Pennsylvania Act 1996-194 — CRIMES CODE (18 PA.C.S.) - AMEND

Act text

CRIMES CODE (18 PA.C.S.) - AMEND
                 Act of Dec. 20, 1996, P.L. 1499, No. 194             Cl. 18
                             Session of 1996
                               No. 1996-194

     HB 2295

                                  AN ACT

     Amending Title 18 (Crimes and Offenses) of the Pennsylvania
        Consolidated Statutes, further providing for copying and
        recording devices; and providing for unlawful operation of a
        recording device in a motion picture theater.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Section 4116 of Title 18 of the Pennsylvania
     Consolidated Statutes is amended to read:
      § 4116.  Copying; recording devices.
        (a)  [Definition.--As used in this section "owner" means the]
     Definitions.--As used in this section, the following words and
     phrases shall have the meanings given to them in this
     subsection:
        "Manufacturer."  The person or entity which authorized or
     caused the recording or transfer of sounds, images or a
     combination of sounds and images to the recorded device in
     issue. The term shall not include the manufacturer of the
     cartridge or casing itself.
        "Owner."  The person who owns the master phonograph record,
     master disc, master tape, master film or other device used for
     reproducing recorded sounds on phonograph records, discs, tapes,
     films or other articles on which sound is recorded and from
     which the transferred sounds are directly or indirectly derived.
        "Recorded device."  Any phonograph record, disc, tape, film,
     videotape, video cassette or other tangible article, now known
     or later developed, upon which sounds or images or any
     combination of sounds and images are recorded.
        (b)  Unauthorized transfer of sounds on recording devices.--
     It shall be unlawful for any person to:
            (1)  knowingly transfer or cause to be transferred,
        directly or indirectly by any means, any sounds recorded on a
        phonograph record, disc, wire, tape, film or other article on
        which sounds are recorded, with the intent to sell or cause
        to be sold, or to be used for profit through public
        performance, such article on which sounds are so transferred,
        without consent of the owner; or
            (2)  manufacture, distribute or wholesale any article
        with the knowledge that the sounds are so transferred,
        without consent of the owner.
        (c)  Exceptions.--
            (1)  Subsection (b) shall not apply to any person engaged
        in radio or television broadcasting who transfers, or causes
        to be transferred, any such sounds other than from the sound
        track of a motion picture intended for, or in connection with
        broadcast or telecast transmission or related uses, or for
        archival purposes.
            (2)  Subsection (b) shall not apply to motion pictures or
        to sound recordings fixed on or after February 15, 1972.
        (d)  [Retail] Manufacture, sale or rental of illegal
     recording or recorded devices.--[It shall be unlawful for any
     person to knowingly retail or possess for the purpose of
     retailing any recorded device that has been produced,
     manufactured, distributed, or acquired at wholesale in violation
     of any provision of this section.] It shall be unlawful for any
     person to knowingly manufacture, transport, sell, resell, rent,
     advertise or offer for sale, resale or rental, or cause the
     manufacture, sale, resale or rental, or possess for such purpose
     or purposes any recorded device in violation of this section.
        (d.1)  Manufacture, sale or rental of a recording of a live
     performance without consent of the owner.--
            (1)  It shall be unlawful for any person to knowingly
        manufacture, transport, sell, resell, rent, advertise or
        offer for sale, resale or rental or cause the manufacture,
        sale, resale or rental or possess for such purpose or
        purposes any recording of a live performance with the
        knowledge that the live performance has been recorded without
        the consent of the owner.
            (2)  In the absence of a written agreement or law to the
        contrary, the performer or performers of a live performance
        are presumed to own the rights to record those sounds.
            (3)  For purposes of this section, a person who is
        authorized to maintain custody and control over business
        records that reflect whether or not the owner of the live
        performance consented to having the live performance recorded
        is a competent witness in a proceeding regarding the issue of
        consent.
        (e)  Name of manufacturer on recorded device packaging.--
     Every recorded device [sold] manufactured, transported, rented,
     sold, offered for sale or rental, or transferred or possessed
     for [the purpose of sale by any manufacturer, distributor, or
     wholesale or retail merchant] such purpose or purposes by any
     person shall contain on its packaging or label the true name of
     the manufacturer. [The term "manufacturer" shall not include the
     manufacturer of the cartridge or casing itself.]
        (f)  Confiscation of non-conforming recorded devices.--It
     shall be the duty of all law enforcement officers, upon
     discovery, to confiscate all recorded devices that do not
     conform to the provisions of subsection (e). The non-conforming
     recorded devices shall be delivered to the district attorney of
     the county in which the confiscation was made. The officer
     confiscating the recorded devices shall provide to the person
     from whom the recorded devices were confiscated notice that the
     person may request a hearing concerning the confiscation and
     disposition of the devices. Thereafter, the district attorney
     [by] may seek a court order [may give the same to a charitable
     or educational organization.] for destruction of the recorded
     devices. The provisions of this section shall apply to any non-
     conforming recorded device, regardless of the requirement in
     subsection (d) of knowledge or intent [of a retail seller].
        [(g)  Separation and grading of offenses.--Every individual
     manufacture, distribution, or sale or transfer at wholesale of
     such recorded devices in contravention of the provisions of this
     section constitutes a separate offense. An offense under this
     section is a misdemeanor of the first degree.]
        (g)  Grading of offenses.--
            (1)  Any violation of the provisions of this section
        involving, within any 180-day period, at least 100 devices
        upon which motion pictures or portions thereof have been
        recorded or at least 1,000 devices containing sound
        recordings or portions thereof is a felony of the third
        degree. A second or subsequent conviction is a felony of the
        second degree if at the time of sentencing the defendant has
        been convicted of another violation of this section.
            (2)  Any other violation of the provisions of this
        section not described in paragraph (1) upon a first
        conviction is a misdemeanor of the first degree and upon a
        second or subsequent conviction is a felony of the third
        degree if at the time of sentencing the defendant has been
        convicted of another violation of this section.
        (h)  Rights of owners and producers to damages.--
            (1)  Any owner of a recorded device whose work is
        allegedly the subject of a violation of the provisions of
        subsection (b), (d) or (e) shall have a cause of action for
        all damages resultant therefrom, including actual and
        punitive damages.
            (2)  Any lawful producer of a recorded device whose
        product is allegedly the subject of a violation of the
        provisions of subsection (b), (d) or (e) shall have a cause
        of action for all damages resultant therefrom, including
        actual and punitive damages.
            (3)  Upon conviction for any offense under this section,
        the offender may be sentenced to make restitution to any
        owner or lawful producer of a recorded device or any other
        person who suffered injury resulting from the crime.
        Notwithstanding any limitation in section 1106 (relating to
        restitution for injuries to person or property), the order of
        restitution may be based on the aggregate wholesale value of
        lawfully manufactured and authorized recorded devices
        corresponding to the non-conforming recorded devices involved
        in the offense. All other provisions of section 1106 not
        inconsistent with this provision shall apply to an order of
        restitution under this section.
        (i)  Forfeiture.--
            (1)  No property right shall exist in any property used
        or intended for use in the commission of a violation of this
        section or in any proceeds traceable to a violation of this
        section, and the same shall be deemed contraband and
        forfeited in accordance with the provisions set forth in
        section 6501(d) (relating to scattering rubbish).
            (2)  Property and proceeds found in close proximity to
        illegally recorded devices shall be rebuttably presumed to be
        used or intended for use to facilitate a violation of this
        section.
            (3)  The provisions of this subsection shall not, in any
        way, limit the right of the Commonwealth to exercise any
        rights or remedies otherwise provided by law.
        Section 2.  Title 18 is amended by adding a section to read:
      § 4116.1.  Unlawful operation of recording device in motion
                picture theater.
        (a)  Offense.--A person commits the offense of unauthorized
     operation of a recording device in a motion picture theater if
     the person operates a recording device in the theater without
     written authority or permission from the motion picture theater
     owner.
        (b)  Theater owner rights.--
            (1)  A peace officer, theater owner or an agent under
        contract with a theater owner who reasonably believes that an
        offense under the section has occurred or is occurring and
        who reasonably believes that a specific person has committed
        or is committing an offense under this section may detain the
        suspect in a reasonable manner for a reasonable time on or
        off the premises for any of the following purposes:
                (i)  To require the suspect to identify himself.
                (ii)  To verify such identification.
                (iii)  To determine whether the suspect has any
            recordings in violation of this section and, if so, to
            recover such recordings.
                (iv)  To inform a peace officer.
                (v)  To institute criminal proceedings against the
            suspect.
            (2)  If any person admitted to a theater in which a
        motion picture is to be or is being exhibited, refuses or
        fails to give or surrender possession or to cease operation
        of any recording device that the person has brought into or
        attempts to bring into that theater, then a theater owner
        shall have the right to refuse further admission to that
        person or request that the person leave the premises.
        (c)  Liability.--A theater owner or an employee or agent of a
     theater owner who detains or causes the arrest of a person in or
     immediately adjacent to a motion picture theater shall not be
     held civilly or criminally liable in any proceeding arising out
     of such detention or arrest if:
            (1)  the person detaining or causing the arrest had, at
        the time thereof, reasonably believed that the person
        detained or arrested had committed or attempted to commit in
        that person's presence an offense described in this section;
            (2)  the manner of the detention or arrest was
        reasonable;
            (3)  law enforcement authorities were notified within a
        reasonable time; and
            (4)  the person detained or arrested was surrendered to
        law enforcement authorities within a reasonable time.
        (d)  Penalty.--A first violation of this section constitutes
     a misdemeanor of the first degree. A second or subsequent
     conviction is a felony of the third degree if at the time of
     sentencing the defendant has been convicted of another violation
     of this section.
        (e)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Motion picture theater."  A premises used for the exhibition
     or performance of motion pictures to the general public.
        "Recording device."  A photographic or video camera, audio or
     video recorder or any other device now existing or later
     developed which may be used for recording or transferring sounds
     or images.
        "Theater owner."  An owner or operator and the agent,
     employee, consignee, lessee or officer of an owner or operator
     of any motion picture theater.
        Section 3.  This act shall take effect in 60 days.

     APPROVED--The 20th day of December, A. D. 1996.

     THOMAS J. RIDGE