
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.
