Advisories
Congress Sends “Family Entertainment and Copyright Act of 2005” to the White House
04.22.05
On Tuesday, April 19, 2005, the House of Representatives passed the “Family Entertainment and Copyright Act of 2005” (the “Act”) which was identical to the bill previously passed in the Senate on Feb. 1, 2005. When signed into law by the President, the Act will establish several new prohibitions—and exemptions—under the Copyright Act.
The Act is a compilation of several smaller bills, including the Artists’ Rights and Theft Prevention Act of 2005 (or the “ART Act”), the Family Movie Act of 2005, the National Film Preservation Act of 2005, the National Film Preservation Foundation Reauthorization Act of 2005, and the Preservation of Orphan Works Act. The first two of these smaller bills, the ART Act and the Family Movie Act of 2005, will likely be the focus of media attention, if the bill becomes law. The ART Act imposes criminal penalties for essentially two types of conduct, targeting both the use of recording devices in movie theaters, and the unauthorized distribution of works in advance of their commercial distribution dates. First, it imposes potential fines and prison terms of up to three years (or six years for subsequent offenses) for anyone who, without the copyright owner’s authorization, “knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of a motion picture of other audiovisual work protected under title 17, or any part thereof, from a performance of such work in a motion picture exhibition facility….” Movie theater owners, lessees, and employees are permitted, under the Act, to detain, “in a reasonable manner and for a reasonable time,” anyone suspected of violating this provision, for the purpose of questioning the suspected violator or summoning law enforcement.
Second, the ART Act also imposes criminal penalties of fines and prison terms up to three years, or five years for offenses committed for “commercial advantage or private financial gain” (respectively six-year and ten-year terms for subsequent offenses), for willful infringement “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.” The Act defines “being prepared for commercial distribution” as either “a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording” in which the copyright owner has a “reasonable expectation of commercial distribution” at the time of the violation, or a motion picture that “has been made available for viewing in a motion picture exhibition facility” and “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.” This provision addresses the problems encountered recently where reviewers’ copies of pre-theatrical releases are pirated and distributed in advance of the commercial release. Finally, the Act provides for the “preregistration” of works within any class that has a history of infringement in advance of commercial distribution, with a rulemaking within 180 days of enactment by the Register of Copyrights in order to define eligible classes of works.
The Family Movie Act of 2005 expressly exempts from copyright and certain trademark liability “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 private home performances, as long as “no fixed copy” of the altered version is created. “Making imperceptible” does not include, however, the addition of audio or video content in place of those portions of the work, such as dubbing. In effect, this portion of the legislation paves the way for DVR technologies that allow commercials and other announcements to be skipped as well as those technologies which remove “objectionable” content from works displayed in private homes. Manufacturers of such technology are similarly exempt from trademark liability under 15 U.S.C. § 1114 if they “provide[] a clear and conspicuous notice at the beginning of each performance” that the performance has been so altered.
The remaining pieces of legislation generally address the right of archival reproduction by libraries. The National Film Preservation Act of 2005 and National Film Preservation Foundation Reauthorization Act of 2005 refine the authority of the National Film Preservation Board, and direct the Librarian of Congress and the Board to undertake certain initiatives to ensure the continued preservation of the “moving image heritage of the United States.” Lastly, the Preservation of Orphan Works Act extends library reproduction rights to motion pictures and other audiovisual works during the last twenty years of their respective copyright terms, if the works no longer have certain commercial value (as defined further in the Act).
It is expected that the President will sign the bill into law in due course. Please contact us if you have any questions or if you would like a copy of the Act.
The Act is a compilation of several smaller bills, including the Artists’ Rights and Theft Prevention Act of 2005 (or the “ART Act”), the Family Movie Act of 2005, the National Film Preservation Act of 2005, the National Film Preservation Foundation Reauthorization Act of 2005, and the Preservation of Orphan Works Act. The first two of these smaller bills, the ART Act and the Family Movie Act of 2005, will likely be the focus of media attention, if the bill becomes law. The ART Act imposes criminal penalties for essentially two types of conduct, targeting both the use of recording devices in movie theaters, and the unauthorized distribution of works in advance of their commercial distribution dates. First, it imposes potential fines and prison terms of up to three years (or six years for subsequent offenses) for anyone who, without the copyright owner’s authorization, “knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of a motion picture of other audiovisual work protected under title 17, or any part thereof, from a performance of such work in a motion picture exhibition facility….” Movie theater owners, lessees, and employees are permitted, under the Act, to detain, “in a reasonable manner and for a reasonable time,” anyone suspected of violating this provision, for the purpose of questioning the suspected violator or summoning law enforcement.
Second, the ART Act also imposes criminal penalties of fines and prison terms up to three years, or five years for offenses committed for “commercial advantage or private financial gain” (respectively six-year and ten-year terms for subsequent offenses), for willful infringement “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.” The Act defines “being prepared for commercial distribution” as either “a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording” in which the copyright owner has a “reasonable expectation of commercial distribution” at the time of the violation, or a motion picture that “has been made available for viewing in a motion picture exhibition facility” and “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.” This provision addresses the problems encountered recently where reviewers’ copies of pre-theatrical releases are pirated and distributed in advance of the commercial release. Finally, the Act provides for the “preregistration” of works within any class that has a history of infringement in advance of commercial distribution, with a rulemaking within 180 days of enactment by the Register of Copyrights in order to define eligible classes of works.
The Family Movie Act of 2005 expressly exempts from copyright and certain trademark liability “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 private home performances, as long as “no fixed copy” of the altered version is created. “Making imperceptible” does not include, however, the addition of audio or video content in place of those portions of the work, such as dubbing. In effect, this portion of the legislation paves the way for DVR technologies that allow commercials and other announcements to be skipped as well as those technologies which remove “objectionable” content from works displayed in private homes. Manufacturers of such technology are similarly exempt from trademark liability under 15 U.S.C. § 1114 if they “provide[] a clear and conspicuous notice at the beginning of each performance” that the performance has been so altered.
The remaining pieces of legislation generally address the right of archival reproduction by libraries. The National Film Preservation Act of 2005 and National Film Preservation Foundation Reauthorization Act of 2005 refine the authority of the National Film Preservation Board, and direct the Librarian of Congress and the Board to undertake certain initiatives to ensure the continued preservation of the “moving image heritage of the United States.” Lastly, the Preservation of Orphan Works Act extends library reproduction rights to motion pictures and other audiovisual works during the last twenty years of their respective copyright terms, if the works no longer have certain commercial value (as defined further in the Act).
It is expected that the President will sign the bill into law in due course. Please contact us if you have any questions or if you would like a copy of the Act.