[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4712 Introduced in House (IH)]







105th CONGRESS
  2d Session
                                H. R. 4712

To amend title 17, United States Code, to extend the term of copyright, 
  to provide for a music licensing exemption, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 7, 1998

    Mr. Sensenbrenner (for himself and Mr. McCollum) introduced the 
  following bill; which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To amend title 17, United States Code, to extend the term of copyright, 
  to provide for a music licensing exemption, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

                   TITLE I--COPYRIGHT TERM EXTENSION

SEC. 101. SHORT TITLE.

    This title may be referred to as the ``Sonny Bono Copyright Term 
Extension Act''.

SEC. 102. DURATION OF COPYRIGHT PROVISIONS.

    (a) Preemption With Respect to Other Laws.--Section 301(c) of title 
17, United States Code, is amended by striking ``February 15, 2047'' 
each place it appears and inserting ``February 15, 2067''.
    (b) Duration of Copyright: Works Created on or After January 1, 
1978.--Section 302 of title 17, United States Code, is amended--
            (1) in subsection (a) by striking ``fifty'' and inserting 
        ``70'';
            (2) in subsection (b) by striking ``fifty'' and inserting 
        ``70'';
            (3) in subsection (c) in the first sentence--
                    (A) by striking ``seventy-five'' and inserting 
                ``95''; and
                    (B) by striking ``one hundred'' and inserting 
                ``120''; and
            (4) in subsection (e) in the first sentence--
                    (A) by striking ``seventy-five'' and inserting 
                ``95'';
                    (B) by striking ``one hundred'' and inserting 
                ``120''; and
                    (C) by striking ``fifty'' each place it appears and 
                inserting ``70''.
    (c) Duration of Copyright: Works Created but Not Published or 
Copyrighted Before January 1, 1978.--Section 303 of title 17, United 
States Code, is amended in the second sentence by striking ``December 
31, 2027'' and inserting ``December 31, 2047''.
    (d) Duration of Copyright: Subsisting Copyrights.--
            (1) In general.--Section 304 of title 17, United States 
        Code, is amended--
                    (A) in subsection (a)--
                            (i) in paragraph (1)--
                                    (I) in subparagraph (B) by striking 
                                ``47'' and inserting ``67''; and
                                    (II) in subparagraph (C) by 
                                striking ``47'' and inserting ``67'';
                            (ii) in paragraph (2)--
                                    (I) in subparagraph (A) by striking 
                                ``47'' and inserting ``67''; and
                                    (II) in subparagraph (B) by 
                                striking ``47'' and inserting ``67''; 
                                and
                            (iii) in paragraph (3)--
                                    (I) in subparagraph (A)(i) by 
                                striking ``47'' and inserting ``67''; 
                                and
                                    (II) in subparagraph (B) by 
                                striking ``47'' and inserting ``67'';
                    (B) by amending subsection (b) to read as follows:
    ``(b) Copyrights in Their Renewal Term at the Time of the Effective 
Date of the Sonny Bono Copyright Term Extension Act.--Any copyright 
still in its renewal term at the time that the Sonny Bono Copyright 
Term Extension Act becomes effective shall have a copyright term of 95 
years from the date copyright was originally secured.'';
                    (C) in subsection (c)(4)(A) in the first sentence 
                by inserting ``or, in the case of a termination under 
                subsection (d), within the five-year period specified 
                by subsection (d)(2),'' after ``specified by clause (3) 
                of this subsection,''; and
                    (D) by adding at the end the following new 
                subsection:
    ``(d) Termination Rights Provided in Subsection (c) Which Have 
Expired On or Before the Effective Date of the Sonny Bono Copyright 
Term Extension Act.--In the case of any copyright other than a work 
made for hire, subsisting in its renewal term on the effective date of 
the Sonny Bono Copyright Term Extension Act for which the termination 
right provided in subsection (c) has expired by such date, where the 
author or owner of the termination right has not previously exercised 
such termination right, the exclusive or nonexclusive grant of a 
transfer or license of the renewal copyright or any right under it, 
executed before January 1, 1978, by any of the persons designated in 
subsection (a)(1)(C) of this section, other than by will, is subject to 
termination under the following conditions:
            ``(1) The conditions specified in subsection (c)(1), (2), 
        (4), (5), and (6) of this section apply to terminations of the 
        last 20 years of copyright term as provided by the amendments 
        made by the Sonny Bono Copyright Term Extension Act.
            ``(2) Termination of the grant may be effected at any time 
        during a period of 5 years beginning at the end of 75 years 
        from the date copyright was originally secured.''.
            (2) Copyright amendments act of 1992.--Section 102 of the 
        Copyright Amendments Act of 1992 (Public Law 102-307; 106 Stat. 
        266; 17 U.S.C. 304 note) is amended--
                    (A) in subsection (c)--
                            (i) by striking ``47'' and inserting 
                        ``67'';
                            (ii) by striking ``(as amended by 
                        subsection (a) of this section)''; and
                            (iii) by striking ``effective date of this 
                        section'' each place it appears and inserting 
                        ``effective date of the Sonny Bono Copyright 
                        Term Extension Act''; and
                    (B) in subsection (g)(2) in the second sentence by 
                inserting before the period the following: ``, except 
                each reference to forty-seven years in such provisions 
                shall be deemed to be 67 years''.

SEC. 103. TERMINATION OF TRANSFERS AND LICENSES COVERING EXTENDED 
              RENEWAL TERM.

    Sections 203(a)(2) and 304(c)(2) of title 17, United States Code, 
are each amended--
            (1) by striking ``by his widow or her widower and his or 
        her children or grandchildren''; and
            (2) by inserting after subparagraph (C) the following:
                    ``(D) In the event that the author's widow or 
                widower, children, and grandchildren are not living, 
                the author's executor, administrator, personal 
                representative, or trustee shall own the author's 
                entire termination interest.''.

SEC. 104. REPRODUCTION BY LIBRARIES AND ARCHIVES.

    Section 108 of title 17, United States Code, is amended--
            (1) by redesignating subsection (h) as subsection (i); and
            (2) by inserting after subsection (g) the following:
    ``(h)(1) For purposes of this section, during the last 20 years of 
any term of copyright of a published work, a library or archives, 
including a nonprofit educational institution that functions as such, 
may reproduce, distribute, display, or perform in facsimile or digital 
form a copy or phonorecord of such work, or portions thereof, for 
purposes of preservation, scholarship, or research, if such library or 
archives has first determined, on the basis of a reasonable 
investigation, that none of the conditions set forth in subparagraphs 
(A), (B), and (C) of paragraph (2) apply.
    ``(2) No reproduction, distribution, display, or performance is 
authorized under this subsection if--
            ``(A) the work is subject to normal commercial 
        exploitation;
            ``(B) a copy or phonorecord of the work can be obtained at 
        a reasonable price; or
            ``(C) the copyright owner or its agent provides notice 
        pursuant to regulations promulgated by the Register of 
        Copyrights that either of the conditions set forth in 
        subparagraphs (A) and (B) applies.
    ``(3) The exemption provided in this subsection does not apply to 
any subsequent uses by users other than such library or archives.''.

SEC. 105. VOLUNTARY NEGOTIATION REGARDING DIVISION OF ROYALTIES.

    It is the sense of the Congress that copyright owners of 
audiovisual works for which the term of copyright protection is 
extended by the amendments made by this title, and the screenwriters, 
directors, and performers of those audiovisual works, should negotiate 
in good faith in an effort to reach a voluntary agreement or voluntary 
agreements with respect to the establishment of a fund or other 
mechanism for the amount of remuneration to be divided among the 
parties for the exploitation of those audiovisual works.

SEC. 106. EFFECTIVE DATE.

    This title and the amendments made by this title shall take effect 
on the date of the enactment of this Act.

                  TITLE II--MUSIC LICENSING EXEMPTION

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Fairness In Music Licensing Act of 
1998''.

SEC. 202. EXEMPTIONS.

    (a) Exemptions for Certain Establishments.--Section 110 of title 
17, United States Code is amended--
            (1) in paragraph (5)--
                    (A) by striking ``(5)'' and inserting ``(5)(A) 
                except as provided in subparagraph (B),''; and
                    (B) by adding at the end the following:
                    ``(B) communication by an establishment of a 
                transmission or retransmission embodying a performance 
                or display of a nondramatic musical work intended to be 
                received by the general public, originated by a radio 
                or television broadcast station licensed as such by the 
                Federal Communications Commission, or, if an 
                audiovisual transmission, by a cable system or 
                satellite carrier, if--
                            ``(i) in the case of an establishment other 
                        than a food service or drinking establishment, 
                        either the establishment in which the 
                        communication occurs has less than 2000 gross 
                        square feet of space (excluding space used for 
                        customer parking and for no other purpose), or 
                        the establishment in which the communication 
                        occurs has 2000 or more gross square feet of 
                        space (excluding space used for customer 
                        parking and for no other purpose) and--
                                    ``(I) if the performance is by 
                                audio means only, the performance is 
                                communicated by means of a total of not 
                                more than 6 loudspeakers, of which not 
                                more than 4 loudspeakers are located in 
                                any 1 room or adjoining outdoor space; 
                                or
                                    ``(II) if the performance or 
                                display is by audiovisual means, any 
                                visual portion of the performance or 
                                display is communicated by means of a 
                                total of not more than 4 audiovisual 
                                devices, of which not more than one 
                                audiovisual device is located in any 1 
                                room, and no such audiovisual device 
                                has a diagonal screen size greater than 
                                55 inches, and any audio portion of the 
                                performance or display is communicated 
                                by means of a total of not more than 6 
                                loudspeakers, of which not more than 4 
                                loudspeakers are located in any 1 room 
                                or adjoining outdoor space;
                            ``(ii) in the case of a food service or 
                        drinking establishment, either the 
                        establishment in which the communication occurs 
                        has less than 3750 gross square feet of space 
                        (excluding space used for customer parking and 
                        for no other purpose), or the establishment in 
                        which the communication occurs has 3750 gross 
                        square feet of space or more (excluding space 
                        used for customer parking and for no other 
                        purpose) and--
                                    ``(I) if the performance is by 
                                audio means only, the performance is 
                                communicated by means of a total of not 
                                more than 6 loudspeakers, of which not 
                                more than 4 loudspeakers are located in 
                                any 1 room or adjoining outdoor space; 
                                or
                                    ``(II) if the performance or 
                                display is by audiovisual means, any 
                                visual portion of the performance or 
                                display is communicated by means of a 
                                total of not more than 4 audiovisual 
                                devices, of which not more than one 
                                audiovisual device is located in any 1 
                                room, and no such audiovisual device 
                                has a diagonal screen size greater than 
                                55 inches, and any audio portion of the 
                                performance or display is communicated 
                                by means of a total of not more than 6 
                                loudspeakers, of which not more than 4 
                                loudspeakers are located in any 1 room 
                                or adjoining outdoor space;
                            ``(iii) no direct charge is made to see or 
                        hear the transmission or retransmission;
                            ``(iv) the transmission or retransmission 
                        is not further transmitted beyond the 
                        establishment where it is received; and
                            ``(v) the transmission or retransmission is 
                        licensed by the copyright owner of the work so 
                        publicly performed or displayed;''; and
            (2) by adding after paragraph (10) the following:
``The exemptions provided under paragraph (5) shall not be taken into 
account in any administrative, judicial, or other governmental 
proceeding to set or adjust the royalties payable to copyright owners 
for the public performance or display of their works. Royalties payable 
to copyright owners for any public performance or display of their 
works other than such performances or displays as are exempted under 
paragraph (5) shall not be diminished in any respect as a result of 
such exemption''.
    (b) Exemption Relating to Promotion.--Section 110(7) of title 17, 
United States Code, is amended by inserting ``or of the audiovisual or 
other devices utilized in such performance,'' after ``phonorecords of 
the work,''.

SEC. 203. LICENSING BY PERFORMING RIGHTS SOCIETIES.

    (a) In General.--Chapter 5 of title 17, United States Code, is 
amended by adding at the end the following:
``Sec. 512. Determination of reasonable license fees for individual 
              proprietors
    ``In the case of any performing rights society subject to a consent 
decree which provides for the determination of reasonable license rates 
or fees to be charged by the performing rights society, notwithstanding 
the provisions of that consent decree, an individual proprietor who 
owns or operates fewer than 7 non-publicly traded establishments in 
which nondramatic musical works are performed publicly and who claims 
that any license agreement offered by that performing rights society is 
unreasonable in its license rate or fee as to that individual 
proprietor, shall be entitled to determination of a reasonable license 
rate or fee as follows:
            ``(1) The individual proprietor may commence such 
        proceeding for determination of a reasonable license rate or 
        fee by filing an application in the applicable district court 
        under paragraph (2) that a rate disagreement exists and by 
        serving a copy of the application on the performing rights 
        society. Such proceeding shall commence in the applicable 
        district court within 90 days after the service of such copy, 
        except that such 90-day requirement shall be subject to the 
        administrative requirements of the court.
            ``(2) The proceeding under paragraph (1) shall be held, at 
        the individual proprietor's election, in the judicial district 
        of the district court with jurisdiction over the applicable 
        consent decree or in that place of holding court of a district 
        court that is the seat of the Federal circuit (other than the 
        Court of Appeals for the Federal Circuit) in which the 
        proprietor's establishment is located.
            ``(3) Such proceeding shall be held before the judge of the 
        court with jurisdiction over the consent decree governing the 
        performing rights society. At the discretion of the court, the 
        proceeding shall be held before a special master or magistrate 
        judge appointed by such judge. Should that consent decree 
        provide for the appointment of an advisor or advisors to the 
        court for any purpose, any such advisor shall be the special 
        master so named by the court.
            ``(4) In any such proceeding, the industry rate shall be 
        presumed to have been reasonable at the time it was agreed to 
        or determined by the court. Such presumption shall in no way 
        affect a determination of whether the rate is being correctly 
        applied to the individual proprietor.
            ``(5) Pending the completion of such proceeding, the 
        individual proprietor shall have the right to perform publicly 
        the copyrighted musical compositions in the repertoire of the 
        performing rights society by paying an interim license rate or 
        fee into an interest bearing escrow account with the clerk of 
        the court, subject to retroactive adjustment when a final rate 
        or fee has been determined, in an amount equal to the industry 
        rate, or, in the absence of an industry rate, the amount of the 
        most recent license rate or fee agreed to by the parties.
            ``(6) Any decision rendered in such proceeding by a special 
        master or magistrate judge named under paragraph (3) shall be 
        reviewed by the judge of the court with jurisdiction over the 
        consent decree governing the performing rights society. Such 
        proceeding, including such review, shall be concluded within 6 
        months after its commencement.
            ``(7) Any such final determination shall be binding only as 
        to the individual proprietor commencing the proceeding, and 
        shall not be applicable to any other proprietor or any other 
        performing rights society, and the performing rights society 
        shall be relieved of any obligation of nondiscrimination among 
        similarly situated music users that may be imposed by the 
        consent decree governing its operations.
            ``(8) An individual proprietor may not bring more than one 
        proceeding provided for in this section for the determination 
        of a reasonable license rate or fee under any one license 
        agreement with respect to any one performing rights society.
            ``(9) For purposes of this section, the term `industry 
        rate' means the license fee a performing rights society has 
        agreed to with, or which has been determined by the court for, 
        a significant segment of the music user industry to which the 
        individual proprietor belongs.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 5 of title 17, United States Code, is amended by adding after 
the item relating to section 511 the following:

``512. Determination of reasonable license fees for individual 
                            proprietors.''.

SEC. 204. PENALTIES.

    Section 504 of title 17, United States Code, is amended by adding 
at the end the following:
    ``(d) Additional Damages in Certain Cases.--In any case in which 
the court finds that a defendant proprietor of an establishment who 
claims as a defense that its activities were exempt under section 
110(5) did not have reasonable grounds to believe that its use of a 
copyrighted work was exempt under such section, the plaintiff shall be 
entitled to, in addition to any award of damages under this section, an 
additional award of two times the amount of the license fee that the 
proprietor of the establishment concerned should have paid the 
plaintiff for such use during the preceding period of up to 3 years.''.

SEC. 205. DEFINITIONS.

    Section 101 of title 17, United States Code, is amended--
            (1) by inserting after the definition of ``display'' the 
        following:
            ``An `establishment' is a store, shop, or any similar place 
        of business open to the general public for the primary purpose 
of selling goods or services in which the majority of the gross square 
feet of space that is nonresidential is used for that purpose, and in 
which nondramatic musical works are performed publicly.
            ``A `food service or drinking establishment' is a 
        restaurant, inn, bar, tavern, or any other similar place of 
        business in which the public or patrons assemble for the 
        primary purpose of being served food or drink, in which the 
        majority of the gross square feet of space that is 
        nonresidential is used for that purpose, and in which 
        nondramatic musical works are performed publicly.'';
            (2) by inserting after the definition of ``fixed'' the 
        following:
            ``The `gross square feet of space' of an establishment 
        means the entire interior space of that establishment, and any 
        adjoining outdoor space used to serve patrons, whether on a 
        seasonal basis or otherwise.'';
            (3) by inserting after the definition of ``perform'' the 
        following:
            ``A `performing rights society' is an association, 
        corporation, or other entity that licenses the public 
        performance of nondramatic musical works on behalf of copyright 
        owners of such works, such as the American Society of 
        Composers, Authors and Publishers (ASCAP), Broadcast Music, 
        Inc. (BMI), and SESAC, Inc.''; and
            (4) by inserting after the definition of ``pictorial, 
        graphic and sculptural works'' the following:
            ``A `proprietor' is an individual, corporation, 
        partnership, or other entity, as the case may be, that owns an 
        establishment or a food service or drinking establisment, 
        except that no owner or operator of a radio or television 
        station licensed by the Federal Communications Commission, 
        cable system or satellite carrier, cable or satellite carrier 
        service or programmer, provider of online services or network 
        access or the operator of facilities therefor, 
        telecommunications company, or any other such audio or 
        audiovisual service or programmer now known or as may be 
        developed in the future, commercial subscription music service, 
        or owner or operator of any other transmission service, shall 
        under any circumstances be deemed to be a proprietor.''.

SEC. 206. CONSTRUCTION OF TITLE.

    Except as otherwise provided in this title, nothing in this title 
shall be construed to relieve any performing rights society of any 
obligation under any State or local statute, ordinance, or law, or 
consent decree or other court order governing its operation, as such 
statute, ordinance, law, decree, or order is in effect on the date of 
the enactment of this Act, as it may be amended after such date, or as 
it may be issued or agreed to after such date.

SEC. 207. EFFECTIVE DATE.

    This title and the amendments made by this title shall take effect 
90 days after the date of the enactment of this Act.
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