AMENDMENTS
MARCH 2000
 
    As the twentieth century drew to a close, a number of amendments to the Copyright Act of 1976 were signed into law.Although more in number than last year’s, they are not nearly as sweeping or important as the those enacted at the end of 1998.None of these amendments should be a major concern for libraries although some of them have the potential to affect libraries.The new amendments (1) raise the level of statutory damages under the Act, (2) require the United States Sentencing Commission to develop guidelines under the No Electronic Theft Act, (3) add sound recordings to the definition of works for hire, and (4) increase the fees for registering a copyrighted work.

 

Digital Theft Deterrence and Copyright Damages Improvement Act of 1999


 

This amendment, Pub. L. 106-160 was signed by President Clinton on December 9, 1999. The major thrust of the amendment is to increase the statutory damages for copyright infringement from the current range of $500 to $20,000 per act of infringement to a range of $750 to $30,000.In cases of willful infringement, the cap has now been raised from $100,000 to $150,000.The amendment was effective immediately upon signing.A copyright owner who sues for infringement may elect to receive either actual damages and profits or statutory damages.The advantage of statutory damages is that the owner is relieved of having to prove the actual amount of damage.However, in order to be eligible to receive statutory damages, the copyright holder must have registered the work with the U.S. Copyright Office prior to occurrence of the infringement. Statutory damages generally are aimed at providing a deterrent for infringement and to compensate the copyright holder for the harm.
 

The primary reason for the increase in the damages is to reflect general inflationary increases for all types of goods and services.The damages originally were $250 to $10,000; a 1988 amendment increased the damages to $500 to $20,000.It now appears that every decade or so the statutory damages cap will be raised.


 

The 1997 No Electronic Theft (NET) Act was also amended by this act to direct the U.S. Sentencing Commission to develop emergency sentencing guidelines within 120 days.The NET Act was intended to curb digital piracy by expanding the Copyright Act’s criminal infringement liability provisions even where there is no intent to profit from the infringement.The Act makes it a federal crime for anyone to willfully reproduce digital copyrighted works for purposes of commercial advantage or private financial gain.If the works copied are valued at $2500 or more, a convicted defendant may be fined up to $250,000 and sentenced up to five years in federal prison.


 

 In  fact, only one person has been charged under the Act.Jeffery Gerard Levy, a 22-year old University of Oregon Student had loaded large quantities of copyrighted software, music, games and movies onto his website for download.The website was hosted by the University of Oregon, which feared liability under the online service provider provisions of the Digital Millennium Copyright Act, and University officials notified authorities after it noticed the high volume of traffic that was generated by the defendant’s website.Mr. Levy pleaded guilty to posting thousands of works on the site.Although he faced maximum penalties under the NET Act, in early December, 1999 it was announced that Mr. Levy had received two years probation and would have only limited access to the Internet during that time.

Despite or perhaps because of these fairly draconian penalties, there has been a dearth of prosecutions under the NET Act.The emergency sentencing guidelines are intended to respond to this concern.At the end of December, 1999, the Sentencing Commission proposed three sentencing options to serve as the temporary emergency sentencing guidelines.They are now available for comment.
 
 

Amendment to the Definition of Work for Hire


 

A work-for-hire is a work prepared either by an employee within the scope of his or her employment or a work specifically ordered or commissioned for use as a contribution to one of nine types of collective works as apart of a: (1) motion picture, (2) other audiovisual work, (3) translation, (4) supplemental work, (5) compilation, (6) instructional text, (7) test, (8) answer material for a test, or as an (9) atlas.Signed by the President on November 29, 1999, the omnibus appropriations bill, became Pub. L. 106-113; it contained an unexpected amendment to the Copyright Act's work-for-hire provision for sound recordings.


 

This is the same bill that creates a cause of action against cybersquatters whoregister well-known trademarks and tradenames of others as Internet domain names in order to cause mischief or to exact payment from the lawful owner of the mark or name.The cybersquatter provision of the appropriations bill creates liability for using a living person's name as an Internet domain name, but it exempts using such name in connection with a copyrighted work including a work-for-hire.  According to proponents, it was necessary to add sound recordings to the definition of work-for-hire so that sound recordings could get the benefit of the exemption.Some experts say that sound recordings are already treated as works-for-hire including in the registration process, so this was only a technical amendment.The Register of Copyrights believes that the change is more substantial, however.


 

Increased Copyright Registration Fees

 
The copyright registration fees increased from $20 to $30 effective July 1, 1999.Although this was certainly earlier than the other amendments, many people remain unaware of this change. Pursuant to the Technical Amendments Act of 1997, the Register of Copyrights conducted a study on the cost of providing services to the public.On that basis of the study, consultations with the public, authors and copyright owners, and based on public policy considerations, the basic registration fee was raised to support the activities involved in copyright registration.