[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 227 Introduced in Senate (IS)]
1st Session
S. 227
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 13 (legislative day, January 10), 1995
Mr. Hatch (for himself and Mrs. Feinstein) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
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
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 replacing
it with ``(3) and (6)'';
(2) in subsection (b) by deleting from the first sentence
``phonorecords, or of copies of motion pictures and other
audiovisual works,'' and inserting ``phonorecords or copies'';
(3) by striking subsection (d) and replacing it with the
following new subsection (d):
``(d) Limitations on Exclusive Right.--Notwithstanding the
provisions of section 106(6)--
``(1) Exempt transmissions.--The performance of a sound
recording publicly by means of a digital transmission, other
than as part of an interactive service, is not an infringement
of section 106(6) if the performance is part of--
``(A) a nonsubscription transmission, such as a
nonsubscription broadcast transmission;
``(B) a prior or simultaneous transmission
incidental to a nonsubscription transmission, such as a
feed received by and then retransmitted by the
nonsubscription transmitter: Provided, That such
incidental transmissions do not include any
subscription transmission directly for reception by
members of the public;
``(C) a retransmission of a nonsubscription
broadcast transmission: Provided, That, in the case of
a retransmission of a radio station's broadcast
transmission, the transmission is not willfully or
repeatedly retransmitted more than a radius of one
hundred and fifty miles from the site of the radio
broadcast transmitter;
``(D) a further transmission by a business,
confined to its premises or the immediately surrounding
vicinity, of a transmission described in paragraphs (A)
or (B) of this subsection (d)(1); or
``(E) a retransmission otherwise subject to
liability, if such transmission is simultaneous with
the primary transmission and authorized by the primary
transmitter, and the primary transmitter has been
licensed to publicly perform the sound recording.
``(2) Subscription transmissions.--In the case of a
subscription transmission, the performance of a sound recording
publicly by means of a digital 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; and
``(B) the transmission does not exceed the sound
recording performance complement.
``(3) Rights not otherwise limited.--
``(A) Except as expressly provided herein, this
section does not limit or impair the exclusive right to
perform a sound recording publicly by means of a
digital 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 transmission, under section 106(4),
``(ii) the exclusive rights to reproduce
and distribute a sound recording or the musical
work embodied therein under sections 106(1) and
106(3), including by means of a digital
phonorecord delivery as defined in section 115,
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 this Act.''; and
``(4) by adding after subsection (d) the following:
``(e) Authority for Negotiations.--Any copyright owners of sound
recordings and any entities performing sound recordings affected by
this section may negotiate and agree upon the terms and rates of
royalty payments for the performance of such sound recordings 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.
``(f) Licenses for Subscription Transmissions.--
``(1) No later than thirty days after the enactment of this
legislation, 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 this
legislation and ending on December 31, 2000. Such terms and
rates shall distinguish among the different types of digital
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), 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 establishing such
rates and terms the copyright arbitration royalty panel may
consider the rates for comparable types of digital transmission
services and comparable circumstances under voluntary license
agreements negotiated as provided in paragraph (1). The parties
to the proceeding shall bear the entire cost thereof in such
manner and proportion as the arbitration panels shall direct.
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 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 the Librarian of
Congress.
``(4) the procedures specified in paragraphs (1) and (2)
shall be repeated and concluded, in accordance with regulations
that the Librarian of Congress shall prescribe--
``(A) within a six-month period each time that 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 transmission service on which sound recordings
are performed is or is about to become operational, and
``(B) between June 30 and December 31, 2000 and at
five-year intervals thereafter.
``(5) Any person who wishes to perform a sound recording
publicly by means of a subscription transmission under this
subsection (f) may do so without infringing the exclusive right
of the copyright owner of the sound recording by complying with
such notice requirements as the Register of Copyrights shall
prescribe by regulation and by paying royalty fees in
accordance with this subsection, or, if such royalty fees have
not been set, by agreeing to pay such royalty fees as shall be
determined in accordance with this subsection, and 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.--In
the case of a subscription transmission performance of a sound
recording licensed under subsection (f) of this section, 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 transmission
shall allocate to recording artists in the following manner its
receipts from the licensing of subscription transmission performances
of the sound recording in accordance with subsection (f) of this
section:
``(1) 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.
``(2) 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.
``(3) 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.--Where the copyright owner of a
sound recording owns a controlling interest in, or otherwise possesses
the power directly or indirectly to exercise a controlling influence
over the management or policies of, an entity engaging in digital
transmissions covered by section 106(6) and licenses to such entity the
right to publicly perform a sound recording by means of a digital
transmission, the copyright owner shall make the licensed sound
recording available under section 106(6) on similar terms and
conditions to all other similarly-situated entities offering similar
types of digital transmission services, except that such copyright
owner may--
``(1) impose reasonable requirements for creditworthiness;
and
``(2) establish different prices, terms, and conditions to
take into account the types of services offered, the duration
of the license, the geographic region, the numbers of
subscribers served, and any other relevant factors.
``(i) No Effect on Royalties for Underlying Works.--License fees
payable for the public performance of sound recordings under clause (6)
of section 106 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.
``(j) Definitions.--As used in this section, the following terms
have the following meanings:
``(1) A `broadcast transmission' is a transmission made by
a broadcast station licensed as such by the Federal
Communications Commission.
``(2) 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.
``(3) A `nonsubscription transmission' is any transmission
that is not a subscription transmission.
``(4) The `sound recording performance complement' is the
transmission of no more than--
``(A) two selections each day of sound recordings
embodied in any one phonorecord distributed in the
United States for ultimate sale to consumers; or
``(B) three selections each day of sound recordings
of performances--
``(i) by the same featured recording
artist, or
``(ii) embodied in any set of phonorecords
or compilation of sound recordings marketed
together as a unit for ultimate sale to
consumers.
``(5) 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.''.
SEC. 4. SCOPE OF EXCLUSIVE RIGHTS IN NONDRAMATIC MUSICAL WORKS:
COMPULSORY LICENSE FOR MAKING AND DISTRIBUTING
PHONORECORDS.
Section 115 of title 17, United State Code, is amended--
(1) by inserting before the period at the end of the second
sentence in subsection (a)(1) the words ``including by means of
a digital phonorecord delivery'';
(2) by inserting in the second sentence of subsection
(c)(2), after the words ``For this purpose,'' the words ``and
other than as provided in clause (3),'';
(3) by redesignating clauses (3), (4) and (5) of subsection
(c) as clauses (4), (5) and (6), respectively, and by inserting
the following new clause:
``(3)(A) A compulsory license under this section includes
the right of the maker of a phonorecord of a nondramatic
musical work under subsection (a)(1) to distribute or authorize
distribution of the sound recording of such phonorecord 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, the royalty
payable by the compulsory licensee shall be the royalty
prescribed under clause (2) and chapter 8 of this title.
``(B) Independent of any right of public performance under
section 106(4), the copyright owner of a nondramatic musical
work embodied in a sound recording has the right to receive
royalty payments at the rates prescribed under this subsection
when the digital transmission of that sound recording
constitutes a digital phonorecord delivery. Unless authorized
by said copyright owner of the nondramatic musical work or by
any person who has obtained a compulsory license under this
section, such a digital transmission, by whomever made, shall
be actionable by the copyright owner in the nondramatic musical
work as an act of infringement: Provided, however, That no such
cause of action may be brought against a copyright owner of a
sound recording unless it authorized the digital phonorecord
delivery. Any such cause of action shall be in addition to
those available to the copyright owner of the musical work
under section 106(4) and the copyright owner of the sound
recording with respect to digital phonorecord deliveries and
under section 106(6).
``(C) Nothing in section 1008 shall be construed to prevent
the exercise of the rights and remedies allowed by clauses (3)
and (7) 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.
``(D) Nothing in this section annuls or limits in any way
(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 the 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 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 this Act.'';
and
(4) by adding after subsection (c) the following:
``(d) Definitions.--As used in this section, the following term has
the following meaning: A `digital phonorecord delivery' is each
individual digital transmission of a sound recording which results in a
specifically identified 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.''.
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 striking ``The'' and inserting ``Except in the case
of a performance of a sound recording in the course of a digital
transmission, the''.
(c) Limitations on Exclusive Rights: Secondary Transmissions of
Superstations and Network Stations for Private Home Viewing.--Section
119(a)(1) of title 17, United States Code, is amended by striking
``Subject to'' and inserting ``Except in the case of a performance of a
sound recording in the course of a digital transmission, and subject
to''.
(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 inserting ``114''
before ``115''.
(2) Section 802(c) of title 17, United States Code, is
amended in the third sentence by deleting ``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 after ``111'' ``,
114''.
(4) Section 802(h)(2) of title 17, United States Code, is
amended by inserting after ``111'' ``, 114''.
SEC. 6. EFFECTIVE DATE.
This Act shall become effective three months after the date of
enactment, except that the provisions of sections 114(e) and 114(f)
shall take effect immediately upon enactment.
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