Family Entertainment and Copyright Act of 2004

        [Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 3021 Introduced in Senate (IS)]

108th CONGRESS
2d Session
S. 3021

To provide for the protection of intellectual property rights, and for
other purposes.

_______________________________________________________________________

IN THE SENATE OF THE UNITED STATES

November 20, 2004

Mr. Hatch (for himself and Mr. Leahy) introduced the following bill;
which was read twice

_______________________________________________________________________

A BILL

To provide for the protection of intellectual property rights, 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.

This Act may be cited as the ``Family Entertainment and Copyright
Act of 2004''.

TITLE I--ARTISTS' RIGHTS AND THEFT PREVENTION

SEC. 101. SHORT TITLE.

This title may be cited as the ``Artists' Rights and Theft
Prevention Act of 2004'' or the ``ART Act''.

SEC. 102. CRIMINAL PENALTIES FOR UNAUTHORIZED RECORDING OF MOTION
PICTURES IN A MOTION PICTURE EXHIBITION FACILITY.

(a) In General.--Chapter 113 of title 18, United States Code, is
amended by adding after section 2319A the following new section:
``Sec. 2319B. Unauthorized recording of motion pictures in a motion
picture exhibition facility
``(a) Offense.--Any person who, without the authorization of the
copyright owner, knowingly uses or attempts to use an audiovisual
recording device to transmit or make a copy of a motion picture or
other audiovisual work protected under title 17, or any part thereof,
from a performance of such work in a motion picture exhibition
facility, shall--
``(1) be imprisoned for not more than 3 years, fined under
this title, or both; or
``(2) if the offense is a second or subsequent offense, be
imprisoned for no more than 6 years, fined under this title, or
both.
The possession by a person of an audiovisual recording device in a
motion picture exhibition facility may be considered as evidence in any
proceeding to determine whether that person committed an offense under
this subsection, but shall not, by itself, be sufficient to support a
conviction of that person for such offense.
``(b) Forfeiture and Destruction.--When a person is convicted of a
violation of subsection (a), the court in its judgment of conviction
shall, in addition to any penalty provided, order the forfeiture and
destruction or other disposition of all unauthorized copies of motion
pictures or other audiovisual works protected under title 17, or parts
thereof, and any audiovisual recording devices or other equipment used
in connection with the offense.
``(c) Authorized Activities.--This section does not prevent any
lawfully authorized investigative, protective, or intelligence activity
by an officer, agent, or employee of the United States, a State, or a
political subdivision of a State, or a person acting under a contract
with the United States, a State, or a political subdivision of a State.
``(d) Immunity for Theaters.--With reasonable cause, the owner or
lessee of a facility where a motion picture is being exhibited, the
authorized agent or employee of such owner or lessee, the licensor of
the motion picture being exhibited, or the agent or employee of such
licensor--
``(1) may detain, in a reasonable manner and for a
reasonable time, any person suspected of a violation of this
section for the purpose of questioning or summoning a law
enforcement officer; and
``(2) shall not be held liable in any civil or criminal
action arising out of a detention under paragraph (1).
``(e) Victim Impact Statement.--
``(1) In general.--During the preparation of the
presentence report under rule 32(c) of the Federal Rules of
Criminal Procedure, victims of an offense under this section
shall be permitted to submit to the probation officer a victim
impact statement that identifies the victim of the offense and
the extent and scope of the injury and loss suffered by the
victim, including the estimated economic impact of the offense
on that victim.
``(2) Contents.--A victim impact statement submitted under
this subsection shall include--
``(A) producers and sellers of legitimate works
affected by conduct involved in the offense;
``(B) holders of intellectual property rights in
the works described in subparagraph (A); and
``(C) the legal representatives of such producers,
sellers, and holders.
``(f) State Law Not Preempted.--Nothing in this section may be
construed to annul or limit any rights or remedies under the laws of
any State.
``(g) Definitions.--In this section, the following definitions
shall apply:
``(1) Title 17 definitions.--The terms `audiovisual work',
`copy', `copyright owner', `motion picture', `motion picture
exhibition facility', and `transmit' have, respectively, the
meanings given those terms in section 101 of title 17.
``(2) Audiovisual recording device.--The term `audiovisual
recording device' means a digital or analog photographic or
video camera, or any other technology or device capable of
enabling the recording or transmission of a copyrighted motion
picture or other audiovisual work, or any part thereof,
regardless of whether audiovisual recording is the sole or
primary purpose of the device.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 113 of title 18, United States Code, is amended by inserting
after the item relating to section 2319A the following:

``2319B. Unauthorized recording of motion pictures in a motion picture
exhibition facility.''.
(c) Definition.--Section 101 of title 17, United States Code, is
amended by inserting after the definition of ``Motion pictures'' the
following:
``The term `motion picture exhibition facility' means a
movie theater, screening room, or other venue that is being
used primarily for the exhibition of a copyrighted motion
picture, if such exhibition is open to the public or is made to
an assembled group of viewers outside of a normal circle of a
family and its social acquaintances.''.

SEC. 103. CRIMINAL INFRINGEMENT OF A WORK BEING PREPARED FOR COMMERCIAL
DISTRIBUTION.

(a) Prohibited Acts.--Section 506(a) of title 17, United States
Code, is amended to read as follows:
``(a) Criminal Infringement.--
``(1) In general.--Any person who willfully infringes a
copyright shall be punished as provided under section 2319 of
title 18, if the infringement was committed--
``(A) for purposes of commercial advantage or
private financial gain;
``(B) by the reproduction or distribution,
including by electronic means, during any 180-day
period, of 1 or more copies or phonorecords of 1 or
more copyrighted works, which have a total retail value
of more than $1,000; or
``(C) by the distribution of a work being prepared
for commercial distribution, by making it available on
a computer network accessible to members of the public,
if such person knew or should have known that the work
was intended for commercial distribution.
``(2) Evidence.--For purposes of this subsection, evidence
of reproduction or distribution of a copyrighted work, by
itself, shall not be sufficient to establish willful
infringement of a copyright.
``(3) Definition.--In this subsection, the term `work being
prepared for commercial distribution' means--
``(A) a computer program, a musical work, a motion
picture or other audiovisual work, or a sound
recording, if at the time of unauthorized
distribution--
``(i) the copyright owner has a reasonable
expectation of commercial distribution; and
``(ii) the copies or phonorecords of the
work have not been commercially distributed; or
``(B) a motion picture, if at the time of
unauthorized distribution, the motion picture--
``(i) has been made available for viewing
in a motion picture exhibition facility; and
``(ii) has not been made available in
copies for sale to the general public in the
United States in a format intended to permit
viewing outside a motion picture exhibition
facility.''.
(b) Criminal Penalties.--Section 2319 of title 18, United States
Code, is amended--
(1) in subsection (a)--
(A) by striking ``Whoever'' and inserting ``Any
person who''; and
(B) by striking ``and (c) of this section'' and
inserting ``, (c), and (d)'';
(2) in subsection (b), by striking ``section 506(a)(1)''
and inserting ``section 506(a)(1)(A)'';
(3) in subsection (c), by striking ``section 506(a)(2) of
title 17, United States Code'' and inserting ``section
506(a)(1)(B) of title 17'';
(4) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively;
(5) by adding after subsection (c) the following:
``(d) Any person who commits an offense under section 506(a)(1)(C)
of title 17--
``(1) shall be imprisoned not more than 3 years, fined
under this title, or both;
``(2) shall be imprisoned not more than 5 years, fined
under this title, or both, if the offense was committed for
purposes of commercial advantage or private financial gain;
``(3) shall be imprisoned not more than 6 years, fined
under this title, or both, if the offense is a second or
subsequent offense; and
``(4) shall be imprisoned not more than 10 years, fined
under this title, or both, if the offense is a second or
subsequent offense under paragraph (2).''; and
(6) in subsection (f), as redesignated--
(A) in paragraph (1), by striking ``and'' at the
end;
(B) in paragraph (2), by striking the period at the
end and inserting a semicolon; and
(C) by adding at the end the following:
``(3) the term `financial gain' has the meaning given the
term in section 101 of title 17; and
``(4) the term `work being prepared for commercial
distribution' has the meaning given the term in section 506(a)
of title 17.''.

SEC. 104. CIVIL REMEDIES FOR INFRINGEMENT OF A WORK BEING PREPARED FOR
COMMERCIAL DISTRIBUTION.

(a) Preregistration.--Section 408 of title 17, United States Code,
is amended by adding at the end the following:
``(f) Preregistration of Works Being Prepared for Commercial
Distribution.--
``(1) Rulemaking.--Not later than 180 days after the date
of enactment of this subsection, the Register of Copyrights
shall issue regulations to establish procedures for
preregistration of a work that is being prepared for commercial
distribution and has not been published.
``(2) Class of works.--The regulations established under
paragraph (1) shall permit preregistration for any work that is
in a class of works that the Register determines has had a
history of infringement prior to authorized commercial
distribution.
``(3) Application for registration.--Not later than 3
months after a the first publication of a work preregistered
under this subsection, the applicant shall submit to the
Copyright Office--
``(A) an application for registration of the work;
``(B) a deposit; and
``(C) the applicable fee.
``(4) Effect of untimely application.--An action under this
chapter for infringement of a preregistered work, in a case in
which the infringement commenced no later than 2 months after
the first publication of the work shall be dismissed if the
items described in paragraph (3) are not submitted to the
Copyright Office in proper form within the earlier of--
``(A) 3 months after the first publication of the
work; or
``(B) 1 month after the copyright owner has learned
of the infringement.''.
(b) Infringement Actions.--Section 411(a) of title 17, United
States Code, is amended by inserting ``preregistration or'' after
``shall be instituted until''.
(c) Exclusion.--Section 412 of title 17, United States Code, is
amended by inserting ``, an action for infringement of the copyright of
a work that has been preregistered under section 408(f) before the
commencement of the infringement and that has an effective date of
registration not later than the earlier of 3 months after the first
publication of the work or 1 month after the copyright owner has
learned of the infringement,'' after ``section 106A(a)''.

SEC. 105. FEDERAL SENTENCING GUIDELINES.

(a) Review and Amendment.--Not later than 180 days after the date
of enactment of this Act, the United States Sentencing Commission,
pursuant to its authority under section 994 of title 28, United States
Code, and in accordance with this section, shall review and, if
appropriate, amend the Federal sentencing guidelines and policy
statements applicable to persons convicted of intellectual property
rights crimes, including any offense under--
(1) section 506, 1201, or 1202 of title 17, United States
Code; or
(2) section 2318, 2319, 2319A, 2319B, or 2320 of title 18,
United States Code.
(b) Authorization.--The United States Sentencing Commission may
amend the Federal sentencing guidelines in accordance with the
procedures set forth in section 21(a) of the Sentencing Act of 1987 (28
U.S.C. 994 note) as though the authority under that section had not
expired.
(c) Responsibilities of United States Sentencing Commission.--In
carrying out this section, the United States Sentencing Commission
shall--
(1) take all appropriate measures to ensure that the
Federal sentencing guidelines and policy statements described
in subsection (a) are sufficiently stringent to deter, and
adequately reflect the nature of, intellectual property rights
crimes;
(2) determine whether to provide a sentencing enhancement
for those convicted of the offenses described in subsection
(a), if the conduct involves the display, performance,
publication, reproduction, or distribution of a copyrighted
work before it has been authorized by the copyright owner,
whether in the media format used by the infringing party or in
any other media format;
(3) determine whether the scope of ``uploading'' set forth
in application note 3 of section 2B5.3 of the Federal
sentencing guidelines is adequate to address the loss
attributable to people who broadly distribute copyrighted works
without authorization over the Internet; and
(4) determine whether the sentencing guidelines and policy
statements applicable to the offenses described in subsection
(a) adequately reflect any harm to victims from copyright
infringement if law enforcement authorities cannot determine
how many times copyright material has been reproduced or
distributed.

TITLE II--EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO
CONTENT IN MOTION PICTURES

SEC. 201. SHORT TITLE.

This title may be cited as the ``Family Movie Act of 2004''.

SEC. 202. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO
CONTENT IN MOTION PICTURES.

(a) In General.--Section 110 of title 17, United States Code, is
amended--
(1) in paragraph (9), by striking ``and'' after the
semicolon at the end;
(2) in paragraph (10), by striking the period at the end
and inserting ``; and'';
(3) by inserting after paragraph (10) the following:
``(11) the making imperceptible, by or at the direction of
a member of a private household, of limited portions of audio
or video content of a motion picture, during a performance in
or transmitted to that household for private home viewing, from
an authorized copy of the motion picture, or the creation or
provision of a computer program or other technology that
enables such making imperceptible and that is designed and
marketed for such use at the direction of a member of a private
household, if no fixed copy of the altered version of the
motion picture is created by such computer program or other
technology.''; and
(4) by adding at the end the following:
``For purposes of paragraph (11), the term `making imperceptible'
does not include the addition of audio or video content that is
performed or displayed over or in place of existing content in a motion
picture.
``Nothing in paragraph (11) shall be construed to imply further
rights under section 106 of this title, or to have any effect on
defenses or limitations on rights granted under any other section of
this title or under any other paragraph of this section.''.
(b) Exemption From Trademark Infringement.--Section 32 of the
Trademark Act of 1946 (15 U.S.C. 1114) is amended by adding at the end
the following:
``(3)(A) Any person who engages in the conduct described in
paragraph (11) of section 110 of title 17, United States Code, and who
complies with the requirements set forth in that paragraph is not
liable on account of such conduct for a violation of any right under
this Act. This subparagraph does not preclude liability, nor shall it
be construed to restrict the defenses or limitations on rights granted
under this Act, of a person for conduct not described in paragraph (11)
of section 110 of title 17, United States Code, even if that person
also engages in conduct described in paragraph (11) of section 110 of
such title.
``(B) A manufacturer, licensee, or licensor of technology that
enables the making of limited portions of audio or video content of a
motion picture imperceptible as described in subparagraph (A) is not
liable on account of such manufacture or license for a violation of any
right under this Act, if such manufacturer, licensee, or licensor
ensures that the technology provides a clear and conspicuous notice at
the beginning of each performance that the performance of the motion
picture is altered from the performance intended by the director or
copyright holder of the motion picture. The limitations on liability in
subparagraph (A) and this subparagraph shall not apply to a
manufacturer, licensee, or licensor of technology that fails to comply
with this paragraph.
``(C) The requirement under subparagraph (B) to provide notice
shall apply only with respect to technology manufactured after the end
of the 180-day period beginning on the date of the enactment of the
Family Movie Act of 2004.
``(D) Any failure by a manufacturer, licensee, or licensor of
technology to qualify for the exemption under subparagraphs (A) and (B)
shall not be construed to create an inference of liability for
trademark infringement for any such party that engages in conduct
described in paragraph (11) of section 110 of title 17, United States
Code.''.
(c) Definition.--In this section, the term ``Trademark Act of
1946'' means the Act entitled ``An Act to provide for the registration
and protection of trademarks used in commerce, to carry out the
provisions of certain international conventions, and for other
purposes'', approved July 5, 1946 (15 U.S.C. 1051 et seq.).

TITLE III--NATIONAL FILM PRESERVATION

Subtitle A--Reauthorization of the National Film Preservation Board

SEC. 301. SHORT TITLE.

This subtitle may be cited as the ``National Film Preservation Act
of 2004''.

SEC. 302. REAUTHORIZATION AND AMENDMENT.

(a) Duties of the Librarian of Congress.--Section 103 of the
National Film Preservation Act of 1996 (2 U.S.C. 179m) is amended--
(1) in subsection (b)--
(A) by striking ``film copy'' each place that term
appears and inserting ``film or other approved copy'';
(B) by striking ``film copies'' each place that
term appears and inserting ``film or other approved
copies''; and
(C) in the third sentence, by striking
``copyrighted'' and inserting ``copyrighted, mass
distributed, broadcast, or published''; and
(2) by adding at the end the following:
``(c) Coordination of Program With Other Collection, Preservation,
and Accessibility Activities.--In carrying out the comprehensive
national film preservation program for motion pictures established
under the National Film Preservation Act of 1992, the Librarian, in
consultation with the Board established pursuant to section 104,
shall--
``(1) carry out activities to make films included in the
National Film registry more broadly accessible for research and
educational purposes, and to generate public awareness and
support of the Registry and the comprehensive national film
preservation program;
``(2) review the comprehensive national film preservation
plan, and amend it to the extent necessary to ensure that it
addresses technological advances in the preservation and
storage of, and access to film collections in multiple formats;
and
``(3) wherever possible, undertake expanded initiatives to
ensure the preservation of the moving image heritage of the
United States, including film, videotape, television, and born
digital moving image formats, by supporting the work of the
National Audio-Visual Conservation Center of the Library of
Congress, and other appropriate nonprofit archival and
preservation organizations.''.
(b) National Film Preservation Board.--Section 104 of the National
Film Preservation Act of 1996 (2 U.S.C. 179n) is amended--
(1) in subsection (a)(1) by striking ``20'' and inserting
``22'';
(2) in subsection (a)(2) by striking ``three'' and
inserting ``5'';
(3) in subsection (d) by striking ``11'' and inserting
``12''; and
(4) by striking subsection (e) and inserting the following:
``(e) Reimbursement of Expenses.--Members of the Board shall serve
without pay, but may receive travel expenses, including per diem in
lieu of subsistence, in accordance with sections 5702 and 5703 of title
5, United States Code.''.
(c) National Film Registry.--Section 106 of the National Film
Preservation Act of 1996 (2 U.S.C. 179p) is amended by adding at the
end the following:
``(e) National Audio-Visual Conservation Center.--The Librarian
shall utilize the National Audio-Visual Conservation Center of the
Library of Congress at Culpeper, Virginia, to ensure that preserved
films included in the National Film Registry are stored in a proper
manner, and disseminated to researchers, scholars, and the public as
may be appropriate in accordance with--
``(1) title 17, United States Code; and
``(2) the terms of any agreements between the Librarian and
persons who hold copyrights to such audiovisual works.''.
(d) Use of Seal.--Section 107 (a) of the National Film Preservation
Act of 1996 (2 U.S.C. 179q(a)) is amended--
(1) in paragraph (1), by inserting ``in any format'' after
``or any copy''; and
(2) in paragraph (2), by striking ``or film copy'' and
inserting ``in any format''.
(e) Effective Date.--Section 113 of the National Film Preservation
Act of 1996 (2 U.S.C. 179w) is amended by striking ``7'' and inserting
``12''.

Subtitle B--Reauthorization of the National Film Preservation
Foundation

SEC. 311. SHORT TITLE.

This subtitle may be cited as the ``National Film Preservation
Foundation Reauthorization Act of 2004''.

SEC. 312. REAUTHORIZATION AND AMENDMENT.

(a) Board of Directors.--Section 151703 of title 36, United States
Code, is amended--
(1) in subsection (b)(2)(A), by striking ``nine'' and
inserting ``12''; and
(2) in subsection (b)(4), by striking the second sentence
and inserting ``There shall be no limit to the number of terms
to which any individual may be appointed.''.
(b) Powers.--Section 151705 of title 36, United States Code, is
amended in subsection (b) by striking ``District of Columbia'' and
inserting ``the jurisdiction in which the principal office of the
corporation is located''.
(c) Principal Office.--Section 151706 of title 36, United States
Code, is amended by inserting ``, or another place as determined by the
board of directors'' after ``District of Columbia''.
(d) Authorization of Appropriations.--Section 151711 of title 36,
United States Code, is amended by striking subsections (a) and (b) and
inserting the following:
``(a) Authorization of Appropriations.--There are authorized to be
appropriated to the Library of Congress amounts necessary to carry out
this chapter, not to exceed $530,000 for each of the fiscal years 2004
through 2008. These amounts are to be made available to the corporation
to match any private contributions (whether in currency, services, or
property) made to the corporation by private persons and State and
local governments.
``(b) Limitation Related to Administrative Expenses.--Amounts
authorized under this section may not be used by the corporation for
management and general or fundraising expenses as reported to the
Internal Revenue Service as part of an annual information return
required under the Internal Revenue Code of 1986.''.

TITLE IV--PRESERVATION OF ORPHAN WORKS

SEC. 401. SHORT TITLE.

This title may be cited as the ``Preservation of Orphan Works
Act''.

SEC. 402. REPRODUCTION OF COPYRIGHTED WORKS BY LIBRARIES AND ARCHIVES.

Section 108(i) of title 17, United States Code, is amended by
striking ``(b) and (c)'' and inserting ``(b), (c), and (h)''.

TITLE V--ANTICOUNTERFEIT-ING PROVISIONS AND FRAUDULENT ONLINE IDENTITY
SANCTIONS

Subtitle A--Anticounterfeiting Provisions

SEC. 501. SHORT TITLE.

This subtitle may be cited as the ``Anticounterfeiting Act of
2004''.

SEC. 502. PROHIBITION AGAINST TRAFFICKING IN COUNTERFEIT COMPONENTS.

(a) In General.--Section 2318 of title 18, United States Code, is
amended--
(1) by striking the section heading and inserting the
following:
``Sec. 2318. Trafficking in counterfeit labels, illicit labels, or
counterfeit documentation or packaging'';
(2) by striking subsection (a) and inserting the following:
``(a) Whoever, in any of the circumstances described in subsection
(c), knowingly traffics in--
``(1) a counterfeit label or illicit label affixed to,
enclosing, or accompanying, or designed to be affixed to,
enclose, or accompany--
``(A) a phonorecord;
``(B) a copy of a computer program;
``(C) a copy of a motion picture or other
audiovisual work;
``(D) a copy of a literary work;
``(E) a copy of a pictorial, graphic, or sculptural
work;
``(F) a work of visual art; or
``(G) documentation or packaging; or
``(2) counterfeit documentation or packaging,
shall be fined under this title or imprisoned for not more than 5
years, or both.'';
(3) in subsection (b)--
(A) in paragraph (2), by striking ``and'' after the
semicolon;
(B) in paragraph (3)--
(i) by striking ``and `audiovisual work'
have'' and inserting the following:
```audiovisual work', `literary work',
`pictorial, graphic, or sculptural work',
`sound recording', `work of visual art', and
`copyright owner' have''; and
(ii) by striking the period at the end and
inserting a semicolon; and
(C) by adding at the end the following:
``(4) the term `illicit label' means a genuine certificate,
licensing document, registration card, or similar labeling
component--
``(A) that is used by the copyright owner to verify
that a phonorecord, a copy of a computer program, a
copy of a motion picture or other audiovisual work, a
copy of a literary work, a copy of a pictorial,
graphic, or sculptural work, a work of visual art, or
documentation or packaging is not counterfeit or
infringing of any copyright; and
``(B) that is, without the authorization of the
copyright owner--
``(i) distributed or intended for
distribution not in connection with the copy,
phonorecord, or work of visual art to which
such labeling component was intended to be
affixed by the respective copyright owner; or
``(ii) in connection with a genuine
certificate or licensing document, knowingly
falsified in order to designate a higher number
of licensed users or copies than authorized by
the copyright owner, unless that certificate or
document is used by the copyright owner solely
for the purpose of monitoring or tracking the
copyright owner's distribution channel and not
for the purpose of verifying that a copy or
phonorecord is noninfringing;
``(5) the term `documentation or packaging' means
documentation or packaging, in physical form, for a
phonorecord, copy of a computer program, copy of a motion
picture or other audiovisual work, copy of a literary work,
copy of a pictorial, graphic, or sculptural work, or work of
visual art; and
``(6) the term `counterfeit documentation or packaging'
means documentation or packaging that appears to be genuine,
but is not.'';
(4) in subsection (c)--
(A) by striking paragraph (3) and inserting the
following:
``(3) the counterfeit label or illicit label is affixed to,
encloses, or accompanies, or is designed to be affixed to,
enclose, or accompany--
``(A) a phonorecord of a copyrighted sound
recording or copyrighted musical work;
``(B) a copy of a copyrighted computer program;
``(C) a copy of a copyrighted motion picture or
other audiovisual work;
``(D) a copy of a literary work;
``(E) a copy of a pictorial, graphic, or sculptural
work;
``(F) a work of visual art; or
``(G) copyrighted documentation or packaging; or'';
and
(B) in paragraph (4), by striking ``for a computer
program''; and
(5) in subsection (d)--
(A) by inserting ``or illicit labels'' after
``counterfeit labels'' each place it appears; and
(B) by inserting before the period at the end the
following: ``, and of any equipment, device, or
material used to manufacture, reproduce, or assemble
the counterfeit labels or illicit labels''.
(b) Civil Remedies.--Section 2318 of title 18, United States Code,
is further amended by adding at the end the following:
``(f) Civil Remedies.--
``(1) In general.--Any copyright owner who is injured, or
is threatened with injury, by a violation of subsection (a) may
bring a civil action in an appropriate United States district
court.
``(2) Discretion of court.--In any action brought under
paragraph (1), the court--
``(A) may grant 1 or more temporary or permanent
injunctions on such terms as the court determines to be
reasonable to prevent or restrain a violation of
subsection (a);
``(B) at any time while the action is pending, may
order the impounding, on such terms as the court
determines to be reasonable, of any article that is in
the custody or control of the alleged violator and that
the court has reasonable cause to believe was involved
in a violation of subsection (a); and
``(C) may award to the injured party--
``(i) reasonable attorney fees and costs;
and
``(ii)(I) actual damages and any additional
profits of the violator, as provided in
paragraph (3); or
``(II) statutory damages, as provided in
paragraph (4).
``(3) Actual damages and profits.--
``(A) In general.--The injured party is entitled to
recover--
``(i) the actual damages suffered by the
injured party as a result of a violation of
subsection (a), as provided in subparagraph (B)
of this paragraph; and
``(ii) any profits of the violator that are
attributable to a violation of subsection (a)
and are not taken into account in computing the
actual damages.
``(B) Calculation of damages.--The court shall
calculate actual damages by multiplying--
``(i) the value of the phonorecords,
copies, or works of visual art which are, or
are intended to be, affixed with, enclosed in,
or accompanied by any counterfeit labels,
illicit labels, or counterfeit documentation or
packaging, by
``(ii) the number of phonorecords, copies,
or works of visual art which are, or are
intended to be, affixed with, enclosed in, or
accompanied by any counterfeit labels, illicit
labels, or counterfeit documentation or
packaging.
``(C) Definition.--For purposes of this paragraph,
the `value' of a phonorecord, copy, or work of visual
art is--
``(i) in the case of a copyrighted sound
recording or copyrighted musical work, the
retail value of an authorized phonorecord of
that sound recording or musical work;
``(ii) in the case of a copyrighted
computer program, the retail value of an
authorized copy of that computer program;
``(iii) in the case of a copyrighted motion
picture or other audiovisual work, the retail
value of an authorized copy of that motion
picture or audiovisual work;
``(iv) in the case of a copyrighted
literary work, the retail value of an
authorized copy of that literary work;
``(v) in the case of a pictorial, graphic,
or sculptural work, the retail value of an
authorized copy of that work; and
``(vi) in the case of a work of visual art,
the retail value of that work.
``(4) Statutory damages.--The injured party may elect, at
any time before final judgment is rendered, to recover, instead
of actual damages and profits, an award of statutory damages
for each violation of subsection (a) in a sum of not less than
$2,500 or more than $25,000, as the court considers
appropriate.
``(5) Subsequent violation.--The court may increase an
award of damages under this subsection by 3 times the amount
that would otherwise be awarded, as the court considers
appropriate, if the court finds that a person has subsequently
violated subsection (a) within 3 years after a final judgment
was entered against that person for a violation of that
subsection.
``(6) Limitation on actions.--A civil action may not be
commenced under this subsection unless it is commenced within 3
years after the date on which the claimant discovers the
violation of subsection (a).''.
(c) Conforming Amendment.--The item relating to section 2318 in the
table of sections for chapter 113 of title 18, United States Code, is
amended to read as follows:

``2318. Trafficking in counterfeit labels, illicit labels, or
counterfeit documentation or packaging.''.

SEC. 503. OTHER RIGHTS NOT AFFECTED.

(a) Chapters 5 and 12 of Title 17; Electronic Transmissions.--The
amendments made by this subtitle--
(1) shall not enlarge, diminish, or otherwise affect any
liability or limitations on liability under sections 512, 1201,
or 1202 of title 17, United States Code; and
(2) shall not be construed to apply--
(A) in any case, to the electronic transmission of
a genuine certificate, licensing document, registration
card, similar labeling component, or documentation or
packaging described in paragraph (4) or (5) of section
2318(b) of title 18, United States Code, as amended by
this subtitle; and
(B) in the case of a civil action under section
2318(f) of title 18, United States Code, to the
electronic transmission of a counterfeit label or
counterfeit documentation or packaging defined in
paragraph (1) or (6) of section 2318(b) of title 18,
United States Code.
(b) Fair Use.--The amendments made by this subtitle shall not
affect the fair use, under section 107 of title 17, United States Code,
of a genuine certificate, licensing document, registration card,
similar labeling component, or documentation or packaging described in
paragraph (4) or (5) of section 2318(b) of title 18, United States
Code, as amended by this subtitle.

Subtitle B--Fraudulent Online Identity Sanctions

SEC. 511. SHORT TITLE.

This subtitle may be cited as the ``Fraudulent Online Identity
Sanctions Act''.

SEC. 512. AMENDMENT TO TRADEMARK ACT OF 1946.

Section 35 of the Act entitled ``An Act to provide for the
registration and protection of trademarks used in commerce, to carry
out the provisions of certain international conventions, and for other
purposes'', approved July 5, 1946 (commonly referred to as the
``Trademark Act of 1946''; 15 U.S.C. 1117), is amended by adding at the
end the following new subsection:
``(e) In the case of a violation referred to in this section, it
shall be a rebuttable presumption that the violation is willful for
purposes of determining relief if the violator, or a person acting in
concert with the violator, knowingly provided or knowingly caused to be
provided materially false contact information to a domain name
registrar, domain name registry, or other domain name registration
authority in registering, maintaining, or renewing a domain name used
in connection with the violation. Nothing in this subsection limits
what may be considered a willful violation under this section.''.

SEC. 513. AMENDMENT TO TITLE 17, UNITED STATES CODE.

Section 504(c) of title 17, United States Code, is amended by
adding at the end the following new paragraph:
``(3)(A) In a case of infringement, it shall be a
rebuttable presumption that the infringement was committed
willfully for purposes of determining relief if the violator,
or a person acting in concert with the violator, knowingly
provided or knowingly caused to be provided materially false
contact information to a domain name registrar, domain name
registry, or other domain name registration authority in
registering, maintaining, or renewing a domain name used in
connection with the infringement.
``(B) Nothing in this paragraph limits what may be
considered willful infringement under this subsection.
``(C) For purposes of this paragraph, the term `domain
name' has the meaning given that term in section 45 of the Act
entitled `An Act to provide for the registration and protection
of trademarks used in commerce, to carry out the provisions of
certain international conventions, and for other purposes'
approved July 5, 1946 (commonly referred to as the `Trademark
Act of 1946'; 15 U.S.C. 1127).''.

SEC. 514. AMENDMENT TO TITLE 18, UNITED STATES CODE.

(a) Sentencing Enhancement.--Section 3559 of title 18, United
States Code, is amended by adding at the end the following:
``(f)(1) If a defendant who is convicted of a felony offense (other
than an offense of which an element is the false registration of a
domain name) knowingly falsely registered a domain name and knowingly
used that domain name in the course of that offense, the maximum
imprisonment otherwise provided by law for that offense shall be
doubled or increased by 7 years, whichever is less.
``(2) As used in this subsection--
``(A) the term `falsely registers' means registers in a
manner that prevents the effective identification of or contact
with the person who registers; and
``(B) the term `domain name' has the meaning given that
term in section 45 of the Act entitled `An Act to provide for
the registration and protection of trademarks used in commerce,
to carry out the provisions of certain international
conventions, and for other purposes' approved July 5, 1946
(commonly referred to as the `Trademark Act of 1946'; (15
U.S.C. 1127).''.
(b) United States Sentencing Commission.--
(1) Directive.--Pursuant to its authority under section
994(p) of title 28, United States Code, and in accordance with
this section, the United States Sentencing Commission shall
review and amend the sentencing guidelines and policy
statements to ensure that the applicable guideline range for a
defendant convicted of any felony offense carried out online
that may be facilitated through the use of a domain name
registered with materially false contact information is
sufficiently stringent to deter commission of such acts.
(2) Requirements.--In carrying out this subsection, the
Sentencing Commission shall provide sentencing enhancements for
anyone convicted of any felony offense furthered through
knowingly providing or knowingly causing to be provided
materially false contact information to a domain name
registrar, domain name registry, or other domain name
registration authority in registering, maintaining, or renewing
a domain name used in connection with the violation.
(3) Definition.--For purposes of this subsection, the term
``domain name'' has the meaning given that term in section 45
of the Act entitled ``An Act to provide for the registration
and protection of trademarks used in commerce, to carry out the
provisions of certain international conventions, and for other
purposes'', approved July 5, 1946 (commonly referred to as the
``Trademark Act of 1946''; 15 U.S.C. 1127).

SEC. 515. CONSTRUCTION.

(a) Free Speech and Press.--Nothing in this subtitle shall enlarge
or diminish any rights of free speech or of the press for activities
related to the registration or use of domain names.
(b) Discretion of Courts in Determining Relief.--Nothing in this
subtitle shall restrict the discretion of a court in determining
damages or other relief to be assessed against a person found liable
for the infringement of intellectual property rights.
(c) Discretion of Courts in Determining Terms of Imprisonment.--
Nothing in this subtitle shall be construed to limit the discretion of
a court to determine the appropriate term of imprisonment for an
offense under applicable law.

TITLE VI--COOPERATIVE RESEARCH AND TECHNOLOGY ENHANCEMENT

SEC. 601. SHORT TITLE.

This title may be cited as the ``Cooperative Research and
Technology Enhancement (CREATE) Act of 2004''.

SEC. 602. COLLABORATIVE EFFORTS ON CLAIMED INVENTIONS.

Section 103(c) of title 35, United States Code, is amended to read
as follows:
``(c)(1) Subject matter developed by another person, which
qualifies as prior art only under one or more of subsections (e), (f),
and (g) of section 102 of this title, shall not preclude patentability
under this section where the subject matter and the claimed invention
were, at the time the claimed invention was made, owned by the same
person or subject to an obligation of assignment to the same person.
``(2) For purposes of this subsection, subject matter developed by
another person and a claimed invention shall be deemed to have been
owned by the same person or subject to an obligation of assignment to
the same person if--
``(A) the claimed invention was made by or on behalf of
parties to a joint research agreement that was in effect on or
before the date the claimed invention was made;
``(B) the claimed invention was made as a result of
activities undertaken within the scope of the joint research
agreement; and
``(C) the application for patent for the claimed invention
discloses or is amended to disclose the names of the parties to
the joint research agreement.
``(3) For purposes of paragraph (2), the term `joint research
agreement' means a written contract, grant, or cooperative agreement
entered into by two or more persons or entities for the performance of
experimental, developmental, or research work in the field of the
claimed invention.''.

SEC. 603. EFFECTIVE DATE.

(a) In General.--The amendments made by this title shall apply to
any patent granted on or after the date of the enactment of this Act.
(b) Special Rule.--The amendments made by this title shall not
affect any final decision of a court or the United States Patent and
Trademark Office rendered before the date of the enactment of this Act,
and shall not affect the right of any party in any action pending
before the United States Patent and Trademark Office or a court on the
date of the enactment of this Act to have that party's rights
determined on the basis of the provisions of title 35, United States
Code, in effect on the day before the date of the enactment of this
Act.
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