[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 505 Enrolled Bill (ENR)]

        S.505

                       One Hundred Fifth Congress

                                 of the

                        United States of America


                          AT THE SECOND SESSION

          Begun and held at the City of Washington on Tuesday,
the twenty-seventh day of January, one thousand nine hundred and ninety-
                                  eight


                                 An Act


 
To amend the provisions of title 17, United States Code, with respect to 
           the duration of copyright, 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 subsections (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 FOR FOOD SERVICE OR DRINKING 
                             ESTABLISHMENTS

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 2,000 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 2,000 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 1 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 3,750 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 3,750 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 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 establishment, 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.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.