
of the House of Representatives and the Committee on Finance of the
Senate-

(i) describing the proposed action;

(ii) describing efforts by the Trade Representative to resolve the
matter with the State concerned by other means; and

(iii) if the State law was the subject of consultations under the
Dispute Settlement Understanding, certifying that the Trade
Representative has substantially complied with the requirements of
paragraph (1)(C) in connection with the matter.

Following the submission of the report, and before the action is
brought, the Trade Representative shall consult with the committees
referred to in the preceding sentence concerning the matter.

(3) Definition of State Law. For purposes of this subsection-

(A) the term "State law" includes-

(i) any law of a political subdivision of a State; and

(ii) any State law regulating or taxing the business of insurance; and

(B) the terms "dispute settlement panel" and "Appellate Body" have the
meanings given those terms in section 121.

(c) Effect of Agreement With Respect to Private Remedies.

(1) Limitations. No person other than the United States-

(A) shall have any cause of action or defense under any of the Uruguay
Round Agreements or by virtue of congressional approval of such an
agreement, or

(B) may challenge, in any action brought under any provision of law, any
action or inaction by any department, agency, or other instrumentality
of the United States, any State, or any political subdivision of a State
on the ground that such action or inaction is inconsistent with such
agreement.

(2) Intent of congress. It is the intention of the Congress through
paragraph (1) to occupy the field with respect to any cause of action or
defense under or in connection with any of the Uruguay Round Agreements,
including by precluding any person other than the United States from
bringing any action against any State or political subdivision thereof
or raising any defense to the application of State law under or in
connection with any of the Uruguay Round Agreements-

(A) on the basis of a judgment obtained by the United States in an
action brought under any such agreement; or

(B) on any other basis.

(d) Statement of Administrative Action. The statement of administrative
action approved by the Congress under section 101(a) shall be regarded
as an authoritative expression by the United States concerning the
interpretation and application of the Uruguay Round Agreements and this
Act in any judicial proceeding in which a question arises concerning
such interpretation or application.

Sec. 103. Implementing actions in anticipation of entry into force;
regulations.

(a) Implementing Actions. After the date of the enactment of this Act-

(1) the President may proclaim such actions, and

(2) other appropriate officers of the United States Government may issue
such regulations,

as may be necessary to ensure that any provision of this Act, or
amendment made by this Act, that takes effect on the date any of the
Uruguay Round Agreements enters into force with respect to the United
States is appropriately implemented on such date. Such proclamation or
regulation may not have an effective date earlier than the date of entry
into force with respect to the United States of the agreement to which
the proclamation or regulation relates.

(b) Regulations. Any interim regulation necessary or appropriate to
carry out any action proposed in the statement of administrative action
approved under section 101(a) to implement an agreement described in
section 101(d) (7), (12), or (13) shall be issued not later than 1 year
after the date on which the agreement enters into force with respect to
the United States.

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Appendix III Endnote

1 Part III of the Appendix consists of provisions of the Uruguay Round
Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809, that do not amend
title 17 of the *United States Code.*

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Appendix IV. GATT/Trade-Related Aspects of Intellectual
Property Rights (TRIPs) Agreement, Part II: [1]

Section 6: Layout-Designs (Topographies) of Integrated Circuits

Article 35

Relation to IPIC Treaty

Members agree to provide protection to the layout-designs (topographies)
of integrated circuits (hereinafter referred to as "layout-designs") in
accordance with Articles 2-7 (other than paragraph 3 of Article 6),
Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual
Property in Respect of Integrated Circuits and, in addition, to comply
with the following provisions.

Article 36

Scope of the Protection [2]

Subject to the provisions of paragraph 1 of Article 37 below, Members
shall consider unlawful the following acts if performed without the
authorization of the right holder: importing, selling, or otherwise
distributing for commercial purposes a protected layout-design, an
integrated circuit in which a protected layout-design is incorporated,
or an article incorporating such an integrated circuit only insofar as
it continues to contain an unlawfully reproduced layout-design.

Article 37

Acts not Requiring the Authorization of the Right Holder

1. Notwithstanding Article 36 above, no Member shall consider unlawful
the performance of any of the acts referred to in that Article in
respect of an integrated circuit incorporating an unlawfully reproduced
layout-design or any article incorporating such an integrated circuit
where the person performing or ordering such acts did not know and had
no reasonable ground to know, when acquiring the integrated circuit or
article incorporating such an integrated circuit, that it incorporated
an unlawfully reproduced layout-design. Members shall provide that,
after the time that such person has received sufficient notice that the
layout-design was unlawfully reproduced, he may perform any of the acts
with respect to the stock on hand or ordered before such time, but shall
be liable to pay to the right holder a sum equivalent to a reasonable
royalty such as would be payable under a freely negotiated license in
respect of such a layout-design.

2. The conditions set out in sub-paragraphs (a)-(k) of Article 31 above
shall apply *mutatis mutandis* in the event of any non-voluntary
licensing of a layout-design or of its use by or for the government
without the authorization of the right holder.

Article 38

Term of Protection

1. In Members requiring registration as a condition of protection, the
term of protection of layout-designs shall not end before the expiration
of a period of ten years counted from the date of filing an application
for registration or from the first commercial exploitation wherever in
the world it occurs.

2. In Members not requiring registration as a condition for protection,
layout-designs shall be protected for a term of no less than ten years
from the date of the first commercial exploitation wherever in the world
it occurs.

3. Notwithstanding paragraphs 1 and 2 above, a Member may provide that
protection shall lapse fifteen years after the creation of the layout-
design.

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Appendix IV Endnotes

1 For an explanation of the relationship of this section of TRIPs to
title 17 of the *United States Code*, see the second paragraph of
endnote 8, chapter 9, *supra.*

2 The term "right holder" in this section shall be understood as having
the same meaning as the term "holder of the right" in the Treaty on
Intellectual Property in Respect of Integrated Circuits, done at
Washington, D.C., on May 26, 1989.

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Appendix V. Additional Provisions of the Digital Millennium
Copyright Act [1]

Section 1. Short Title.

This Act may be cited as the "Digital Millennium Copyright Act".

Title I-WIPO Treaties Implementation

SEC. 101. SHORT TITLE.

This title may be cited as the "WIPO Copyright and Performances and
Phonograms Treaties Implementation Act of 1998".

* * * * * * *

SEC. 104. EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON
ELECTRONIC COMMERCE AND TECHNOLOGICAL DEVELOPMENT.

(a) Evaluation by the Register of Copyrights and the Assistant Secretary
for Communications and Information. The Register of Copyrights and the
Assistant Secretary for Communications and Information of the Department
of Commerce shall jointly evaluate-

(1) the effects of the amendments made by this title and the development
of electronic commerce and associated technology on the operation of
sections 109 and 117 of title 17, United States Code; and

(2) the relationship between existing and emergent technology and the
operation of sections 109 and 117 of title 17, United States Code.

(b) Report to Congress. The Register of Copyrights and the Assistant
Secretary for Communications and Information of the Department of
Commerce shall, not later than 24 months after the date of the enactment
of this Act, submit to the Congress a joint report on the evaluation
conducted under subsection (a), including any legislative
recommendations the Register and the Assistant Secretary may have.

SEC. 105. EFFECTIVE DATE.

(a) In General. Except as otherwise provided in this title, this title
and the amendments made by this title shall take effect on the date of
the enactment of this Act.

(b) Amendments Relating to Certain International Agreements. (1) The
following shall take effect upon the entry into force of the WIPO
Copyright Treaty with respect to the United States:

(A) Paragraph (5) of the definition of "international agreement"
contained in section 101 of title 17, United States Code, as amended by
section 102(a)(4) of this Act.

(B) The amendment made by section 102(a)(6) of this Act.

(C) Subparagraph (C) of section 104A(h)(1) of title 17, United States
Code, as amended by section 102(c)(1) of this Act.

(D) Subparagraph (C) of section 104A(h)(3) of title 17, United States
Code, as amended by section 102(c)(2) of this Act.

(2) The following shall take effect upon the entry into force of the
WIPO Performances and Phonograms Treaty with respect to the United
States:

(A) Paragraph (6) of the definition of "international agreement"
contained in section 101 of title 17, United States Code, as amended by
section 102(a)(4) of this Act.

(B) The amendment made by section 102(a)(7) of this Act.

(C) The amendment made by section 102(b)(2) of this Act.

(D) Subparagraph (D) of section 104A(h)(1) of title 17, United States
Code, as amended by section 102(c)(1) of this Act.

(E) Subparagraph (D) of section 104A(h)(3) of title 17, United States
Code, as amended by section 102(c)(2) of this Act.

(F) The amendments made by section 102(c)(3) of this Act.

* * * * * * *

Title II - Online Copyright Infringement Liability Limitation

SEC. 201. SHORT TITLE.

This title may be cited as the "Online Copyright Infringement Liability
Limitation Act".

* * * * * * *

SEC. 203. EFFECTIVE DATE.

This title and the amendments made by this title shall take effect on
the date of the enactment of this Act.

* * * * * * *

Title IV - Miscellaneous Provisions

SEC. 401. PROVISIONS RELATING TO THE COMMISSIONER OF PATENTS AND
TRADEMARKS AND THE REGISTER OF COPYRIGHTS-

(a) Compensation. (1) Section 3(d) of title 35, United States Code, is
amended by striking "prescribed by law for Assistant Secretaries of
Commerce" and inserting "in effect for level III of the Executive
Schedule under section 5314 of title 5, United States Code".

* * * * * * *

(3) Section 5314 of title 5, United States Code, is amended by adding at
the end the following:

"Assistant Secretary of Commerce and Commissioner of Patents and
Trademarks.

"Register of Copyrights.".

* * * * * * *

SEC. 403. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION.

(a) Recommendations by Register of Copyrights. Not later than 6 months
after the date of the enactment of this Act, the Register of Copyrights,
after consultation with representatives of copyright owners, nonprofit
educational institutions, and nonprofit libraries and archives, shall
submit to the Congress recommendations on how to promote distance
education through digital technologies, including interactive digital
networks, while maintaining an appropriate balance between the rights of
copyright owners and the needs of users of copyrighted works. Such
recommendations shall include any legislation the Register of Copyrights
considers appropriate to achieve the objective described in the
preceding sentence.

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