[For an introduction, see my
DAT Tax page.
While I've attempted to make this web page an accurate presentation
of the law as enacted, this page is not a definitive or authoritative
reference. -- Eric]
United States Public Law 102-563
Audio Home Recording Act of 1992
COPYRIGHT ACT OF 1976, AS AMENDED
CHAPTER 10. DIGITAL AUDIO RECORDING DEVICES AND MEDIA
Subchapter A. Definitions
As used in this chapter, the following terms have the following meanings:
- (1)
- A "digital audio copied recording" is a reproduction in a digital
recording format of a digital musical recording, whether that reproduction is
made directly from another digital musical recording or indirectly from a
transmission.
- (2)
- A "digital audio interface device" is any machine or device that is
designed specifically to communicate digital audio information and related
interface data to a digital audio recording device through a nonprofessional
interface.
- (3)
- A "digital audio recording device" is any machine or device of a type
commonly distributed to individuals for use by individuals, whether or not
included with or as part of some other machine or device, the digital
recording function of which is designed or marketed for the primary purpose
of, and that is capable of, making a digital audio copied recording for
private use, except for--
- (A)
- professional model products, and
- (B)
- dictation machines, answering machines, and other audio recording
equipment that is designed and marketed primarily for the creation of sound
recordings resulting from the fixation of nonmusical sounds.
- (4)
-
- (A)
- A "digital audio recording medium" is any material object in a
form commonly distributed for use by individuals, that is primarily marketed
or most commonly used by consumers for the purpose of making digital audio
copied recordings by use of a digital audio recording device.
- (B)
- Such term does not include any material object--
- (i)
- that embodies a sound recording at the time it is first distributed
by the importer or manufacturer; or
- (ii)
- that is primarily marketed and most commonly used by consumers
either for the purpose of making copies of motion pictures or other
audiovisual works or for the purpose of making copies of nonmusical literary
works, including computer programs or data bases.
- (5)
-
- (A)
- A "digital musical recording" is a material object--
- (i)
- in which are fixed, in a digital recording format, only sounds, and
material, statements, or instructions incidental to those fixed sounds, if
any, and
- (ii)
- from which the sounds and material can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine or
device.
- (B)
- A "digital musical recording" does not include a material object:--
- (i)
- in which the fixed sounds consist entirely of spoken word recordings,
or
- (ii)
- in which one or more computer programs are fixed, except that a
digital musical recording may contain statements or instructions constituting
the fixed sounds and incidental material, and statements or instructions to be
used directly or indirectly in order to bring about the perception,
reproduction, or communication of the fixed sounds and incidental material.
- (C)
- For purposes of this paragraph--
- (i)
- a "spoken word recording" is a sound recording in which are fixed
only a series of spoken words, except that the spoken words may be accompanied
by incidental musical or other sounds, and
- (ii)
- the term "incidental" means related to and relatively minor by
comparison.
- (6)
- "Distribute" means to sell, lease, or assign a product to consumers in
the United States, or to sell, lease, or assign a product in the United States
for ultimate transfer to consumers in the United States.
- (7)
- An "interested copyright party" is--
- (A)
- the owner of the exclusive right under section 106(1) of this title
to reproduce a sound recording of a musical work that has been embodied in a
digital musical recording or analog musical recording lawfully made under this
title that has been distributed;
- (B)
- the legal or beneficial owner of, or the person that controls, the
right to reproduce in a digital musical recording or analog musical recording
a musical work that has been embodied in a digital musical recording or analog
musical recording lawfully made under this title that has been distributed;
- (C)
- a featured recording artist who performs on a sound recording that
has been distributed; or
- (D)
- any association or other organization--
- (i)
- representing persons specified in subparagraph (A), (B), or (C), or
- (ii)
- engaged in licensing rights in musical works to music users on
behalf of writers and publishers.
- (8)
- To "manufacture" means to produce or assemble a product in the United
States. A "manufacturer" is a person who manufactures.
- (9)
- A "music publisher" is a person that is authorized to license the
reproduction of a particular musical work in a sound recording.
- (10)
- A "professional model product" is an audio recording device that is
designed, manufactured, marketed, and intended for use by recording
professionals in the ordinary course of a lawful business, in accordance with
such requirements as the Secretary of Commerce shall establish by regulation.
- (11)
- The term "serial copying" means the duplication in a digital format
of a copyrighted musical work or sound recording from a digital reproduction
of a digital musical recording. The term "digital reproduction of a digital
musical recording" does not include a digital musical recording as
distributed, by authority of the copyright owner, for ultimate sale to
consumers.
- (12)
- The "transfer price" of a digital audio recording device or a digital
audio recording medium--
- (A)
- is, subject to subparagraph (B)--
- (i)
- in the case of an imported product, the actual entered value at
United States Customs (exclusive of any freight, insurance, and applicable
duty), and
- (ii)
- in the case of a domestic product, the manufacturer's transfer price
(FOB the manufacturer, and exclusive of any direct sales taxes or excise taxes
incurred in connection with the sale); and
- (B)
- shall, in a case in which the transferor and transferee are related
entities or within a single entity, not be less than a reasonable arms-length
price under the principles of the regulations adopted pursuant to section 482
of the Internal Revenue Code of 1986, or any successor provision to such
section.
- (13)
- A "writer" is the composer or lyricist of a particular musical work.
Subchapter B. Copying Controls
- (a)
- Prohibition on importation, manufacture, and distribution
No person shall import, manufacture, or distribute any digital audio
recording device or digital audio interface device that does not conform to--
- (1)
- the Serial Copy Management System;
- (2)
- a system that has the same functional characteristics as the Serial
Copy Management System and requires that copyright and generation status
information be accurately sent, received, and acted upon between devices using
the system's method of serial copying regulation and devices using the Serial
Copy Management System; or
- (3)
- any other system certified by the Secretary of Commerce as
prohibiting unauthorized serial copying.
- (b)
- Development of verification procedure
The Secretary of Commerce shall establish a procedure to verify, upon the
petition of an interested party, that a system meets the standards set forth
in subsection (a)(2).
- (c)
- Prohibition on circumvention of the system
No person shall
import, manufacture, or distribute any device, or offer or perform any
service, the primary purpose or effect of which is to avoid, bypass, remove,
deactivate, or otherwise circumvent any program or circuit which implements,
in whole or in part, a system described in subsection (a).
- (d)
- Encoding of information on digital musical recordings
- (1)
- Prohibition on encoding inaccurate information.
No person shall encode a digital musical recording
of a sound recording with inaccurate information relating to the category
code, copyright status, or generation status of the source material for the
recording.
- (2)
- Encoding of copyright status not required.
Nothing in
this chapter requires any person engaged in the importation or manufacture of
digital musical recordings to encode any such digital musical recording with
respect to its copyright status.
- (e)
- Information accompanying transmissions in digital format
Any person who transmits or otherwise
communicates to the public any sound recording in digital format is not
required under this chapter to transmit or otherwise communicate the
information relating to the copyright status of the sound recording. Any such
person who does transmit or otherwise communicate such copyright status
information shall transmit or communicate such information accurately.
Subchapter C. Royalty Payments
- (a)
- Prohibition on importation and manufacture
No person shall import into and distribute, or manufacture and
distribute, any digital audio recording device or digital audio
recording medium unless such person records the notice specified by
this section and subsequently deposits the statements of account
and applicable royalty payments for such device or medium specified
in section 1004.
- (b)
- Filing of notice
The importer or manufacturer of any digital audio recording
device or digital audio recording medium, within a product category
or utilizing a technology with respect to which such manufacturer
or importer has not previously filed a notice under this
subsection, shall file with the Register of Copyrights a notice
with respect to such device or medium, in such form and content as
the Register shall prescribe by regulation.
- (c)
- Filing of quarterly and annual statements of account
- (1)
- Generally.
Any importer or manufacturer that
distributes any digital audio recording device or digital audio
recording medium that it manufactured or imported shall file with
the Register of Copyrights, in such form and content as the
Register shall prescribe by regulation, such quarterly and annual
statements of account with respect to such distribution as the
Register shall prescribe by regulation.
- (2)
- Certification, verification, and confidentiality.
Each such
statement shall be certified as accurate by an authorized officer
or principal of the importer or manufacturer. The Register shall
issue regulations to provide for the verification and audit of such
statements and to protect the confidentiality of the information
contained in such statements. Such regulations shall provide for
the disclosure, in confidence, of such statements to interested
copyright parties.
- (3)
- Royalty payments.
Each such
statement shall be accompanied by the royalty payments specified in
section 1004.
- (a)
- Digital audio recording devices
- (1)
- Amount of payment.
The royalty payment due under section 1003 for each
digital audio recording device imported into and distributed in the
United States, or manufactured and distributed in the United
States, shall be 2 percent of the transfer price. Only the first
person to manufacture and distribute or import and distribute such
device shall be required to pay the royalty with respect to such
device.
- (2)
- Calculation for devices distributed with other devices.
With respect to a digital audio recording
device first distributed in combination with one or more devices,
either as a physically integrated unit or as separate components,
the royalty payment shall be calculated as follows:
- (A)
- If the digital audio recording device and such other
devices are part of a physically integrated unit, the royalty
payment shall be based on the transfer price of the unit, but shall
be reduced by any royalty payment made on any digital audio
recording device included within the unit that was not first
distributed in combination with the unit.
- (B)
- If
the digital audio recording device is not part of a physically
integrated unit and substantially similar devices have been
distributed separately at any time during the preceding 4 calendar
quarters, the royalty payment shall be based on the average
transfer price of such devices during those 4 quarters.
- (C)
- If the digital audio recording device is not part of a
physically integrated unit and substantially similar devices have
not been distributed separately at any time during the preceding 4
calendar quarters, the royalty payment shall be based on a
constructed price reflecting the proportional value of such device
to the combination as a whole.
- (3)
- Limits on royalties.
Notwithstanding paragraph (1) or (2), the amount of
the royalty payment for each digital audio recording device shall
not be less than $1 nor more than the royalty maximum. The royalty
maximum shall be $8 per device, except that in the case of a
physically integrated unit containing more than 1 digital audio
recording device, the royalty maximum for such unit shall be $12.
During the 6th year after the effective date of this chapter, and
not more than once each year thereafter, any interested copyright
party may petition the Librarian of Congress to increase the
royalty maximum and, if more than 20 percent of the royalty
payments are at the relevant royalty maximum, the Librarian of
Congress shall prospectively increase such royalty maximum with the
goal of having no more than 10 percent of such payments at the new
royalty maximum; however the amount of any such increase as a
percentage of the royalty maximum shall in no event exceed the
percentage increase in the Consumer Price Index during the period
under review.
- (b)
- Digital Audio Recording Media
The royalty payment due under section 1003 for each
digital audio recording medium imported into and distributed in the
United States, or manufactured and distributed in the United
States, shall be 3 percent of the transfer price. Only the first
person to manufacture and distribute or import and distribute such
medium shall be required to pay the royalty with respect to such
medium.
The Register of Copyrights shall receive all
royalty payments deposited under this chapter and, after deducting
the reasonable costs incurred by the Copyright Office under this
chapter, shall deposit the balance in the Treasury of the United
States as offsetting receipts, in such manner as the Secretary of
the Treasury directs. All funds held by the Secretary of the
Treasury shall be invested in interest-bearing United States
securities for later distribution with interest under
section 1007. The Register may, in the Register's discretion, 4 years
after the close of any calendar year, close out the royalty
payments account for that calendar year, and may treat any funds
remaining in such account and any subsequent deposits that would
otherwise be attributable to that calendar year as attributable to
the succeeding calendar year.
- (a)
- Interested copyright parties
The royalty
payments deposited pursuant to section 1005 shall, in
accordance with the procedures specified in section 1007,
be distributed to any interested copyright party--
- (1)
- whose musical work or sound recording has been--
- (A)
- embodied in a
digital musical recording or an analog musical recording
lawfully made under this title that has been distributed, and
- (B)
- distributed in the form of digital musical
recordings or analog musical recordings or disseminated to
the public in transmissions, during the period to which such
payments pertain; and
- (2)
- who has filed a claim under section 1007.
- (b)
- Allocation of royalty payments to groups
The royalty payments shall be divided into 2 funds as follows:
- (1)
- The Sound Recordings Fund.
66 2/3 percent of the royalty payments shall
be allocated to the Sound Recordings Fund. 2 5/8 percent of the
royalty payments allocated to the Sound Recordings Fund shall be
placed in an escrow account managed by an independent administrator
jointly appointed by the interested copyright parties described in
section 1001(7)(A) and the American Federation of Musicians (or any
successor entity) to be distributed to non-featured musicians
(whether or not members of the American Federation of Musicians or
any successor entity) who have performed on sound recordings
distributed in the United States. 1 3/8 percent of the royalty
payments allocated to the Sound Recordings Fund shall be placed in
an escrow account managed by an independent administrator jointly
appointed by the interested copyright parties described in
section 1001(7)(A)
and the American Federation of Television and Radio
Artists (or any successor entity) to be distributed to non-featured
vocalists (whether or not members of the American Federation
Television and Radio Artists or any successor entity) who have
performed on sound recordings distributed in the United States. 40
percent of the remaining royalty payments in the Sound Recordings
Fund shall be distributed to the interested copyright parties
described in section 1001(7)(C), and 60 percent
of such remaining royalty payments shall be distributed to the interested
copyright parties described in
section 1001(7)(A).
- (2)
- The Musical Works Fund.
- (A)
- 33 1/3 percent of the
royalty payments shall be allocated to the Musical Works Fund for
distribution to interested copyright parties described in
section 1001(7)(B).
- (B)
-
- (i)
- Music publishers shall be entitled to 50
percent of the royalty payments allocated to the Musical Works
Fund.
- (ii)
- Writers shall be entitled to the other
50 percent of the royalty payments allocated to the Musical Works
Fund.
- (c)
- Allocation of royalty payments within groups
If all interested copyright parties within a group
specified in subsection (b) do not agree on a voluntary proposal
for the distribution of the royalty payments within each group, the
Librarian of Congress shall convene a copyright arbitration royalty
panel which shall, pursuant to the procedures specified under
section 1007(c), allocate royalty payments under
this section based on the extent to which, during the relevant period--
- (1)
- for the Sound Recordings Fund, each sound recording was
distributed in the form of digital musical recordings or analog
musical recordings; and
- (2)
- for the Musical Works Fund,
each musical work was distributed in the form of digital musical
recordings or analog musical recordings or disseminated to the
public in transmissions.
- (a)
- Filing of claims and negotiations
- (1)
- Filing of claims.
During the first 2 months of each calendar
year after the calendar year in which this chapter takes effect,
every interested copyright party seeking to receive royalty
payments to which such party is entitled under
section 1006 shall
file with the Librarian of Congress a claim for payments collected
during the preceding year in such form and manner as the Librarian
of Congress shall prescribe by regulation.
- (2)
- Negotiations.
Notwithstanding any provision of the
antitrust laws, for purposes of this section interested copyright
parties within each group specified in
section 1006(b) may agree
among themselves to the proportionate division of royalty payments,
may lump their claims together and file them jointly or as a
single claim, or may designate a common agent, including any
organization described in
section 1001(7)(D), to negotiate or
receive payment on their behalf; except that no agreement under
this subsection may modify the allocation of royalties specified in
section 1006(b).
- (b)
- Distribution of payments in the absence of a dispute
Within 30 days after the
period established for the filing of claims under subsection (a),
in each year after the year in which this section takes effect, the
Librarian of Congress shall determine whether there exists a
controversy concerning the distribution of royalty payments under
section 1006(c).
If the Librarian of Congress determines that no
such controversy exists, the Librarian of Congress shall, within 30
days after such determination, authorize the distribution of the
royalty payments as set forth in the agreements regarding the
distribution of royalty payments entered into pursuant to
subsection (a), after deducting its reasonable administrative costs
under this section.
- (c)
- Resolution of disputes
If the Librarian of Congress finds the
existence of a controversy, the Librarian shall, pursuant to
chapter 8 of this title, convene a copyright arbitration royalty
panel to determine the distribution of royalty payments. During
the pendency of such a proceeding, the Librarian of Congress shall
withhold from distribution an amount sufficient to satisfy all
claims with respect to which a controversy exists, but shall, to
the extent feasible, authorize the distribution of any amounts that
are not in controversy. The Librarian of Congress shall, before
authorizing the distribution of such royalty payments, deduct the
reasonable administrative costs incurred by the Librarian under
this section.
SUBCHAPTER D. PROHIBITION ON CERTAIN INFRINGEMENT ACTIONS,
REMEDIES, AND ARBITRATION
No action may be brought under this title alleging infringement
of copyright based on the manufacture, importation, or
distribution of a digital audio recording device, a digital
audio recording medium, an analog recording device, or an analog
recording medium, or based on the noncommercial use by a
consumer of such a device or medium for making digital musical
recordings or analog musical recordings.
- (a)
- Civil actions
Any interested copyright
party injured by a violation of
section 1002 or
1003 may bring a
civil action in an appropriate United States district court against
any person for such violation.
- (b)
- Other civil actions
Any person injured by a violation of
this chapter may bring a civil action in an appropriate United
States district court for actual damages incurred as a result of
such violation.
- (c)
- Powers of the court
In an action brought under subsection (a), the court--
- (1)
- may grant temporary and permanent injunctions on
such terms as it deems reasonable to prevent or restrain such
violation;
- (2)
- in the case of a violation of
section 1002, or in the case of an injury resulting
from a failure to make royalty payments required by
section 1003, shall award damages under
subsection (d);
- (3)
- in its
discretion may allow the recovery of costs by or against any party
other than the United States or an officer thereof; and
- (4)
- in its discretion may award a reasonable attorney's fee to
the prevailing party.
- (d)
- Award of damages
- (1)
- Damages for section 1002 or 1003 violations.
- (A)
- Actual damages.
- (i)
- In an action brought under
subsection (a), if the court finds that a violation of section 1002
or 1003 has occurred, the court shall award to the
complaining
party its actual damages if the complaining party elects such
damages at any time before final judgment is entered.
- (ii)
- In the case of section 1003, actual damages shall
constitute the royalty payments that should have been paid under
section 1004 and deposited under
section 1005. In such a case, the
court, in its discretion, may award an additional amount of not to
exceed 50 percent of the actual damages.
- (B)
- Statutory damages for section 1002 violations.
- (i)
- Device.
A complaining party may recover an award of statutory
damages for each violation of section 1002(a) or
(c) in the sum of
not more than $2,500 per device involved in such violation or per
device on which a service prohibited by
section 1002(c) has been
performed, as the court considers just.
- (ii)
- Digital musical recording.
A complaining party may recover an
award of statutory damages for each violation of
section 1002(d) in
the sum of not more than $25 per digital musical recording involved
in such violation, as the court considers just.
- (iii)
- Transmission.
A complaining party may recover an award of damages
for each transmission or communication that violates
section 1002(e)
in the sum of not more than $10,000, as the court considers
just.
- (2)
- Repeated violations.
In any case in
which the court finds that a person has violated section 1002 or
1003 within 3 years after a final judgment against that person for
another such violation was entered, the court may increase the
award of damages to not more than double the amounts that would
otherwise be awarded under paragraph (1), as the court considers
just.
- (3)
- Innocent violations of section 1002.
The court in its discretion may reduce the total award of
damages against a person violating section 1002 to a sum of not
less than $250 in any case in which the court finds that the
violator was not aware and had no reason to believe that its acts
constituted a violation of section 1002.
- (e)
- Payment of damages
Any award of damages under
subsection (d) shall be deposited with the Register pursuant to
section 1005 for distribution to interested copyright parties as
though such funds were royalty payments made pursuant to
section 1003.
- (f)
- Impounding of articles
At any time while an action under subsection (a) is pending,
the court may order the impounding, on such terms as it deems
reasonable, of any digital audio recording device, digital musical
recording, or device specified in
section 1002(c) that is in the
custody or control of the alleged violator and that the court has
reasonable cause to believe does not comply with, or was involved
in a violation of,
section 1002.
- (g)
- Remedial modification and destruction of articles
In an action brought under
subsection (a), the court may, as part of a final judgment or
decree finding a violation of
section 1002, order the remedial
modification or the destruction of any digital audio recording
device, digital musical recording, or device specified in
section 1002(c) that--
- (1)
- does not comply with, or was
involved in a violation of, section 1002, and
- (2)
- is in the
custody or control of the violator or has been impounded under
subsection (f).
- (a)
- Scope of arbitration
Before the date of first distribution in the United States of
a digital audio recording device or a digital audio interface
device, any party manufacturing, importing, or distributing such
device, and any interested copyright party may mutually agree to
binding arbitration for the purpose of determining whether such
device is subject to
section 1002, or the basis on which royalty
payments for such device are to be made under
section 1003.
- (b)
- Initiation of arbitration proceedings
Parties agreeing to such arbitration shall file a petition with
the Librarian of Congress requesting the commencement of an
arbitration proceeding. The petition may include the names and
qualifications of potential arbitrators. Within 2 weeks after
receiving such a petition, the Librarian of Congress shall cause
notice to be published in the Federal Register of the initiation of
an arbitration proceeding. Such notice shall include the names and
qualifications of 3 arbitrators chosen by the Librarian of Congress
from a list of available arbitrators obtained from the American
Arbitration Association or such similar organization as the
Librarian of Congress shall select, and from potential arbitrators
listed in the parties' petition. The arbitrators selected under
this subsection shall constitute an Arbitration Panel.
- (c)
- Stay of judicial proceedings
Any civil action
brought under section 1009 against a party to
arbitration under this section shall, on application of one of the parties to
the arbitration, be stayed until completion of the arbitration
proceeding.
- (d)
- Arbitration proceeding
The Arbitration Panel shall conduct an arbitration proceeding
with respect to the matter concerned, in accordance with such
procedures as it may adopt. The Panel shall act on the basis of a
fully documented written record. Any party to the arbitration may
submit relevant information and proposals to the Panel. The
parties to the proceeding shall bear the entire cost thereof in
such manner and proportion as the Panel shall direct.
- (e)
- Report to Librarian of Congress
Not later
than 60 days after publication of the notice under subsection (b)
of the initiation of an arbitration proceeding, the Arbitration
Panel shall report to the Librarian of Congress its determination
concerning whether the device concerned is subject to
section 1002,
or the basis on which royalty payments for the device are to be
made under section 1003. Such report shall be accompanied by the
written record, and shall set forth the facts that the Panel found
relevant to its determination.
- (f)
- Action by the Librarian of Congress
Within 60 days after
receiving the report of the Arbitration Panel under subsection (e),
the Librarian of Congress shall adopt or reject the determination
of the Panel. The Librarian of Congress shall adopt the
determination of the Panel unless the Librarian of Congress finds
that the determination is clearly erroneous. If the Librarian of
Congress rejects the determination of the Panel, the Librarian of
Congress shall, before the end of that 60-day period, and after
full examination of the record created in the arbitration
proceeding, issue an order setting forth the Librarian's decision
and the reasons therefor. The Librarian of Congress shall cause to
be published in the Federal Register the determination of the Panel
and the decision of the Librarian of Congress under this subsection
with respect to the determination (including any order issued under
the preceding sentence).
- (g)
- Judicial review
Any decision of the Librarian of Congress under
subsection (f) with respect to a determination of the Arbitration
Panel may be appealed, by a party to the arbitration, to the
United States Court of Appeals for the District of Columbia
Circuit, within 30 days after the publication of the decision in
the Federal Register. The pendency of an appeal under this
subsection shall not stay the decision of the Librarian of
Congress. The court shall have jurisdiction to modify or vacate a
decision of the Librarian of Congress only if it finds, on the
basis of the record before the Librarian of Congress, that the
Arbitration Panel or the Librarian of Congress acted in an
arbitrary manner. If the court modifies the decision of the
Librarian of Congress, the court shall have jurisdiction to enter
its own decision in accordance with its final judgment. The court
may further vacate the decision of the Librarian of Congress and
remand the case for arbitration proceedings as provided in this
section.
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