[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 227 Engrossed in Senate (ES)]
104th CONGRESS
1st Session
S. 227
_______________________________________________________________________
AN ACT
To amend title 17, United States Code, to provide an exclusive right to
perform sound recordings publicly by means of digital transmissions,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Digital Performance Right in Sound
Recordings Act of 1995''.
SEC. 2. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS.
Section 106 of title 17, United States Code, is amended--
(1) in paragraph (4) by striking ``and'' after the
semicolon;
(2) in paragraph (5) by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(6) in the case of sound recordings, to perform the
copyrighted work publicly by means of a digital audio
transmission.''.
SEC. 3. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS.
Section 114 of title 17, United States Code, is amended--
(1) in subsection (a) by striking ``and (3)'' and inserting
``(3) and (6)'';
(2) in subsection (b) in the first sentence by striking
``phonorecords, or of copies of motion pictures and other
audiovisual works,'' and inserting ``phonorecords or copies'';
(3) by striking subsection (d) and inserting:
``(d) Limitations on Exclusive Right.--Notwithstanding the
provisions of section 106(6)--
``(1) Exempt transmissions and retransmissions.--The
performance of a sound recording publicly by means of a digital
audio transmission, other than as a part of an interactive
service, is not an infringement of section 106(6) if the
performance is part of--
``(A)(i) a nonsubscription transmission other than
a retransmission;
``(ii) an initial nonsubscription retransmission
made for direct reception by members of the public of a
prior or simultaneous incidental transmission that is
not made for direct reception by members of the public;
or
``(iii) a nonsubscription broadcast transmission;
``(B) a retransmission of a nonsubscription
broadcast transmission: Provided, That, in the case of
a retransmission of a radio station's broadcast
transmission--
``(i) the radio station's broadcast
transmission is not willfully or repeatedly
retransmitted more than a radius of 150 miles
from the site of the radio broadcast
transmitter, however--
``(I) the 150 mile limitation under
this clause shall not apply when a
nonsubscription broadcast transmission
by a radio station licensed by the
Federal Communications Commission is
retransmitted on a nonsubscription
basis by a terrestrial broadcast
station, terrestrial translator, or
terrestrial repeater licensed by the
Federal Communications Commission; and
``(II) in the case of a
subscription retransmission of a
nonsubscription broadcast
retransmission covered by subclause
(I), the 150 mile radius shall be
measured from the transmitter site of
such broadcast retransmitter;
``(ii) the retransmission is of radio
station broadcast transmissions that are--
``(I) obtained by the retransmitter
over the air;
``(II) not electronically processed
by the retransmitter to deliver
separate and discrete signals; and
``(III) retransmitted only within
the local communities served by the
retransmitter;
``(iii) the radio station's broadcast
transmission was being retransmitted to cable
systems (as defined in section 111(f)) by a
satellite carrier on January 1, 1995, and that
retransmission was being retransmitted by cable
systems as a separate and discrete signal, and
the satellite carrier obtains the radio
station's broadcast transmission in an analog
format: Provided, That the broadcast
transmission being retransmitted may embody the
programming of no more than one radio station;
or
``(iv) the radio station's broadcast
transmission is made by a noncommercial
educational broadcast station funded on or
after January 1, 1995, under section 396(k) of
the Communications Act of 1934 (47 U.S.C.
396(k)), consists solely of noncommercial
educational and cultural radio programs, and
the retransmission, whether or not
simultaneous, is a nonsubscription terrestrial
broadcast retransmission; or
``(C) a transmission that comes within any of the
following categories:
``(i) a prior or simultaneous transmission
incidental to an exempt transmission, such as a
feed received by and then retransmitted by an
exempt transmitter: Provided, That such
incidental transmissions do not include any
subscription transmission directly for
reception by members of the public;
``(ii) a transmission within a business
establishment, confined to its premises or the
immediately surrounding vicinity;
``(iii) a retransmission by any
retransmitter, including a multichannel video
programming distributor as defined in section
602(12) of the Communications Act of 1934 (47
U.S.C. 522(12)), of a transmission by a
transmitter licensed to publicly perform the
sound recording as a part of that transmission,
if the retransmission is simultaneous with the
licensed transmission and authorized by the
transmitter; or
``(iv) a transmission to a business
establishment for use in the ordinary course of
its business: Provided, That the business
recipient does not retransmit the transmission
outside of its premises or the immediately
surrounding vicinity, and that the transmission
does not exceed the sound recording performance
complement. Nothing in this clause shall limit
the scope of the exemption in clause (ii).
``(2) Subscription transmissions.--In the case of a
subscription transmission not exempt under subsection (d)(1),
the performance of a sound recording publicly by means of a
digital audio transmission shall be subject to statutory
licensing, in accordance with subsection (f) of this section,
if--
``(A) the transmission is not part of an
interactive service;
``(B) the transmission does not exceed the sound
recording performance complement;
``(C) the transmitting entity does not cause to be
published by means of an advance program schedule or
prior announcement the titles of the specific sound
recordings or phonorecords embodying such sound
recordings to be transmitted;
``(D) except in the case of transmission to a
business establishment, the transmitting entity does
not automatically and intentionally cause any device
receiving the transmission to switch from one program
channel to another; and
``(E) except as provided in section 1002(e) of this
title, the transmission of the sound recording is
accompanied by the information encoded in that sound
recording, if any, by or under the authority of the
copyright owner of that sound recording, that
identifies the title of the sound recording, the
featured recording artist who performs on the sound
recording, and related information, including
information concerning the underlying musical work and
its writer.
``(3) Licenses for transmissions by interactive services.--
``(A) No interactive service shall be granted an
exclusive license under section 106(6) for the
performance of a sound recording publicly by means of
digital audio transmission for a period in excess of 12
months, except that with respect to an exclusive
license granted to an interactive service by a licensor
that holds the copyright to 1,000 or fewer sound
recordings, the period of such license shall not exceed
24 months: Provided, however, That the grantee of such
exclusive license shall be ineligible to receive
another exclusive license for the performance of that
sound recording for a period of 13 months from the
expiration of the prior exclusive license.
``(B) The limitation set forth in subparagraph (A)
of this paragraph shall not apply if--
``(i) the licensor has granted and there
remain in effect licenses under section 106(6)
for the public performance of sound recordings
by means of digital audio transmission by at
least 5 different interactive services:
Provided, however, That each such license must
be for a minimum of 10 percent of the
copyrighted sound recordings owned by the
licensor that have been licensed to interactive
services, but in no event less than 50 sound
recordings; or
``(ii) the exclusive license is granted to
perform publicly up to 45 seconds of a sound
recording and the sole purpose of the
performance is to promote the distribution or
performance of that sound recording.
``(C) Notwithstanding the grant of an exclusive or
nonexclusive license of the right of public performance
under section 106(6), an interactive service may not
publicly perform a sound recording unless a license has
been granted for the public performance of any
copyrighted musical work contained in the sound
recording: Provided, That such license to publicly
perform the copyrighted musical work may be granted
either by a performing rights society representing the
copyright owner or by the copyright owner.
``(D) The performance of a sound recording by means
of a retransmission of a digital audio transmission is
not an infringement of section 106(6) if--
``(i) the retransmission is of a
transmission by an interactive service licensed
to publicly perform the sound recording to a
particular member of the public as part of that
transmission; and
``(ii) the retransmission is simultaneous
with the licensed transmission, authorized by
the transmitter, and limited to that particular
member of the public intended by the
interactive service to be the recipient of the
transmission.
``(E) For the purposes of this paragraph--
``(i) a `licensor' shall include the
licensing entity and any other entity under any
material degree of common ownership,
management, or control that owns copyrights in
sound recordings; and
``(ii) a `performing rights society' is an
association or corporation that licenses the
public performance of nondramatic musical works
on behalf of the copyright owner, such as the
American Society of Composers, Authors and
Publishers, Broadcast Music, Inc., and SESAC,
Inc.
``(4) Rights not otherwise limited.--
``(A) Except as expressly provided in this section,
this section does not limit or impair the exclusive
right to perform a sound recording publicly by means of
a digital audio transmission under section 106(6).
``(B) Nothing in this section annuls or limits in
any way--
``(i) the exclusive right to publicly
perform a musical work, including by means of a
digital audio transmission, under section
106(4);
``(ii) the exclusive rights in a sound
recording or the musical work embodied therein
under sections 106(1), 106(2) and 106(3); or
``(iii) any other rights under any other
clause of section 106, or remedies available
under this title, as such rights or remedies
exist either before or after the date of
enactment of the Digital Performance Right in
Sound Recordings Act of 1995.
``(C) Any limitations in this section on the
exclusive right under section 106(6) apply only to the
exclusive right under section 106(6) and not to any
other exclusive rights under section 106. Nothing in
this section shall be construed to annul, limit, impair
or otherwise affect in any way the ability of the owner
of a copyright in a sound recording to exercise the
rights under sections 106(1), 106(2) and 106(3), or to
obtain the remedies available under this title pursuant
to such rights, as such rights and remedies exist
either before or after the date of enactment of the
Digital Performance Right in Sound Recordings Act of
1995.''; and
(4) by adding after subsection (d) the following:
``(e) Authority for Negotiations.--
``(1) Notwithstanding any provision of the antitrust laws,
in negotiating statutory licenses in accordance with subsection
(f), any copyright owners of sound recordings and any entities
performing sound recordings affected by this section may
negotiate and agree upon the royalty rates and license terms
and conditions for the performance of such sound recordings and
the proportionate division of fees paid among copyright owners,
and may designate common agents on a nonexclusive basis to
negotiate, agree to, pay, or receive payments.
``(2) For licenses granted under section 106(6), other than
statutory licenses, such as for performances by interactive
services or performances that exceed the sound recording
performance complement--
``(A) copyright owners of sound recordings affected
by this section may designate common agents to act on
their behalf to grant licenses and receive and remit
royalty payments: Provided, That each copyright owner
shall establish the royalty rates and material license
terms and conditions unilaterally, that is, not in
agreement, combination, or concert with other copyright
owners of sound recordings; and
``(B) entities performing sound recordings affected
by this section may designate common agents to act on
their behalf to obtain licenses and collect and pay
royalty fees: Provided, That each entity performing
sound recordings shall determine the royalty rates and
material license terms and conditions unilaterally,
that is, not in agreement, combination, or concert with
other entities performing sound recordings.
``(f) Licenses for Nonexempt Subscription Transmissions.--
``(1) No later than 30 days after the enactment of the
Digital Performance Right in Sound Recordings Act of 1995, the
Librarian of Congress shall cause notice to be published in the
Federal Register of the initiation of voluntary negotiation
proceedings for the purpose of determining reasonable terms and
rates of royalty payments for the activities specified by
subsection (d)(2) of this section during the period beginning
on the effective date of such Act and ending on December 31,
2000. Such terms and rates shall distinguish among the
different types of digital audio transmission services then in
operation. Any copyright owners of sound recordings or any
entities performing sound recordings affected by this section
may submit to the Librarian of Congress licenses covering such
activities with respect to such sound recordings. The parties
to each negotiation proceeding shall bear their own costs.
``(2) In the absence of license agreements negotiated under
paragraph (1), during the 60-day period commencing 6 months
after publication of the notice specified in paragraph (1), and
upon the filing of a petition in accordance with section
803(a)(1), the Librarian of Congress shall, pursuant to chapter
8, convene a copyright arbitration royalty panel to determine
and publish in the Federal Register a schedule of rates and
terms which, subject to paragraph (3), shall be binding on all
copyright owners of sound recordings and entities performing
sound recordings. In addition to the objectives set forth in
section 801(b)(1), in establishing such rates and terms, the
copyright arbitration royalty panel may consider the rates and
terms for comparable types of digital audio transmission
services and comparable circumstances under voluntary license
agreements negotiated as provided in paragraph (1). The
Librarian of Congress shall also establish requirements by
which copyright owners may receive reasonable notice of the use
of their sound recordings under this section, and under which
records of such use shall be kept and made available by
entities performing sound recordings.
``(3) License agreements voluntarily negotiated at any time
between one or more copyright owners of sound recordings and
one or more entities performing sound recordings shall be given
effect in lieu of any determination by a copyright arbitration
royalty panel or decision by the Librarian of Congress.
``(4)(A) Publication of a notice of the initiation of
voluntary negotiation proceedings as specified in paragraph (1)
shall be repeated, in accordance with regulations that the
Librarian of Congress shall prescribe--
``(i) no later than 30 days after a petition is
filed by any copyright owners of sound recordings or
any entities performing sound recordings affected by
this section indicating that a new type of digital
audio transmission service on which sound recordings
are performed is or is about to become operational; and
``(ii) in the first week of January, 2000 and at 5-
year intervals thereafter.
``(B)(i) The procedures specified in paragraph (2) shall be
repeated, in accordance with regulations that the Librarian of
Congress shall prescribe, upon the filing of a petition in
accordance with section 803(a)(1) during a 60-day period
commencing--
``(I) six months after publication of a notice of
the initiation of voluntary negotiation proceedings
under paragraph (1) pursuant to a petition under
paragraph (4)(A)(i); or
``(II) on July 1, 2000 and at 5-year intervals
thereafter.
``(ii) The procedures specified in paragraph (2) shall be
concluded in accordance with section 802.
``(5)(A) Any person who wishes to perform a sound recording
publicly by means of a nonexempt subscription transmission
under this subsection may do so without infringing the
exclusive right of the copyright owner of the sound recording--
``(i) by complying with such notice requirements as
the Librarian of Congress shall prescribe by regulation
and by paying royalty fees in accordance with this
subsection; or
``(ii) if such royalty fees have not been set, by
agreeing to pay such royalty fees as shall be
determined in accordance with this subsection.
``(B) Any royalty payments in arrears shall be made on or
before the twentieth day of the month next succeeding the month
in which the royalty fees are set.
``(g) Proceeds From Licensing of Subscription Transmissions.--
``(1) Except in the case of a subscription transmission
licensed in accordance with subsection (f) of this section--
``(A) a featured recording artist who performs on a
sound recording that has been licensed for a
subscription transmission shall be entitled to receive
payments from the copyright owner of the sound
recording in accordance with the terms of the artist's
contract; and
``(B) a nonfeatured recording artist who performs
on a sound recording that has been licensed for a
subscription transmission shall be entitled to receive
payments from the copyright owner of the sound
recording in accordance with the terms of the
nonfeatured recording artist's applicable contract or
other applicable agreement.
``(2) The copyright owner of the exclusive right under
section 106(6) of this title to publicly perform a sound
recording by means of a digital audio transmission shall
allocate to recording artists in the following manner its
receipts from the statutory licensing of subscription
transmission performances of the sound recording in accordance
with subsection (f) of this section:
``(A) 2\1/2\ percent of the receipts shall be
deposited in an escrow account managed by an
independent administrator jointly appointed by
copyright owners of sound recordings and the American
Federation of Musicians (or any successor entity) to be
distributed to nonfeatured musicians (whether or not
members of the American Federation of Musicians) who
have performed on sound recordings.
``(B) 2\1/2\ percent of the receipts shall be
deposited in an escrow account managed by an
independent administrator jointly appointed by
copyright owners of sound recordings and the American
Federation of Television and Radio Artists (or any
successor entity) to be distributed to nonfeatured
vocalists (whether or not members of the American
Federation of Television and Radio Artists) who have
performed on sound recordings.
``(C) 45 percent of the receipts shall be
allocated, on a per sound recording basis, to the
recording artist or artists featured on such sound
recording (or the persons conveying rights in the
artists' performance in the sound recordings).
``(h) Licensing to Affiliates.--
``(1) If the copyright owner of a sound recording licenses
an affiliated entity the right to publicly perform a sound
recording by means of a digital audio transmission under
section 106(6), the copyright owner shall make the licensed
sound recording available under section 106(6) on no less
favorable terms and conditions to all bona fide entities that
offer similar services, except that, if there are material
differences in the scope of the requested license with respect
to the type of service, the particular sound recordings
licensed, the frequency of use, the number of subscribers
served, or the duration, then the copyright owner may establish
different terms and conditions for such other services.
``(2) The limitation set forth in paragraph (1) of this
subsection shall not apply in the case where the copyright
owner of a sound recording licenses--
``(A) an interactive service; or
``(B) an entity to perform publicly up to 45
seconds of the sound recording and the sole purpose of
the performance is to promote the distribution or
performance of that sound recording.
``(i) No Effect on Royalties for Underlying Works.--License fees
payable for the public performance of sound recordings under section
106(6) shall not be taken into account in any administrative, judicial,
or other governmental proceeding to set or adjust the royalties payable
to copyright owners of musical works for the public performance of
their works. It is the intent of Congress that royalties payable to
copyright owners of musical works for the public performance of their
works shall not be diminished in any respect as a result of the rights
granted by section 106(6).
``(j) Definitions.--As used in this section, the following terms
have the following meanings:
``(1) An `affiliated entity' is an entity engaging in
digital audio transmissions covered by section 106(6), other
than an interactive service, in which the licensor has any
direct or indirect partnership or any ownership interest
amounting to 5 percent or more of the outstanding voting or
non-voting stock.
``(2) A `broadcast' transmission is a transmission made by
a terrestrial broadcast station licensed as such by the Federal
Communications Commission.
``(3) A `digital audio transmission' is a digital
transmission as defined in section 101, that embodies the
transmission of a sound recording. This term does not include
the transmission of any audiovisual work.
``(4) An `interactive service' is one that enables a member
of the public to receive, on request, a transmission of a
particular sound recording chosen by or on behalf of the
recipient. The ability of individuals to request that
particular sound recordings be performed for reception by the
public at large does not make a service interactive. If an
entity offers both interactive and non-interactive services
(either concurrently or at different times), the non-
interactive component shall not be treated as part of an
interactive service.
``(5) A `nonsubscription' transmission is any transmission
that is not a subscription transmission.
``(6) A `retransmission' is a further transmission of an
initial transmission, and includes any further retransmission
of the same transmission. Except as provided in this section, a
transmission qualifies as a `retransmission' only if it is
simultaneous with the initial transmission. Nothing in this
definition shall be construed to exempt a transmission that
fails to satisfy a separate element required to qualify for an
exemption under section 114(d)(1).
``(7) The `sound recording performance complement' is the
transmission during any 3-hour period, on a particular channel
used by a transmitting entity, of no more than--
``(A) 3 different selections of sound recordings
from any one phonorecord lawfully distributed for
public performance or sale in the United States, if no
more than 2 such selections are transmitted
consecutively; or
``(B) 4 different selections of sound recordings
``(i) by the same featured recording
artist; or
``(ii) from any set or compilation of
phonorecords lawfully distributed together as a
unit for public performance or sale in the
United States,
if no more than three such selections are transmitted
consecutively:
Provided, That the transmission of selections in excess of the
numerical limits provided for in clauses (A) and (B) from
multiple phonorecords shall nonetheless qualify as a sound
recording performance complement if the programming of the
multiple phonorecords was not willfully intended to avoid the
numerical limitations prescribed in such clauses.
``(8) A `subscription' transmission is a transmission that
is controlled and limited to particular recipients, and for
which consideration is required to be paid or otherwise given
by or on behalf of the recipient to receive the transmission or
a package of transmissions including the transmission.
``(9) A `transmission' includes both an initial
transmission and a retransmission.''.
SEC. 4. MECHANICAL ROYALTIES IN DIGITAL PHONORECORD DELIVERIES.
Section 115 of title 17, United States Code, is amended--
(1) in subsection (a)(1)--
(A) in the first sentence by striking out ``any
other person'' and inserting in lieu thereof ``any
other person, including those who make phonorecords or
digital phonorecord deliveries,''; and
(B) in the second sentence by inserting before the
period ``, including by means of a digital phonorecord
delivery'';
(2) in subsection (c)(2) in the second sentence by
inserting ``and other than as provided in paragraph (3),''
after ``For this purpose,'';
(3) by redesignating paragraphs (3), (4), and (5) of
subsection (c) as paragraphs (4), (5), and (6), respectively,
and by inserting after paragraph (2) the following new
paragraph:
``(3)(A) A compulsory license under this section includes
the right of the compulsory licensee to distribute or authorize
the distribution of a phonorecord of a nondramatic musical work
by means of a digital transmission which constitutes a digital
phonorecord delivery, regardless of whether the digital
transmission is also a public performance of the sound
recording under section 106(6) of this title or of any
nondramatic musical work embodied therein under section 106(4)
of this title. For every digital phonorecord delivery by or
under the authority of the compulsory licensee--
``(i) on or before December 31, 1997, the royalty
payable by the compulsory licensee shall be the royalty
prescribed under paragraph (2) and chapter 8 of this
title; and
``(ii) on or after January 1, 1998, the royalty
payable by the compulsory licensee shall be the royalty
prescribed under subparagraphs (B) through (F) and
chapter 8 of this title.
``(B) Notwithstanding any provision of the antitrust laws,
any copyright owners of nondramatic musical works and any
persons entitled to obtain a compulsory license under
subsection (a)(1) may negotiate and agree upon the terms and
rates of royalty payments under this paragraph and the
proportionate division of fees paid among copyright owners, and
may designate common agents to negotiate, agree to, pay or
receive such royalty payments. Such authority to negotiate the
terms and rates of royalty payments includes, but is not
limited to, the authority to negotiate the year during which
the royalty rates prescribed under subparagraphs (B) through
(F) and chapter 8 of this title shall next be determined.
``(C) During the period of June 30, 1996, through December
31, 1996, the Librarian of Congress shall cause notice to be
published in the Federal Register of the initiation of
voluntary negotiation proceedings for the purpose of
determining reasonable terms and rates of royalty payments for
the activities specified by subparagraph (A) during the period
beginning January 1, 1998, and ending on the effective date of
any new terms and rates established pursuant to subparagraph
(C), (D) or (F), or such other date (regarding digital
phonorecord deliveries) as the parties may agree. Such terms
and rates shall distinguish between (i) digital phonorecord
deliveries where the reproduction or distribution of a
phonorecord is incidental to the transmission which constitutes
the digital phonorecord delivery, and (ii) digital phonorecord
deliveries in general. Any copyright owners of nondramatic
musical works and any persons entitled to obtain a compulsory
license under subsection (a)(1) may submit to the Librarian of
Congress licenses covering such activities. The parties to each
negotiation proceeding shall bear their own costs.
``(D) In the absence of license agreements negotiated under
subparagraphs (B) and (C), upon the filing of a petition in
accordance with section 803(a)(1), the Librarian of Congress
shall, pursuant to chapter 8, convene a copyright arbitration
royalty panel to determine and publish in the Federal Register
a schedule of rates and terms which, subject to subparagraph
(E), shall be binding on all copyright owners of nondramatic
musical works and persons entitled to obtain a compulsory
license under subsection (a)(1) during the period beginning
January 1, 1998, and ending on the effective date of any new
terms and rates established pursuant to subparagraph (C), (D)
or (F), or such other date (regarding digital phonorecord
deliveries) as may be determined pursuant to subparagraphs (B)
and (C). Such terms and rates shall distinguish between (i)
digital phonorecord deliveries where the reproduction or
distribution of a phonorecord is incidental to the transmission
which constitutes the digital phonorecord delivery, and (ii)
digital phonorecord deliveries in general. In addition to the
objectives set forth in section 801(b)(1), in establishing such
rates and terms, the copyright arbitration royalty panel may
consider rates and terms under voluntary license agreements
negotiated as provided in subparagraphs (B) and (C). The
royalty rates payable for a compulsory license for a digital
phonorecord delivery under this section shall be established de
novo and no precedential effect shall be given to the amount of
the royalty payable by a compulsory licensee for digital
phonorecord deliveries on or before December 31, 1997. The
Librarian of Congress shall also establish requirements by
which copyright owners may receive reasonable notice of the use
of their works under this section, and under which records of
such use shall be kept and made available by persons making
digital phonorecord deliveries.
``(E)(i) License agreements voluntarily negotiated at any
time between one or more copyright owners of nondramatic
musical works and one or more persons entitled to obtain a
compulsory license under subsection (a)(1) shall be given
effect in lieu of any determination by the Librarian of
Congress. Subject to clause (ii), the royalty rates determined
pursuant to subparagraph (C), (D) or (F) shall be given effect
in lieu of any contrary royalty rates specified in a contract
pursuant to which a recording artist who is the author of a
nondramatic musical work grants a license under that person's
exclusive rights in the musical work under sections 106(1) and
(3) or commits another person to grant a license in that
musical work under sections 106(1) and (3), to a person
desiring to fix in a tangible medium of expression a sound
recording embodying the musical work.
``(ii) The second sentence of clause (i) shall not apply
to--
``(I) a contract entered into on or before June 22,
1995, and not modified thereafter for the purpose of
reducing the royalty rates determined pursuant to
subparagraph (C), (D) or (F) or of increasing the
number of musical works within the scope of the
contract covered by the reduced rates, except if a
contract entered into on or before June 22, 1995, is
modified thereafter for the purpose of increasing the
number of musical works within the scope of the
contract, any contrary royalty rates specified in the
contract shall be given effect in lieu of royalty rates
determined pursuant to subparagraph (C), (D) or (F) for
the number of musical works within the scope of the
contract as of June 22, 1995; and
``(II) a contract entered into after the date that
the sound recording is fixed in a tangible medium of
expression substantially in a form intended for
commercial release, if at the time the contract is
entered into, the recording artist retains the right to
grant licenses as to the musical work under sections
106(1) and 106(3).
``(F) The procedures specified in subparagraphs (C) and (D)
shall be repeated and concluded, in accordance with regulations
that the Librarian of Congress shall prescribe, in each fifth
calendar year after 1997, except to the extent that different
years for the repeating and concluding of such proceedings may
be determined in accordance with subparagraphs (B) and (C).
``(G) Except as provided in section 1002(e) of this title,
a digital phonorecord delivery licensed under this paragraph
shall be accompanied by the information encoded in the sound
recording, if any, by or under the authority of the copyright
owner of that sound recording, that identifies the title of the
sound recording, the featured recording artist who performs on
the sound recording, and related information, including
information concerning the underlying musical work and its
writer.
``(H)(i) A digital phonorecord delivery of a sound
recording is actionable as an act of infringement under section
501, and is fully subject to the remedies provided by sections
502 through 506 and section 509, unless--
``(I) the digital phonorecord delivery has been
authorized by the copyright owner of the sound
recording; and
``(II) the owner of the copyright in the sound
recording or the entity making the digital phonorecord
delivery has obtained a compulsory license under this
section or has otherwise been authorized by the
copyright owner of the musical work to distribute or
authorize the distribution, by means of a digital
phonorecord delivery, of each musical work embodied in
the sound recording.
``(ii) Any cause of action under this subparagraph shall be
in addition to those available to the owner of the copyright in
the nondramatic musical work under subsection (c)(6) and
section 106(4) and the owner of the copyright in the sound
recording under section 106(6).
``(I) The liability of the copyright owner of a sound
recording for infringement of the copyright in a nondramatic
musical work embodied in the sound recording shall be
determined in accordance with applicable law, except that the
owner of a copyright in a sound recording shall not be liable
for a digital phonorecord delivery by a third party if the
owner of the copyright in the sound recording does not license
the distribution of a phonorecord of the nondramatic musical
work.
``(J) Nothing in section 1008 shall be construed to prevent
the exercise of the rights and remedies allowed by this
paragraph, paragraph (6), and chapter 5 in the event of a
digital phonorecord delivery, except that no action alleging
infringement of copyright may be brought under this title
against a manufacturer, importer or distributor of a digital
audio recording device, a digital audio recording medium, an
analog recording device, or an analog recording medium, or
against a consumer, based on the actions described in such
section.
``(K) Nothing in this section annuls or limits (i) the
exclusive right to publicly perform a sound recording or the
musical work embodied therein, including by means of a digital
transmission, under sections 106(4) and 106(6), (ii) except for
compulsory licensing under the conditions specified by this
section, the exclusive rights to reproduce and distribute the
sound recording and the musical work embodied therein under
sections 106(1) and 106(3), including by means of a digital
phonorecord delivery, or (iii) any other rights under any other
provision of section 106, or remedies available under this
title, as such rights or remedies exist either before or after
the date of enactment of the Digital Performance Right in Sound
Recordings Act of 1995.
``(L) The provisions of this section concerning digital
phonorecord deliveries shall not apply to any exempt
transmissions or retransmissions under section 114(d)(1). The
exemptions created in section 114(d)(1) do not expand or reduce
the rights of copyright owners under section 106(1) through (5)
with respect to such transmissions and retransmissions.''; and
(5) by adding after subsection (c) the following:
``(d) Definition.--As used in this section, the following term has
the following meaning: A `digital phonorecord delivery' is each
individual delivery of a phonorecord by digital transmission of a sound
recording which results in a specifically identifiable reproduction by
or for any transmission recipient of a phonorecord of that sound
recording, regardless of whether the digital transmission is also a
public performance of the sound recording or any nondramatic musical
work embodied therein. A digital phonorecord delivery does not result
from a real-time, noninteractive subscription transmission of a sound
recording where no reproduction of the sound recording or the musical
work embodied therein is made from the inception of the transmission
through to its receipt by the transmission recipient in order to make
the sound recording audible.''.
SEC. 5. CONFORMING AMENDMENTS.
(a) Definitions.--Section 101 of title 17, United States Code, is
amended by inserting after the definition of ``device'', ``machine'',
or ``process'' the following:
``A `digital transmission' is a transmission in whole or in
part in a digital or other non-analog format.''.
(b) Limitations on Exclusive Rights: Secondary Transmissions.--
Section 111(c)(1) of title 17, United States Code, is amended in the
first sentence by inserting ``and section 114(d)'' after ``of this
subsection''.
(c) Limitations on Exclusive Rights: Secondary Transmissions of
Superstations and Network Stations for Private Home Viewing.--
(1) Section 119(a)(1) of title 17, United States Code, is
amended in the first sentence by inserting ``and section
114(d)'' after ``of this subsection''.
(2) Section 119(a)(2)(A) of title 17, United States Code,
is amended in the first sentence by inserting ``and section
114(d)'' after ``of this subsection''.
(d) Copyright Arbitration Royalty Panels.--
(1) Section 801(b)(1) of title 17, United States Code, is
amended in the first and second sentences by striking ``115''
each place it appears and inserting ``114, 115,''.
(2) Section 802(c) of title 17, United States Code, is
amended in the third sentence by striking ``section 111, 116,
or 119,'' and inserting ``section 111, 114, 116, or 119, any
person entitled to a compulsory license under section 114(d),
any person entitled to a compulsory license under section
115,''.
(3) Section 802(g) of title 17, United States Code, is
amended in the third sentence by inserting ``114,'' after
``111,''.
(4) Section 802(h)(2) of title 17, United States Code, is
amended by inserting ``114,'' after ``111,''.
(5) Section 803(a)(1) of title 17, United States Code, is
amended in the first sentence by striking ``115'' and inserting
``114, 115'' and by striking ``and (4)'' and inserting ``(4)
and (5)''.
(6) Section 803(a)(3) of title 17, United States Code, is
amended by inserting before the period ``or as prescribed in
section 115(c)(3)(D)''.
(7) Section 803(a) of title 17, United States Code, is
amended by inserting after paragraph (4) the following new
paragraph:
``(5) With respect to proceedings under section 801(b)(1)
concerning the determination of reasonable terms and rates of
royalty payments as provided in section 114, the Librarian of
Congress shall proceed when and as provided by that section.''.
SEC. 6. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect 3
months after the date of enactment of this Act, except that the
provisions of sections 114(e) and 114(f) of title 17, United States
Code (as added by section 3 of this Act) shall take effect immediately
upon the date of enactment of this Act.
Passed the Senate August 8 (legislative day, July 10),
1995.
Attest:
Secretary.
S 227 ES----2
S 227 ES----3
104th CONGRESS
1st Session
S. 227
_______________________________________________________________________
AN ACT
To amend title 17, United States Code, to provide an exclusive right to
perform sound recordings publicly by means of digital transmissions,
and for other purposes.