Current StatusView additional legislative information at the LPITS web site.Bill Number: 3693 Ratification Number: 147 Act Number 92 Introducing Body: House Subject: Pirating, bootlegging, and counterfeiting provisions and penalties revised
(A92, R147, H3693)
AN ACT TO AMEND ARTICLE 9, CHAPTER 11, TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO BOOTLEG RECORDS AND TAPES, SO AS TO FURTHER PROVIDE FOR THE UNLAWFUL PIRATING, BOOTLEGGING, AND COUNTERFEITING OF RECORDS, TAPES, AND RECORDINGS AND TO PROVIDE OR REVISE THE PENALTIES FOR THE FELONY AND MISDEMEANOR OFFENSES CONTAINED IN THE ARTICLE.
Be it enacted by the General Assembly of the State of South Carolina:
Pirating, bootlegging, and counterfeiting provisions and penalties revised
SECTION 1. Article 9, Chapter 11, Title 16 of the 1976 Code is amended to read:
"Article 9
Bootleg and Counterfeit Records,
Tapes, and Recordings
Section 16-11-910. (A) It is unlawful for a person to:
(1) knowingly and wilfully transfer or cause to be transferred, for commercial advantage or private financial gain, without the consent of the owner, any sounds recorded on a phonograph record, disc, wire, tape, film, or other article on which sounds are recorded, with intent to sell or cause to be sold, or to use or cause to be used for profit through public performance, the article on which such sounds are transferred;
(2) advertise, offer for sale or resale, or sell or resell, or cause the sale or resale, or rent or cause the rental of, or possess for any of these purposes any article described in item (1) with the knowledge that the sounds on it have been transferred without the consent of the owner;
(3) offer or make available for a fee, rental, or other form of compensation, directly or indirectly, any equipment or machinery with the knowledge that it will be used by another to reproduce, without the consent of the owner, a phonograph record, disc, wire, tape, film, or other article on which sounds have been transferred. The provisions of this item do not apply to reproduction in the home for private use and with no purpose of otherwise capitalizing commercially on the reproduction; or
(4) transport for commercial advantage or private financial gain within this State or cause to be transported within this State an article with the knowledge that the sounds on it have been transferred without the consent of the owner.
A person who violates this section, upon conviction, must be punished as provided for in Section 16-11-920.
(B) As used in this section:
(1) 'Person' means an individual, partnership, corporation, company, association, any communications media including, but not limited to, radio or television, broadcasters or licensees, newspapers, magazines, or other publications, or media which offer facilities for the purposes stated in this chapter, or other legal entity.
(2) 'Owner' means the person who owns the original fixed sounds embodied in the master phonograph record, master disc, master tape, master film, or other article used for reproducing recorded sounds on phonograph records, discs, tapes, films, or other articles on which sound is or can be recorded and from which the transferred recorded sounds are directly or indirectly derived.
(3) 'Fixed' means embodied in a tangible medium of expression when its embodiment in an article, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
(4) 'Article' means the tangible medium upon which sounds or images are recorded or otherwise stored and includes any original phonograph record, disc, tape, audio or video cassette, wire, film, or other medium now known or later developed on which sounds or images are or can be recorded or otherwise stored, or any copy or reproduction which duplicates, in whole or in part, the original.
This section neither enlarges nor diminishes the right of parties in private litigation nor does it apply to the transfer by a radio or television broadcaster of any sounds (other than from the sound tract of a motion picture) intended for, or in connection with, broadcast transmission or related uses or for archival purposes. An owner of a record, disc, wire, tape, film, or other article or device which is transferred unlawfully or used in violation of this section has a cause of action in the circuit court of this State against the party committing the violation for all damages resulting therefrom, including actual, compensatory, incidental, and punitive.
Section 16-11-915. (A) It is unlawful for a person to:
(1) advertise or offer for sale or resale, or sell or resell, or cause the sale or resale, or rent or cause the rental of, or transport or cause to be transported, or possess for any of these purposes for commercial advantage or private financial gain any article containing a live performance with the knowledge that the live performance has been fixed without the consent of the owner of the live performance; or
(2) record or fix or cause to be recorded or fixed on an article with the intent to sell for commercial advantage or private financial gain, the live performance with the knowledge that the live performance has been recorded or fixed without the consent of the owner of the live performance. The provisions of this item (2) shall not apply to reproduction in the home for private use and with no purpose of otherwise capitalizing commercially on the reproduction.
A person who violates this section, upon conviction, must be punished as provided for in Section 16-11-920.
(B) As used in this section:
(1) 'Person' means an individual, partnership, corporation, company, association, or other legal entity.
(2) 'Owner', in the absence of a written agreement or operation of law to the contrary, is presumed to be the performer of the live performance.
(3) 'Fixed' means embodied in a tangible medium of expression when its embodiment in an article, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
(4) 'Article' means the tangible medium upon which sounds or images are recorded or otherwise stored and includes any original phonograph record, disc, tape, audio or video cassette, wire, film, or other medium now known or later developed on which sounds or images are or can be recorded or otherwise stored, or a copy or reproduction which duplicates in whole or in part, the original.
(5) 'Live performance' means the recitation, rendering, or playing of a series of images or musical, spoken, or other sounds in any audible sequence.
(C) For the purposes of this section, a person who is authorized to maintain custody and control over business records which reflect whether or not the owner consented to having the live performance recorded or fixed is a proper witness in any proceeding regarding the issue of consent.
(D) A witness called pursuant to this section is subject to all rules of evidence relating to the competency of a witness to testify and the relevance and admissibility of the testimony offered.
(E) This section neither enlarges nor diminishes the rights and remedies of parties in private litigation nor does it apply to the transfer by a radio or television broadcaster of any such sounds, other than from the sound tract of a motion picture, intended for, or in connection with, broadcast transmission or related uses or for archival purposes.
Section 16-11-920. (A) A person convicted of an offense under Section 16-11-910 or 16-11-915 is guilty of a felony and must be fined not more than two hundred fifty thousand dollars, imprisoned for not more than five years, or both, if the offense:
(1) involves at least one thousand unauthorized articles embodying sound or sixty-five unauthorized audio visual articles during any one hundred eighty-day period; or
(2) is a second or subsequent conviction under Section 16-11-910 or 16-11-915.
(B) A person convicted under Section 16-11-910 or 16-11-915 is guilty of a felony and must be fined not more than two hundred fifty thousand dollars or imprisoned for not more than two years, or both, if the offense involved more than one hundred but less than one thousand unauthorized articles embodying sound or more than ten but less than sixty-five unauthorized audio visual articles during any one hundred eighty-day period.
(C) A person convicted under Section 16-11-910 or 16-11-915 is guilty of a misdemeanor and must be fined not more than one thousand dollars for a first offense and not more than ten thousand dollars for a second or subsequent offense if the offense or both offenses involve not more than twenty-five unauthorized articles embodying sound or not more than ten unauthorized audio visual articles during any one hundred eighty-day period.
(D) A person convicted of any other violation of Section 16-11-910 or 16-11-915 is guilty of a felony and must be fined not more than twenty-five thousand dollars, imprisoned not to exceed one year, or both.
(E) If a person is convicted of a violation of Section 16-11-910 or 16-11-915, the court shall order the forfeiture and destruction or other disposition of:
(1) all infringing articles;
(2) all implements, devices, and equipment used or intended to be used in the manufacture of the infringing articles.
The penalties provided herein are not exclusive but are in addition to any other penalties provided by law.
Section 16-11-930. It is unlawful for a person to manufacture or knowingly sell, distribute, circulate, or cause to be sold, distributed, or circulated, advertise, resell or offer for sale or resale, or cause the sale or resale, or rent or cause the rental, or transport or cause to be transported, or possess for any of these purposes for commercial advantage or private financial gain, a phonograph record, tape, album of phonograph records or tapes, or any other article without the actual name and street address of the manufacturer, and the name of the actual performer or group prominently disclosed on the outside cover, box, or jacket containing the record, tape, album of records or tapes, or any other article. A person who violates this section, upon conviction, must be punished as provided for in Section 16-11-940. A law enforcement officer in this State, when charging a person with a violation of this section, if possible at the time of arrest, shall confiscate any records, tapes, albums, or other articles and, upon conviction of the person, the records, tapes, albums, or other articles must be destroyed.
As used in this section:
(1) 'Person' means an individual, partnership, corporation, association, or other legal entity.
(2) 'Manufacturer' means a person who actually transfers or causes the transfer of any sound or images recorded on a phonograph record, disc, wire, tape, film, or other article on which sounds are recorded or assembles and transfers any product containing such transferred sounds or images as a component of it.
(3) 'Article' means the tangible medium upon which sounds or images are recorded or otherwise stored and includes any original phonograph record, disc, tape, audio or video cassette, wire, film, or other medium now known or later developed on which sounds or images are or can be recorded or otherwise stored, or any copy or reproduction which duplicates, in whole or in part, the original.
Section 16-11-940. (A) A person who violates the provisions of Section 16-11-930, upon conviction, is guilty of a felony and must be punished by a fine of not more than two hundred fifty thousand dollars or by imprisonment for not more than five years, or both, if the offense involves at least one thousand unauthorized articles embodying sound or at least sixty-five unauthorized audio visual articles, or is a second or subsequent conviction under Section 16-11-930;
(B) A person violating the provisions of Section 16-11-930, upon conviction, is guilty of a felony and must be punished by a fine of not more than two hundred fifty thousand dollars or by imprisonment for not more than two years, or both, if the offense involves more than one hundred but less than one thousand unauthorized articles embodying sound or more than ten but less than sixty-five unauthorized audio visual articles; or
(C) A person violating the provisions of Section 16-11-930, upon conviction, is guilty of a misdemeanor and must be punished by a fine of not more than one thousand dollars for a first offense and not more than ten thousand dollars for a second or subsequent offense if the offense or both offenses involve not more than twenty-five unauthorized articles embodying sound or not more than ten unauthorized audio visual articles; or
(D) A person violating the provisions of Section 16-11-930, upon conviction, is guilty of a felony and must be punished by a fine of not more than twenty-five thousand dollars or imprisonment for not more than one year, or both, in any other case.
(E) If a person is convicted of a violation of Section 16-11-930, the court shall order the forfeiture and destruction or other disposition of:
(1) all infringing articles;
(2) all implements, devices, and equipment used or intended to be used in the manufacture of the infringing articles.
The penalties provided herein are not exclusive and are in addition to any other penalties provided by law.
(F) Each violation of Section 16-11-930 constitutes a separate offense.
Section 16-11-950. The provisions of this article do not apply to sounds or calls of wild birds or animals."
Time effective
SECTION 2. This act takes effect upon approval by the Governor.