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In a vote for copyright owners,
Congress has just made it costlier for rights
infringers. Under the Digital Theft Deterrence
and Copyright Damages Improvement Act of 1999
(Pub. L.106-160), signed into law by the President
December 9, 1999, the "normal" and "maximum"
statutory damages were increased by 50%. Previously,
the normal range of statutory damages was
$500 - $20,000 for each work infringed. Now
the range is $750 - $30,000. The maximum for
willful infringement, previously $100,000,
is now $150,000. There has been no increase
in the minimum for "innocent" infringement,
which remains at $200.
The changes are effective immediately. Therefore, plaintiffs
bringing actions against infringers on or
after December 9th will be eligible for the
new range of statutory damages, no matter
when the infringements occurred.
For actions brought before December 9th, the previous range
of statutory damages will still apply.
Another portion of that legislation directs the U.S. Sentencing
Commission to adjust the sentencing guidelines
for criminal copyright infringement to ensure
that criminal penalties are sufficiently stringent
and reflect the retail value of the works
that were infringed.
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Several provisions in the Intellectual Property and Communications Omnibus Reform Act of 1999 (the "Omnibus Act") should be of particular interest to ASCAP members, including:
1) Anticybersquatting Consumer Protection Act
Cybersquatting is now officially unlawful! Under part of the Omnibus Act, entitled, the "Anticybersquatting Consumer Protection Act," Congress has now made "cybersquatting" an explicit violation of our trademark law and has given our courts a multi-factored test to guide them in enforcing the law.
It is now prohibited to register for, traffic in, or use a domain name that is identical or confusingly similar to, or dilutes, a trademark of another, or seek to register a domain name in bad faith, with the intent to profit from the trademarked name of another. The name at issue must in fact enjoy trademark status or at least be considered "famous" at the time that the alleged cybersquatter registered for it as a domain name.
2) Domain Name Protection For Personal Names
For ASCAP members, the Anticybersquatting Consumer Protection Act contains an important section prohibiting the registration of a domain name that is the name of another living person, or a name that is substantially and confusingly similar thereto, without such person's permission, if the registrants' specific intent is to profit from the domain name by selling it for financial gain to that persons or a third party.
Why is this important for ASCAP members? If you are using your name for commercial purposes, our trademark law in general will permit you to protect it as a "mark." Accordingly, ASCAP members who have trademark interests in their names will now under this new law be able to better claim superior rights to register their name as a domain name and prevent others from using their name as a domain name. Keep in mind that there are of course a number of caveats and qualifications, such as innocent use, fair use and first amendment protections, that provide exceptions to this general statement.,/p>
3) Work for Hire Rules Now Include Sound Recordings
The Omnibus Act amends the definition of a "work for hire" to include "sound recordings" in the list of types of specially ordered or commissioned works that may be works made for hire if the contracting parties expressly agree in a writing to do so. So the message to ASCAP members is read and write your contracts carefully so you know what rights you're signing away or obtaining for yourself -- depending on which side of the table you're sitting on.
4) Satellite Carriers' New Compulsory License
Under the Omnibus Act, Congress extended satellite carriers? compulsory license until December 31, 2004. That license permits satellite carriers to retransmit to eligible subscribers distant television station signals in exchange for which the carriers pay a royalty fee to the Copyright Office.
ASCAP, on behalf of its members, along with other representatives of copyright owners makes claims against and receives distributions from these funds. The new law rolls back by 45% the higher rates that were set pursuant to a decision of a Copyright Officer Royalty Arbitration Panel in 1998.
Nonetheless, the new rates under the Act are higher than the old statutory rates.
In addition, the new law created a new royalty-free compulsory license for the retransmission of local television stations by satellite carriers.
Satellite carriers will now be able to legally offer local television station signals to their subscribers, a right that cable operations have always had.
Lastly, the law modified the test for determining when a subscriber is eligible to receive a distant television signal.
Reported by Joan McGivern & Sam Mosenkis, attorneys at ASCAP.
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