[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1417 Engrossed in House (EH)]
2d Session
H. R. 1417
_______________________________________________________________________
AN ACT
To amend title 17, United States Code, to replace copyright arbitration
royalty panels with Copyright Royalty Judges, and for other purposes.
108th CONGRESS
2d Session
H. R. 1417
_______________________________________________________________________
AN ACT
To amend title 17, United States Code, to replace copyright arbitration
royalty panels with Copyright Royalty Judges, 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 ``Copyright Royalty and Distribution
Reform Act of 2004''.
SEC. 2. REFERENCE.
Except as otherwise expressly provided, whenever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to a section or other provision of title 17, United States
Code.
SEC. 3. COPYRIGHT ROYALTY JUDGE AND STAFF.
(a) In General.--Chapter 8 is amended to read as follows:
``CHAPTER 8--PROCEEDINGS BY COPYRIGHT ROYALTY JUDGES
``Sec.
``801. Copyright Royalty Judges; appointment and functions.
``802. Copyright Royalty Judgeships; staff.
``803. Proceedings of Copyright Royalty Judges.
``804. Institution of proceedings.
``805. General rule for voluntarily negotiated agreements.
``Sec. 801. Copyright Royalty Judges; appointment and functions
``(a) Appointment.--The Librarian of Congress shall appoint 3 full-
time Copyright Royalty Judges, and shall appoint one of the three as
the Chief Copyright Royalty Judge. In making such appointments, the
Librarian shall consult with the Register of Copyrights.
``(b) Functions.--Subject to the provisions of this chapter, the
functions of the Copyright Royalty Judges shall be as follows:
``(1) To make determinations and adjustments of reasonable
terms and rates of royalty payments as provided in sections
112(e), 114, 115, 116, 118, 119 and 1004. The rates applicable
under sections 114(f)(1)(B), 115, and 116 shall be calculated
to achieve the following objectives:
``(A) To maximize the availability of creative
works to the public.
``(B) To afford the copyright owner a fair return
for his or her creative work and the copyright user a
fair income under existing economic conditions.
``(C) To reflect the relative roles of the
copyright owner and the copyright user in the product
made available to the public with respect to relative
creative contribution, technological contribution,
capital investment, cost, risk, and contribution to the
opening of new markets for creative expression and
media for their communication.
``(D) To minimize any disruptive impact on the
structure of the industries involved and on generally
prevailing industry practices.
``(2) To make determinations concerning the adjustment of
the copyright royalty rates under section 111 solely in
accordance with the following provisions:
``(A) The rates established by section 111(d)(1)(B)
may be adjusted to reflect--
``(i) national monetary inflation or
deflation; or
``(ii) changes in the average rates charged
cable subscribers for the basic service of
providing secondary transmissions to maintain
the real constant dollar level of the royalty
fee per subscriber which existed as of the date
of October 19, 1976,
except that--
``(I) if the average rates charged cable
system subscribers for the basic service of
providing secondary transmissions are changed
so that the average rates exceed national
monetary inflation, no change in the rates
established by section 111(d)(1)(B) shall be
permitted; and
``(II) no increase in the royalty fee shall
be permitted based on any reduction in the
average number of distant signal equivalents
per subscriber.
The Copyright Royalty Judges may consider all factors
relating to the maintenance of such level of payments,
including, as an extenuating factor, whether the
industry has been restrained by subscriber rate
regulating authorities from increasing the rates for
the basic service of providing secondary transmissions.
``(B) In the event that the rules and regulations
of the Federal Communications Commission are amended at
any time after April 8, 1976, to permit the carriage by
cable systems of additional television broadcast
signals beyond the local service area of the primary
transmitters of such signals, the royalty rates
established by section 111(d)(1)(B) may be adjusted to
insure that the rates for the additional distant signal
equivalents resulting from such carriage are reasonable
in the light of the changes effected by the amendment
to such rules and regulations. In determining the
reasonableness of rates proposed following an amendment
of Federal Communications Commission rules and
regulations, the Copyright Royalty Judges shall
consider, among other factors, the economic impact on
copyright owners and users; except that no adjustment
in royalty rates shall be made under this subparagraph
with respect to any distant signal equivalent or
fraction thereof represented by--
``(i) carriage of any signal permitted
under the rules and regulations of the Federal
Communications Commission in effect on April
15, 1976, or the carriage of a signal of the
same type (that is, independent, network, or
noncommercial educational) substituted for such
permitted signal; or
``(ii) a television broadcast signal first
carried after April 15, 1976, pursuant to an
individual waiver of the rules and regulations
of the Federal Communications Commission, as
such rules and regulations were in effect on
April 15, 1976.
``(C) In the event of any change in the rules and
regulations of the Federal Communications Commission
with respect to syndicated and sports program
exclusivity after April 15, 1976, the rates established
by section 111(d)(1)(B) may be adjusted to assure that
such rates are reasonable in light of the changes to
such rules and regulations, but any such adjustment
shall apply only to the affected television broadcast
signals carried on those systems affected by the
change.
``(D) The gross receipts limitations established by
section 111(d)(1)(C) and (D) shall be adjusted to
reflect national monetary inflation or deflation or
changes in the average rates charged cable system
subscribers for the basic service of providing
secondary transmissions to maintain the real constant
dollar value of the exemption provided by such section,
and the royalty rate specified therein shall not be
subject to adjustment.
``(3)(A) To authorize the distribution, under sections 111,
119, and 1007, of those royalty fees collected under sections
111, 119, and 1005, as the case may be, to the extent that the
Copyright Royalty Judges have found that the distribution of
such fees is not subject to controversy.
``(B) In cases where the Copyright Royalty Judges determine
that controversy exists, the Copyright Royalty Judges shall
determine the distribution of such fees, including partial
distributions, in accordance with section 111, 119, or 1007, as
the case may be.
``(C) the Copyright Royalty Judges shall make a partial
distribution of such fees during the pendency of the proceeding
under subparagraph (B) if all participants under section
803(b)(2) in the proceeding that are entitled to receive those
fees that are to be partially distributed--
``(i) agree to such partial distribution;
``(ii) sign an agreement obligating them to return
any excess amounts to the extent necessary to comply
with the final determination on the distribution of the
fees made under subparagraph (B); and
``(iii) file the agreement with the Copyright
Royalty Judges.
``(D) The Copyright Royalty Judges and any other officer or
employee acting in good faith in distributing funds under
subparagraph (C) shall not be held liable for the payment of
any excess fees under subparagraph (C). The Copyright Royalty
Judges shall, at the time the final determination is made,
calculate any such excess amounts.
``(4) To accept or reject royalty claims filed under
section 111, 119, and 1007, on the basis of timeliness or the
failure to establish the basis for a claim.
``(5) To accept or reject rate adjustment petitions as
provided in section 804 and petitions to participate as
provided in section 803(b)(1) and (2).
``(6) To determine the status of a digital audio recording
device or a digital audio interface device under sections 1002
and 1003, as provided in section 1010.
``(7)(A) To adopt as the basis for statutory terms and
rates or as a basis for the distribution of statutory royalty
payments, an agreement concerning such matters reached among
some or all of the participants in a proceeding at any time
during the proceeding, except that--
``(i) the Copyright Royalty Judges shall provide to
the other participants in the proceeding under section
803(b)(2) that would be bound by the terms, rates,
distribution, or other determination set by the
agreement an opportunity to comment on the agreement
and object to its adoption as the basis for statutory
terms and rates or as a basis for the distribution of
statutory royalty payments, as the case may be; and
``(ii) the Copyright Royalty Judges may decline to
adopt the agreement as the basis for statutory terms
and rates or as the basis for the distribution of
statutory royalty payments, as the case may be, if any
other participant described in subparagraph (A) objects
to the agreement and the Copyright Royalty Judges find,
based on the record before them, that the agreement is
not likely to meet the statutory standard for setting
the terms and rates, or for distributing the royalty
payments, as the case may be.
``(B) License agreements voluntarily negotiated pursuant to
section 112(e)(5), 114(f)(3), 115(c)(3)(E)(i), 116(c), or
118(b)(2) that do not result in statutory terms and rates shall
not be subject to clauses (i) and (ii) of subparagraph (A).
``(c) Rulings.--The Copyright Royalty Judges may make any necessary
procedural or evidentiary rulings in any proceeding under this chapter
and may, before commencing a proceeding under this chapter, make any
such rulings that would apply to the proceedings conducted by the
Copyright Royalty Judges. The Copyright Royalty Judges may consult with
the Register of Copyrights in making any rulings under section
802(f)(1).
``(d) Administrative Support.--The Librarian of Congress shall
provide the Copyright Royalty Judges with the necessary administrative
services related to proceedings under this chapter.
``(e) Location in Library of Congress.--The offices of the
Copyright Royalty Judges and staff shall be in the Library of Congress.
``Sec. 802. Copyright Royalty Judgeships; staff
``(a) Qualifications of Copyright Royalty Judges.--Each Copyright
Royalty Judge shall be an attorney who has at least 7 years of legal
experience. The Chief Copyright Royalty Judge shall have at least 5
years of experience in adjudications, arbitrations, or court trials. Of
the other two Copyright Royalty Judges, one shall have significant
knowledge of copyright law, and the other shall have significant
knowledge of economics. An individual may serve as a Copyright Royalty
Judge only if the individual is free of any financial conflict of
interest under subsection (h). In this subsection, `adjudication' has
the meaning given that term in section 551 of title 5, but does not
include mediation.
``(b) Staff.--The Chief Copyright Royalty Judge shall hire 3 full-
time staff members to assist the Copyright Royalty Judges in performing
their functions.
``(c) Terms.--The terms of the Copyright Royalty Judges shall each
be 6 years, except of the individuals first appointed, the Chief
Copyright Royalty Judge shall be appointed to a term of 6 years, and of
the remaining Copyright Royalty Judges, one shall be appointed to a
term of 2 years, and the other shall be appointed to a term of 4 years.
An individual serving as a Copyright Royalty Judge may be reappointed
to subsequent terms. The term of a Copyright Royalty Judge shall begin
when the term of the predecessor of that Copyright Royalty Judge ends.
When the term of office of a Copyright Royalty Judge ends, the
individual serving that term may continue to serve until a successor is
selected.
``(d) Vacancies or Incapacity.--
``(1) Vacancies.--If a vacancy should occur in the position
of Copyright Royalty Judge, the Librarian of Congress shall act
expeditiously to fill the vacancy, and may appoint an interim
Copyright Royalty Judge to serve until another Copyright
Royalty Judge is appointed under this section. An individual
appointed to fill the vacancy occurring before the expiration
of the term for which the predecessor of that individual was
appointed shall be appointed for the remainder of that term.
``(2) Incapacity.--In the case in which a Copyright Royalty
Judge is temporarily unable to perform his or her duties, the
Librarian of Congress may appoint an interim Copyright Royalty
Judge to perform such duties during the period of such
incapacity.
``(e) Compensation.--
``(1) Judges.--The Chief Copyright Royalty Judge shall
receive compensation at the rate of basic pay payable for level
AL-1 for administrative law judges pursuant to section 5372(b)
of title 5, and each of the other two Copyright Royalty Judges
shall receive compensation at the rate of basic pay payable for
level AL-2 for administrative law judges pursuant to such
section. The compensation of the Copyright Royalty Judges shall
not be subject to any regulations adopted by the Office of
Personnel Management pursuant to its authority under section
5376(b)(1) of title 5.
``(2) Staff members.--Of the staff members appointed under
subsection (b)--
``(A) the rate of pay of one staff member shall be
not more than the basic rate of pay payable for GS-15
of the General Schedule;
``(B) the rate of pay of one staff member shall be
not less than the basic rate of pay payable for GS-13
of the General Schedule and not more than the basic
rate of pay payable for GS-14 of such Schedule; and
``(C) the rate of pay for the third staff member
shall be not less than the basic rate of pay payable
for GS-8 of the General Schedule and not more than the
basic rate of pay payable for GS-11 of such Schedule.
``(f) Independence of Copyright Royalty Judge.--
``(1) In making determinations.--
``(A) In general.--Subject to subparagraph (B), the
Copyright Royalty Judges shall have full independence
in making determinations concerning adjustments and
determinations of copyright royalty rates and terms,
the distribution of copyright royalties, the acceptance
or rejection of royalty claims, rate adjustment
petitions, and petitions to participate, and in issuing
other rulings under this title, except that the
Copyright Royalty Judges may consult with the Register
of Copyrights on any matter other than a question of
fact. Any such consultations between the Copyright
Royalty Judges and the Register of Copyright on any
question of law shall be in writing or on the record.
``(B) Novel questions.--(i) Notwithstanding the
provisions of subparagraph (A), in any case in which
the Copyright Royalty Judges in a proceeding under this
title are presented with a novel question of law
concerning an interpretation of those provisions of
this title that are the subject of the proceeding, the
Copyright Royalty Judges shall request the Register of
Copyrights, in writing, to submit a written opinion on
the resolution of such novel question. The Register
shall submit and make public that opinion within such
time period as the Copyright Royalty Judges may
prescribe. Any consultations under this subparagraph
between the Copyright Royalty Judges and the Register
of Copyrights shall be in writing or on the record. The
opinion of the Register shall not be binding on the
Copyright Royalty Judges, but the Copyright Royalty
Judges shall take the opinion of the Register into
account in making the judges' determination on the
question concerned.
``(ii) In clause (i), a `novel question of law' is
a question of law that has not been determined in prior
decisions, determinations, and rulings described in
section 803(a).
``(2) Performance appraisals.--
``(A) In general.--Notwithstanding any other
provision of law or any regulation of the Library of
Congress, and subject to subparagraph (B), the
Copyright Royalty Judges shall not receive performance
appraisals.
``(B) Relating to sanction or removal.--To the
extent that the Librarian of Congress adopts
regulations under subsection (h) relating to the
sanction or removal of a Copyright Royalty Judge and
such regulations require documentation to establish the
cause of such sanction or removal, the Copyright
Royalty Judge may receive an appraisal related
specifically to the cause of the sanction or removal.
``(g) Inconsistent Duties Barred.--No Copyright Royalty Judge may
undertake duties inconsistent with his or her duties and
responsibilities as Copyright Royalty Judge.
``(h) Standards of Conduct.--The Librarian of Congress shall adopt
regulations regarding the standards of conduct, including financial
conflict of interest and restrictions against ex parte communications,
which shall govern the Copyright Royalty Judges and the proceedings
under this chapter.
``(i) Removal or Sanction.--The Librarian of Congress may sanction
or remove a Copyright Royalty Judge for violation of the standards of
conduct adopted under subsection (h), misconduct, neglect of duty, or
any disqualifying physical or mental disability. Any such sanction or
removal may be made only after notice and opportunity for a hearing,
but the Librarian of Congress may suspend the Copyright Royalty Judge
during the pendency of such hearing. The Librarian shall appoint an
interim Copyright Royalty Judge during the period of any such
suspension.
``Sec. 803. Proceedings of Copyright Royalty Judges
``(a) Proceedings.--
``(1) In general.--The Copyright Royalty Judges shall act
in accordance with this title, and to the extent not
inconsistent with this title, in accordance with subchapter II
of chapter 5 of title 5, in carrying out the purposes set forth
in section 801. The Copyright Royalty Judges shall act in
accordance with regulations issued by the Copyright Royalty
Judges and on the basis of a fully documented written record,
prior decisions of the Copyright Royalty Tribunal, prior
copyright arbitration royalty panel determinations, rulings by
the Librarian of Congress before the effective date of the
Copyright Royalty and Distribution Reform Act of 2004, prior
determinations of Copyright Royalty Judges under this chapter,
and decisions of the court in appeals under this chapter
before, on, or after such effective date. Any participant in a
proceeding under subsection (b)(2) may submit relevant
information and proposals to the Copyright Royalty Judges.
``(2) Judges acting as panel and individually.--The
Copyright Royalty Judges shall preside over hearings in
proceedings under this chapter en banc. The Chief Copyright
Royalty Judge may designate a Copyright Royalty Judge to
preside individually over such collateral and administrative
proceedings, and over such proceedings under paragraphs (1)
through (5) of subsection (b), as the Chief Judge considers
appropriate.
``(3) Determinations.--Final determinations of the
Copyright Royalty Judges in proceedings under this chapter
shall be made by majority vote. A Copyright Royalty Judge
dissenting from the majority on any determination under this
chapter may issue his or her dissenting opinion, which shall be
included with the determination.
``(b) Procedures.--
``(1) Initiation.--
``(A) Call for petitions to participate.--(i)
Promptly upon the filing of a petition for a rate
adjustment or determination under section 804(a) or
804(b)(8), or by no later than January 5 of a year
specified in section 804 for the commencement of a
proceeding if a petition has not been filed by that
date, the Copyright Royalty Judges shall cause to be
published in the Federal Register notice of
commencement of proceedings under this chapter calling
for the filing of petitions to participate in a
proceeding under this chapter for the purpose of making
the relevant determination under section 111, 112, 114,
115, 116, 118, 119, 1004 or 1007, as the case may be.
``(ii) Petitions to participate shall be filed by
no later than 30 days after publication of notice of
commencement of a proceeding, under clause (i), except
that the Copyright Royalty Judges may, for substantial
good cause shown and if there is no prejudice to the
participants that have already filed petitions, accept
late petitions to participate at any time up to the
date that is 90 days before the date on which
participants in the proceeding are to file their
written direct statements.
``(B) Petitions to participate.--Each petition to
participate in a proceeding shall describe the
petitioner's interest in the subject matter of the
proceeding. Parties with similar interests may file a
single petition to participate.
``(2) Participation in general.--Subject to paragraph (4),
a person may participate in a proceeding under this chapter,
including through the submission of briefs or other
information, only if--
``(A) that person has filed a petition to
participate in accordance with paragraph (1) (either
individually or as a group under paragraph (1)(B)),
together with a filing fee of $150;
``(B) the Copyright Royalty Judges have not
determined that the petition to participate is facially
invalid; and
``(C) the Copyright Royalty Judges have not
determined, sua sponte or on the motion of another
participant in the proceeding, that the person lacks a
significant interest in the proceeding.
``(3) Voluntary negotiation period.--
``(A) In general.--Promptly after the date for
filing of petitions to participate in a proceeding, the
Copyright Royalty Judges shall make available to all
participants in the proceeding a list of such
participants and shall initiate a voluntary negotiation
period among the participants.
``(B) Length of proceedings.--The voluntary
negotiation period initiated under subparagraph (A)
shall be 3 months.
``(C) Determination of subsequent proceedings.--At
the close of the voluntary negotiation proceedings, the
Copyright Royalty Judges shall, if further proceedings
under this chapter are necessary, determine whether and
to what extent paragraphs (4) and (5) will apply to the
parties.
``(4) Small claims procedure in distribution proceedings.--
``(A) In general.--If, in a proceeding under this
chapter to determine the distribution of royalties, a
participant in the proceeding asserts that the
contested amount of the claim is $10,000 or less, the
Copyright Royalty Judges shall decide the controversy
on the basis of the filing in writing of the initial
claim, the initial response by any opposing
participant, and one additional response by each such
party. The participant asserting the claim shall not be
required to pay the filing fee under paragraph (2).
``(B) Bad faith inflation of claim.--If the
Copyright Royalty Judges determine that a participant
asserts in bad faith an amount in controversy in excess
of $10,000 for the purpose of avoiding a determination
under the procedure set forth in subparagraph (A), the
Copyright Royalty Judges shall impose a fine on that
participant in an amount not to exceed the difference
between the actual amount distributed and the amount
asserted by the participant.
``(5) Paper proceedings in ratemaking proceedings.--The
Copyright Royalty Judges in proceedings under this chapter to
determine royalty rates may decide, sua sponte or upon motion
of a participant, to determine issues on the basis of initial
filings in writing, initial responses by any opposing
participant, and one additional response by each such
participant. Prior to making such decision to proceed on such a
paper record only, the Copyright Royalty Judges shall offer to
all parties to the proceeding the opportunity to comment on the
decision. The procedure under this paragraph--
``(A) shall be applied in cases in which there is
no genuine issue of material fact, there is no need for
evidentiary hearings, and all participants in the
proceeding agree in writing to the procedure; and
``(B) may be applied under such other circumstances
as the Copyright Royalty Judges consider appropriate.
``(6) Regulations.--
``(A) In general.--The Copyright Royalty Judges may
issue regulations to carry out their functions under
this title. Not later than 120 days after Copyright
Royalty Judges or interim Copyright Royalty Judges, as
the case may be, are first appointed after the
enactment of the Copyright Royalty and Distribution
Reform Act of 2004, such judges shall issue regulations
to govern proceedings under this chapter.
``(B) Interim regulations.--Until regulations are
adopted under subparagraph (A), the Copyright Royalty
Judges shall apply the regulations in effect under this
chapter on the day before the effective date of the
Copyright Royalty and Distribution Reform Act of 2004,
to the extent such regulations are not inconsistent
with this chapter, except that functions carried out
under such regulations by the Librarian of Congress,
the Register of Copyrights, or copyright arbitration
royalty panels that, as of such date of enactment, are
to be carried out by the Copyright Royalty Judges under
this chapter, shall be carried out by the Copyright
Royalty Judges under such regulations.
``(C) Requirements.--Regulations issued under
subparagraph (A) shall include the following:
``(i) The written direct statements of all
participants in a proceeding under paragraph
(2) shall be filed by a date specified by the
Copyright Royalty Judges, which may be no
earlier than four months, and no later than
five months, after the end of the voluntary
negotiation period under paragraph (3).
Notwithstanding the preceding sentence, a
participant in a proceeding may, within 15 days
after the end of the discovery period specified
in clause (iii), file an amended written direct
statement based on new information received
during the discovery process.
``(ii)(I) Following the submission to the
Copyright Royalty Judges of written direct
statements by the participants in a proceeding
under paragraph (2), the judges shall meet with
the participants for the purpose of setting a
schedule for conducting and completing
discovery. Such schedule shall be determined by
the Copyright Royalty Judges.
``(II) In this chapter, the term `written
direct statements' means witness statements,
testimony, and exhibits to be presented in the
proceedings, and such other information that is
necessary to establish terms and rates, or the
distribution of royalty payments, as the case
may be, as set forth in regulations issued by
the Copyright Royalty Judges.
``(iii) Hearsay may be admitted in
proceedings under this chapter to the extent
deemed appropriate by the Copyright Royalty
Judges.
``(iv) Discovery in such proceedings shall
be permitted for a period of 60 days, except
for discovery ordered by the Copyright Royalty
Judges in connection with the resolution of
motions, orders and disputes pending at the end
of such period.
``(v) Any participant under paragraph (2)
in a proceeding under this chapter to determine
royalty rates may, upon written notice, seek
discovery of information and materials relevant
and material to the proceeding. Any objection
to any such discovery request shall be resolved
by a motion or request to compel discovery made
to the Copyright Royalty Judges. Each motion or
request to compel discovery shall be determined
by the Copyright Royalty Judges, or by a
Copyright Royalty Judge when permitted under
subsection (a)(2), who may approve the request
only if the evidence that would be produced is
relevant and material. A Copyright Royalty
Judge may refuse a request to compel discovery
of evidence that has been found to be relevant
and material, only upon good cause shown. For
purposes of the preceding sentence, the basis
for `good cause' may only be that--
``(I) the discovery sought is
unreasonably cumulative or duplicative,
or is obtainable from another source
that is more convenient, less
burdensome, or less expensive;
``(II) the participant seeking
discovery has had ample opportunity by
discovery in the action to obtain the
information sought; or
``(III) the burden or expense of
the proposed discovery outweighs its
likely benefit, taking into account the
needs and resources of the
participants, the importance of the
issues at stake, and the importance of
the proposed discovery in resolving the
issues.
``(vi) The rules in effect on the day
before the effective date of the Copyright
Royalty and Distribution Reform Act of 2004,
relating to discovery in proceedings under this
title to determine the distribution of royalty
fees, shall continue to apply to such
proceedings on and after such effective date.
``(vii) The Copyright Royalty Judges may
issue subpoenas requiring the production of
evidence or witnesses, but only if the evidence
requested to be produced or that would be
proffered by the witness is relevant and
material.
``(viii) The Copyright Royalty Judges shall
order a settlement conference among the
participants in the proceeding to facilitate
the presentation of offers of settlement among
the participants. The settlement conference
shall be held during a 21-day period following
the end of the discovery period.
``(c) Determination of Copyright Royalty Judges.--
``(1) Timing.--The Copyright Royalty Judges shall issue
their determination in a proceeding not later than 11 months
after the conclusion of the 21-day settlement conference period
under subsection (b)(3)(C)(vi), but, in the case of a
proceeding to determine successors to rates or terms that
expire on a specified date, in no event later than 15 days
before the expiration of the then current statutory rates and
terms.
``(2) Rehearings.--
``(A) In general.--The Copyright Royalty Judges
may, in exceptional cases, upon motion of a participant
under subsection (b)(2), order a rehearing, after the
determination in a proceeding is issued under paragraph
(1), on such matters as the Copyright Royalty Judges
determine to be appropriate.
``(B) Timing for filing motion.--Any motion for a
rehearing under subparagraph (A) may only be filed
within 15 days after the date on which the Copyright
Royalty Judges deliver their initial determination
concerning rates and terms to the participants in the
proceeding.
``(C) Participation by opposing party not
required.--In any case in which a rehearing is ordered,
any opposing party shall not be required to participate
in the rehearing.
``(D) No negative inference.--No negative inference
shall be drawn from lack of participation in a
rehearing.
``(E) Continuity of rates and terms.--(i) If the
decision of the Copyright Royalty Judges on any motion
for a rehearing is not rendered before the expiration
of the statutory rates and terms that were previously
in effect, in the case of a proceeding to determine
successors to rates and terms that expire on a
specified date, then--
``(I) the initial determination of the
Copyright Royalty Judges that is the subject of
the rehearing motion shall be effective as of
the day following the date on which the rates
and terms that were previously in effect
expire; and
``(II) in the case of a proceeding under
section 114(f)(1)(C) or 114(f)(2)(C), royalty
rates and terms shall, for purposes of section
114(f)(4)(B), be deemed to have been set at
those rates and terms contained in the initial
determination of the Copyright Royalty Judges
that is the subject of the rehearing motion, as
of the date of that determination.
``(ii) The pendency of a motion for a rehearing
under this paragraph shall not relieve persons
obligated to make royalty payments who would be
affected by the determination on that motion from
providing the statements of account and any reports of
use, to the extent required, and paying the royalties
required under the relevant determination or
regulations.
``(iii) Notwithstanding clause (ii), whenever
royalties described in clause (ii) are paid to a person
other than the Copyright Office, the entity designated
by the Copyright Royalty Judges to which such royalties
are paid by the copyright user (and any successor
thereto) shall, within 60 days after the motion for
rehearing is resolved or, if the motion is granted,
within 60 days after the rehearing is concluded, return
any excess amounts previously paid to the extent
necessary to comply with the final determination of
royalty rates by the Copyright Royalty Judges.
``(3) Contents of determination.--A determination of the
Copyright Royalty Judges shall be accompanied by the written
record, and shall set forth the facts that the Copyright
Royalty Judges found relevant to their determination. Among
other terms adopted in a determination, the Copyright Royalty
Judges may specify notice and recordkeeping requirements of
users of the copyrights at issue that apply in lieu of those
that would otherwise apply under regulations.
``(4) Continuing jurisdiction.--The Copyright Royalty
Judges may amend the determination or the regulations issued
pursuant to the determination in order to correct any technical
errors in the determination or to respond to unforeseen
circumstances that preclude the proper effectuation of the
determination.
``(5) Protective order.--The Copyright Royalty Judges may
issue such orders as may be appropriate to protect confidential
information, including orders excluding confidential
information from the record of the determination that is
published or made available to the public, except that any
terms or rates of royalty payments or distributions may not be
excluded.
``(6) Publication of determination.--The Librarian of
Congress shall cause the determination, and any corrections
thereto, to be published in the Federal Register. The Librarian
of Congress shall also publicize the determination and
corrections in such other manner as the Librarian considers
appropriate, including, but not limited to, publication on the
Internet. The Librarian of Congress shall also make the
determination, corrections, and the accompanying record
available for public inspection and copying.
``(d) Judicial Review.--
``(1) Appeal.--Any determination of the Copyright Royalty
Judges under subsection (c) may, within 30 days after the
publication of the determination in the Federal Register, be
appealed, to the United States Court of Appeals for the
District of Columbia Circuit, by any aggrieved participant in
the proceeding under subsection (b)(2) who fully participated
in the proceeding and who would be bound by the determination.
If no appeal is brought within that 30-day period, the
determination of the Copyright Royalty Judges shall be final,
and the royalty fee or determination with respect to the
distribution of fees, as the case may be, shall take effect as
set forth in paragraph (2).
``(2) Effect of rates.--
``(A) Expiration on specified date.--When this
title provides that the royalty rates and terms that
were previously in effect are to expire on a specified
date, any adjustment or determination by the Copyright
Royalty Judges of successor rates and terms for an
ensuing statutory license period shall be effective as
of the day following the date of expiration of the
rates and terms that were previously in effect, even if
the determination of the Copyright Royalty Judges is
rendered on a later date.
``(B) Other cases.--In cases where rates and terms
do not expire on a specified date or have not yet been
established, successor or new rates or terms shall take
effect on the first day of the second month that begins
after the publication of the determination of the
Copyright Royalty Judges in the Federal Register,
except as otherwise provided in this title, and the
rates and terms previously in effect, to the extent
applicable, shall remain in effect until such successor
rates and terms become effective.
``(C) Obligation to make payments.--(i) The
pendency of an appeal under this subsection shall not
relieve persons obligated to make royalty payments
under section 111, 112, 114, 115, 116, 118, 119, or
1003, who would be affected by the determination on
appeal, from providing the statements of account (and
any report of use, to the extent required) and paying
the royalties required under the relevant determination
or regulations.
``(ii) Notwithstanding clause (i), whenever
royalties described in clause (i) are paid to a person
other than the Copyright Office, the entity designated
by the Copyright Royalty Judges to which such royalties
are paid by the copyright user (and any successor
thereto) shall, within 60 days after the final
resolution of the appeal, return any excess amounts
previously paid (and interest thereon, if ordered
pursuant to paragraph (3)) to the extent necessary to
comply with the final determination of royalty rates on
appeal.
``(3) Jurisdiction of court.--If the court, pursuant to
section 706 of title 5, modifies or vacates a determination of
the Copyright Royalty Judges, the court may enter its own
determination with respect to the amount or distribution of
royalty fees and costs, and order the repayment of any excess
fees, the payment of any underpaid fees, and the payment of
interest pertaining respectively thereto, in accordance with
its final judgment. The court may also vacate the determination
of the Copyright Royalty Judges and remand the case to the
Copyright Royalty Judges for further proceedings in accordance
with subsection (a).
``(e) Administrative Matters.--
``(1) Deduction of costs of library of congress and
copyright office from filing fees.--
``(A) Deduction from filing fees.--The Librarian of
Congress may, to the extent not otherwise provided
under this title, deduct from the filing fees collected
under subsection (b) for a particular proceeding under
this chapter the reasonable costs incurred by the
Librarian of Congress, the Copyright Office, and the
Copyright Royalty Judges in conducting that proceeding,
other than the salaries of the Copyright Royalty Judges
and the 3 staff members appointed under section 802(b).
``(B) Authorization of appropriations.--There are
authorized to be appropriated such sums as may be
necessary to pay the costs of proceedings under this
chapter not covered by the filing fees collected under
subsection (b). All funds made available pursuant to
this subparagraph shall remain available until
expended.
``(2) Positions required for administration of compulsory
licensing.--Section 307 of the Legislative Branch
Appropriations Act, 1994, shall not apply to employee positions
in the Library of Congress that are required to be filled in
order to carry out section 111, 112, 114, 115, 116, 118, or 119
or chapter 10.
``Sec. 804. Institution of proceedings
``(a) Filing of Petition.--With respect to proceedings referred to
in paragraphs (1) and (2) of section 801(b) concerning the
determination or adjustment of royalty rates as provided in sections
111, 112, 114, 115, 116, 118, and 1004, during the calendar years
specified in the schedule set forth in subsection (b), any owner or
user of a copyrighted work whose royalty rates are specified by this
title, or are established under this chapter before or after the
enactment of the Copyright Royalty and Distribution Reform Act of 2004,
may file a petition with the Copyright Royalty Judges declaring that
the petitioner requests a determination or adjustment of the rate. The
Copyright Royalty Judges shall make a determination as to whether the
petitioner has such a significant interest in the royalty rate in which
a determination or adjustment is requested. If the Copyright Royalty
Judges determine that the petitioner has such a significant interest,
the Copyright Royalty Judges shall cause notice of this determination,
with the reasons therefor, to be published in the Federal Register,
together with the notice of commencement of proceedings under this
chapter. With respect to proceedings under paragraph (1) of section
801(b) concerning the determination or adjustment of royalty rates as
provided in sections 112 and 114, during the calendar years specified
in the schedule set forth in subsection (b), the Copyright Royalty
Judges shall cause notice of commencement of proceedings under this
chapter to be published in the Federal Register as provided in section
803(b)(1)(A).
``(b) Timing of Proceedings.--
``(1) Section 111 proceedings.--(A) A petition described in
subsection (a) to initiate proceedings under section 801(b)(2)
concerning the adjustment of royalty rates under section 111 to
which subparagraph (A) or (D) of section 801(b)(2) applies may
be filed during the year 2005 and in each subsequent fifth
calendar year.
``(B) In order to initiate proceedings under section
801(b)(2) concerning the adjustment of royalty rates under
section 111 to which subparagraph (B) or (C) of section
801(b)(2) applies, within 12 months after an event described in
either of those subsections, any owner or user of a copyrighted
work whose royalty rates are specified by section 111, or by a
rate established under this chapter before or after the
enactment of the Copyright Royalty and Distribution Reform Act
of 2004, may file a petition with the Copyright Royalty Judges
declaring that the petitioner requests an adjustment of the
rate. The Copyright Royalty Judges shall then proceed as set
forth in subsection (a) of this section. Any change in royalty
rates made under this chapter pursuant to this subparagraph may
be reconsidered in the year 2005, and each fifth calendar year
thereafter, in accordance with the provisions in section
801(b)(3)(B) or (C), as the case may be. A petition for
adjustment of rates under section 11(d)(1)(B) as a result of a
change is the rules and regulations of the Federal
Communications Commission shall set forth the change on which
the petition is based.
``(C) Any adjustment of royalty rates under section 111
shall take effect as of the first accounting period commencing
after the publication of the determination of the Copyright
Royalty Judges in the Federal Register, or on such other date
as is specified in that determination.
``(2) Certain section 112 proceedings.--Proceedings under
this chapter shall be commenced in the year 2007 to determine
reasonable terms and rates of royalty payments for the
activities described in section 112(e)(1) relating to the
limitation on exclusive rights specified by section
114(d)(1)(C)(iv), to become effective on January 1, 2009. Such
proceedings shall be repeated in each subsequent fifth calendar
year.
``(3) Section 114 and corresponding 112 proceedings.--
``(A) For eligible nonsubscription services and new
subscription services.--Proceedings under this chapter
shall be commenced as soon as practicable after the
effective date of the Copyright Royalty and
Distribution Reform Act of 2004 to determine reasonable
terms and rates of royalty payments under sections 114
and 112 for the activities of eligible nonsubscription
transmission services and new subscription services, to
be effective for the period beginning on January 1,
2006, and ending on December 31, 2010. Such proceedings
shall next be commenced in January 2009 to determine
reasonable terms and rates of royalty payments, to
become effective on January 1, 2011. Thereafter, such
proceedings shall be repeated in each subsequent fifth
calendar year.
``(B) For preexisting subscription and satellite
digital audio radio services.--Proceedings under this
chapter shall be commenced in January 2006 to determine
reasonable terms and rates of royalty payments under
sections 114 and 112 for the activities of preexisting
subscription services, to be effective during the
period beginning on January 1, 2008, and ending on
December 31, 2012, and preexisting satellite digital
audio radio services, to be effective during the period
beginning on January 1, 2007, and ending on December
31, 2012. Such proceedings shall next be commenced in
2011 to determine reasonable terms and rates of royalty
payments, to become effective on January 1, 2013.
Thereafter, such proceedings shall be repeated in each
subsequent fifth calendar year.
``(C)(i) Notwithstanding any other provision of
this chapter, this subparagraph shall govern
proceedings commenced pursuant to sections 114(f)(1)(C)
and 114(f)(2)(C) concerning new types of services.
``(ii) Not later than 30 days after a petition to
determine rates and terms for a new type of service
that is filed by any copyright owner of sound
recordings, or such new type of service, indicating
that such new type of service is or is about to become
operational, the Copyright Royalty Judges shall issue a
notice for a proceeding to determine rates and terms
for such service.
``(iii) The proceeding shall follow the schedule
set forth in such subsections (b), (c), and (d) of
section 803, except that--
``(I) the determination shall be issued by
not later than 24 months after the publication
of the notice under clause (ii); and
``(II) the decision shall take effect as
provided in subsections (c)(2) and (d)(2) of
section 803 and section 114(f)(4)(B)(ii) and
(C).
``(iv) The rates and terms shall remain in effect
for the period set forth in section 114(f)(1)(C) or
114(f)(2)(C), as the case may be.
``(4) Section 115 proceedings.--A petition described in
subsection (a) to initiate proceedings under section 801(b)(1)
concerning the adjustment or determination of royalty rates as
provided in section 115 may be filed in the year 2006 and in
each subsequent fifth calendar year, or at such other times as
the parties have agreed under section 115(c)(3)(B) and (C).
``(5) Section 116 proceedings.--(A) A petition described in
subsection (a) to initiate proceedings under section 801(b)
concerning the determination of royalty rates and terms as
provided in section 116 may be filed at any time within 1 year
after negotiated licenses authorized by section 116 are
terminated or expire and are not replaced by subsequent
agreements.
``(B) If a negotiated license authorized by section 116 is
terminated or expires and is not replaced by another such
license agreement which provides permission to use a quantity
of musical works not substantially smaller than the quantity of
such works performed on coin-operated phonorecord players
during the 1-year period ending March 1, 1989, the Copyright
Royalty Judges shall, upon petition filed under paragraph (1)
within 1 year after such termination or expiration, commence a
proceeding to promptly establish an interim royalty rate or
rates for the public performance by means of a coin-operated
phonorecord player of nondramatic musical works embodied in
phonorecords which had been subject to the terminated or
expired negotiated license agreement. Such rate or rates shall
be the same as the last such rate or rates and shall remain in
force until the conclusion of proceedings by the Copyright
Royalty Judges, in accordance with section 803, to adjust the
royalty rates applicable to such works, or until superseded by
a new negotiated license agreement, as provided in section
116(b).
``(6) Section 118 proceedings.--A petition described in
subsection (a) to initiate proceedings under section 801(b)(1)
concerning the determination of reasonable terms and rates of
royalty payments as provided in section 118 may be filed in the
year 2006 and in each subsequent fifth calendar year.
``(7) Section 1004 proceedings.--A petition described in
subsection (a) to initiate proceedings under section 801(b)(1)
concerning the adjustment of reasonable royalty rates under
section 1004 may be filed as provided in section 1004(a)(3).
``(8) Proceedings concerning distribution of royalty
fees.--With respect to proceedings under section 801(b)(3)
concerning the distribution of royalty fees in certain
circumstances under section 111, 116, 119, or 1007, the
Copyright Royalty Judges shall, upon a determination that a
controversy exists concerning such distribution, cause to be
published in the Federal Register notice of commencement of
proceedings under this chapter.
``Sec. 805. General rule for voluntarily negotiated agreements
``Any rates or terms under this title that--
``(1) are agreed to by participants to a proceeding under
section 803(b)(2),
``(2) are adopted by the Copyright Royalty Judges as part
of a determination under this chapter, and
``(3) are in effect for a period shorter than would
otherwise apply under a determination pursuant to this chapter,
shall remain in effect for such period of time as would otherwise apply
under such determination, except that the Copyright Royalty Judges
shall adjust the rates pursuant to the voluntary negotiations to
reflect national monetary inflation during the additional period the
rates remain in effect.''.
(b) Conforming Amendment.--The table of chapters for title 17,
United States Code, is amended by striking the item relating to chapter
8 and inserting the following:
``8. Proceedings by Copyright Royalty Judges................ 801''.
SEC. 4. DEFINITION.
Section 101 is amended by inserting after the definition of
``copies'' the following:
``A `Copyright Royalty Judge' is a Copyright Royalty Judge
appointed under section 802 of this title, and includes any
individual serving as an interim Copyright Royalty Judge under
such section.''.
SEC. 5. TECHNICAL AMENDMENTS.
(a) Cable Rates.--Section 111(d) is amended--
(1) in paragraph (2), in the second sentence, by striking
``a copyright arbitration royalty panel'' and inserting ``the
Copyright Royalty Judges.''; and
(2) in paragraph (4)--
(A) in subparagraph (A), by striking ``Librarian of
Congress'' each place it appears and inserting
``Copyright Royalty Judges'';
(B) in subparagraph (B)--
(i) in the first sentence, by striking
``Librarian of Congress shall, upon the
recommendation of the Register of Copyrights,''
and inserting ``Copyright Royalty Judges
shall'';
(ii) in the second sentence, by striking
``Librarian determines'' and inserting
``Copyright Royalty Judges determine''; and
(iii) in the third sentence--
(I) by striking ``Librarian'' each
place it appears and inserting
``Copyright Royalty Judges''; and
(II) by striking ``convene a
copyright arbitration royalty panel''
and inserting ``conduct a proceeding'';
and
(C) in subparagraph (C), by striking ``Librarian of
Congress'' and inserting ``Copyright Royalty Judges''.
(b) Ephemeral Recordings.--Section 112(e) is amended--
(1) in paragraph (3)--
(A) by amending the first sentence to read as
follows: ``Voluntary negotiation proceedings initiated
pursuant to section 804(a) for the purpose of
determining reasonable terms and rates of royalty
payments for the activities specified by paragraph (1)
shall cover the 5-year period beginning on January 1 of
the second year following the year in which the
proceedings are commenced, or such other period as the
parties may agree.''; and
(B) in the third sentence, by striking ``Librarian
of Congress'' and inserting ``Copyright Royalty
Judges'';
(2) in paragraph (4)--
(A) by amending the first sentence to read as
follows: ``In the absence of license agreements
negotiated under paragraphs (2) and (3), the Copyright
Royalty Judges shall commence a proceeding pursuant to
chapter 8 to determine and publish in the Federal
Register a schedule of reasonable rates and terms
which, subject to paragraph (5), shall be binding on
all copyright owners of sound recordings and
transmitting organizations entitled to a statutory
license under this subsection during the 5-year period
specified in paragraph (3), or such other period as the
parties may agree.'';
(B) by striking ``copyright arbitration royalty
panel'' each subsequent place it appears and inserting
``Copyright Royalty Judges'';
(C) in the fourth sentence, by striking ``its
decision'' and inserting ``their decision''; and
(D) in the last sentence, by striking ``Librarian
of Congress'' and inserting ``Copyright Royalty
Judges'';
(3) in paragraph (5), by striking ``or decision by the
Librarian of Congress'' and inserting ``, decision by the
Librarian of Congress, or determination by the Copyright
Royalty Judges'';
(4) by striking paragraph (6) and redesignating paragraphs
(7), (8), and (9), as paragraphs (6), (7), and (8),
respectively; and
(5) in paragraph (6)(A), as so redesignated, by striking
``Librarian of Congress'' and inserting ``Copyright Royalty
Judges''.
(c) Scope of Exclusive Rights in Sound Recordings.--Section 114(f)
is amended--
(1) in paragraph (1)--
(A) in subparagraph (A)--
(i) by amending the first sentence to read
as follows: ``Voluntary negotiation proceedings
initiated pursuant to section 804(a) for the
purpose of determining reasonable terms and
rates of royalty payments for subscription
transmissions by preexisting subscription
services and transmissions by preexisting
satellite digital audio radio services shall
cover the 5-year period beginning on January 1
of the year following the second year in which
the proceedings are commenced, except where
differential transitional periods are provided
in section 804(b)(3), or such other period as
the parties may agree.''; and
(ii) in the third sentence, by striking
``Librarian of Congress'' and inserting
``Copyright Royalty Judges'';
(B) in subparagraph (B)--
(i) by amending the first sentence to read
as follows: ``In the absence of license
agreements negotiated under subparagraph (A),
the Copyright Royalty Judges shall commence a
proceeding pursuant to chapter 8 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 affected by this paragraph
during the 5-year period specified in
subparagraph (A), or such other date as the
parties may agree.''; and
(ii) in the second sentence, by striking
``copyright arbitration royalty panel'' and
inserting ``Copyright Royalty Judges''; and
(C) by amending subparagraph (C) to read as
follows:
``(C) The procedures under subparagraphs (A) and (B) also
shall be initiated pursuant to a petition filed by any
copyright owners of sound recordings, any preexisting
subscription services, or any preexisting satellite digital
audio radio services indicating that a new type of subscription
digital audio transmission service on which sound recordings
are performed is or is about to become operational, for the
purpose of determining reasonable terms and rates of royalty
payments with respect to such new type of transmission service
for the period beginning with the inception of such new type of
service and ending on the date on which the royalty rates and
terms for subscription digital audio transmission services most
recently determined under subparagraph (A) or (B) and chapter 8
expire, or such other period as the parties may agree.'';
(2) in paragraph (2)--
(A) in subparagraph (A)--
(i) by amending the first sentence to read
as follows: ``Voluntary negotiation proceedings
initiated pursuant to section 804(a) for the
purpose of determining reasonable terms and
rates of royalty payments for public
performances of sound recordings by means of
eligible nonsubscription transmissions and
transmissions by new subscription services
specified by subsection (d)(2) shall cover the
5-year period beginning on January 1 of the
second year following the year in which the
proceedings are commenced, except where
different transitional periods are provided in
section 804(b)(3)(A), or such other period as
the parties may agree.''; and
(ii) in the third sentence, by striking
``Librarian of Congress'' and inserting
``Copyright Royalty Judges'';
(B) in subparagraph (B)--
(i) by amending the first sentence to read
as follows: ``In the absence of license
agreements negotiated under subparagraph (A),
the Copyright Royalty Judges shall commence a
proceeding pursuant to chapter 8 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 affected by this paragraph
during the period specified in subparagraph
(A), or such other period as the parties may
agree.''; and
(ii) by striking ``copyright arbitration
royalty panel'' each subsequent place it
appears and inserting ``Copyright Royalty
Judges''; and
(C) by amending subparagraph (C) to read as
follows:
``(C) The procedures under subparagraphs (A) and (B) shall
also be initiated pursuant to a petition filed by any copyright
owners of sound recordings or any eligible nonsubscription
service or new subscription service indicating that a new type
of eligible nonsubscription service or new subscription service
on which sound recordings are performed is or is about to
become operational, for the purpose of determining reasonable
terms and rates of royalty payments with respect to such new
type of service for the period beginning with the inception of
such new type of service and ending on the date on which the
royalty rates and terms for preexisting subscription digital
audio transmission services or preexisting satellite digital
radio audio services, as the case may be, most recently
determined under subparagraph (A) or (B) and chapter 8 expire,
or such other period as the parties may agree.'';
(3) in paragraph (3), by striking ``or decision by the
Librarian of Congress'' and inserting ``, decision by the
Librarian of Congress, or determination by the Copyright
Royalty Judges''; and
(4) in paragraph (4), by striking ``Librarian of Congress''
each place it appears and inserting ``Copyright Royalty
Judges''.
(d) Phonorecords of Nondramatic Musical Works.--Section 115(c)(3)
is amended--
(1) in subparagraph (A)(ii), by striking ``(F)'' and
inserting ``(E)'';
(2) in subparagraph (B)--
(A) by striking ``under this paragraph'' and
inserting ``under this section''; and
(B) by striking ``subparagraphs (B) through (F)''
and inserting ``this subparagraph and subparagraphs (B)
through (E)'';
(3) in subparagraph (C)--
(A) by amending the first sentence to read as
follows: ``Voluntary negotiation proceedings initiated
pursuant to a petition filed under section 804(a) for
the purpose of determining reasonable terms and rates
of royalty payments for the activities specified by
this section shall cover the period beginning with the
effective date of such terms and rates, but not earlier
than January 1 of the second year following the year in
which the petition is filed, and ending on the
effective date of successor terms and rates, or such
other period as the parties may agree.''; and
(B) in the third sentence, by striking ``Librarian
of Congress'' and inserting ``Copyright Royalty
Judges'';
(4) in subparagraph (D)--
(A) by amending the first sentence to read as
follows: ``In the absence of license agreements
negotiated under subparagraphs (B) and (C), the
Copyright Royalty Judges shall commence proceedings
pursuant to chapter 8 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 specified in
subparagraph (C) or such other period as may be
determined pursuant to subparagraphs (B) and (C), or
such other period as the parties may agree.'';
(B) in the third sentence, by striking ``copyright
arbitration royalty panel'' and inserting ``Copyright
Royalty Judges''; and
(C) in the last sentence, by striking ``Librarian
of Congress'' and inserting ``Copyright Royalty
Judges'';
(5) in subparagraph (E)--
(A) in clause (i)--
(i) in the first sentence, by striking
``the Librarian of Congress'' and inserting ``a
copyright arbitration royalty panel, the
Librarian of Congress, or the Copyright Royalty
Judges''; and
(ii) in the second sentence, by striking
``(C), (D) or (F) shall be given effect'' and
inserting ``(C) or (D) shall be given effect as
to digital phonorecord deliveries''; and
(B) in clause (ii)(I), by striking ``(C), (D) or
(F)'' each place it appears and inserting ``(C) or
(D)''; and
(6) by striking subparagraph (F) and redesignating
subparagraphs (G) through (L) as subparagraphs (F) through (K),
respectively.
(e) Coin-Operated Phonorecord Players.--Section 116 is amended--
(1) in subsection (b), by amending paragraph (2) to read as
follows:
``(2) Chapter 8 proceeding.--Parties not subject to such a
negotiation may have the terms and rates and the division of
fees described in paragraph (1) determined in a proceeding in
accordance with the provisions of chapter 8.''; and
(2) in subsection (c)--
(A) in the subsection heading, by striking
``Copyright Arbitration Royalty Panel Determinations''
and inserting ``Determinations by Copyright Royalty
Judges''; and
(B) by striking ``a copyright arbitration royalty
panel'' and inserting ``the Copyright Royalty Judges''.
(f) Use of Certain Works in Connection With Noncommercial
Broadcasting.--Section 118 is amended--
(1) in subsection (b)--
(A) in paragraph (1)--
(i) in the first sentence, by striking
``Librarian of Congress'' and inserting
``Copyright Royalty Judges''; and
(ii) by striking the second and third
sentences;
(B) in paragraph (2), by striking ``the Librarian
of Congress:'' and all that follows through the end of
the sentence and inserting ``a copyright arbitration
royalty panel, the Librarian of Congress, or the
Copyright Royalty Judge, if copies of such agreements
are filed with the Copyright Royalty Judges within 30
days of execution in accordance with regulations that
the Copyright Royalty Judges shall issue.''; and
(C) in paragraph (3)--
(i) in the second sentence--
(I) by striking ``copyright
arbitration royalty panel'' and
inserting ``Copyright Royalty Judges'';
and
(II) by striking ``paragraph (2).''
and inserting ``paragraph (2) or
(3).'';
(ii) in the last sentence, by striking
```Librarian of Congress'' and inserting
``Copyright Royalty Judges''; and
(iii) by striking ``(3) In'' and all that
follows through the end of the first sentence
and inserting the following:
``(3) Voluntary negotiation proceedings initiated pursuant
to a petition filed under section 804(a) for the purpose of
determining a schedule of terms and rates of royalty payments
by public broadcasting entities to copyright owners in works
specified by this subsection and the proportionate division of
fees paid among various copyright owners shall cover the 5-year
period beginning on January 1 of the second year following the
year in which the petition is filed. The parties to each
negotiation proceeding shall bear their own costs.
``(4) In the absence of license agreements negotiated under
paragraph (2) or (3), the Copyright Royalty Judges shall,
pursuant to chapter 8, conduct a proceeding to determine and
publish in the Federal Register a schedule of rates and terms
which, subject to paragraph (2), shall be binding on all owners
of copyright in works specified by this subsection and public
broadcasting entities, regardless of whether such copyright
owners have submitted proposals to the Copyright Royalty
Judges.'';
(2) by striking subsection (c) and redesignating
subsections (d) through (g) as subsections (c) through (f),
respectively;
(3) in subsection (c), as so redesignated, in the matter
preceding paragraph (1)--
(A) by striking ``(b)(2)'' and inserting ``(b)(2)
or (3)'';
(B) by striking ``(b)(3)'' and inserting
``(b)(4)''; and
(C) by striking ``a copyright arbitration royalty
panel'' and inserting ``the Copyright Royalty Judges'';
(4) in subsection (d), as so redesignated--
(A) by striking ``in the Copyright Office'' and
inserting ``with the Copyright Royalty Judges''; and
(B) by striking ``Register of Copyrights'' and
inserting ``Copyright Royalty Judges''; and
(5) in subsection (f), as so redesignated, by striking
``(d)'' and inserting ``(c)''.
(g) Secondary Transmissions by Satellite Carriers.--Section 119(b)
is amended--
(1) in paragraph (3), by striking ``Librarian of Congress''
and inserting ``Copyright Royalty Judges''; and
(2) in paragraph (4)--
(A) in subparagraph (A), by striking ``Librarian of
Congress'' each place it appears and inserting
``Copyright Royalty Judges''; and
(B) by amending subparagraphs (B) and (C) to read
as follows:
``(B) Determination of controversy;
distributions.--After the first day of August of each
year, the Copyright Royalty Judges shall determine
whether there exists a controversy concerning the
distribution of royalty fees. If the Copyright Royalty
Judges determine that no such controversy exists, the
Librarian of Congress shall, after deducting reasonable
administrative costs under this paragraph, distribute
such fees to the copyright owners entitled to receive
them, or to their designated agents. If the Copyright
Royalty Judges find the existence of a controversy, the
Copyright Royalty Judges shall, pursuant to chapter 8
of this title, conduct a proceeding to determine the
distribution of royalty fees.
``(C) Withholding of fees during controversy.--
During the pendency of any proceeding under this
subsection, the Copyright Royalty Judges shall withhold
from distribution an amount sufficient to satisfy all
claims with respect to which a controversy exists,
subject to any distributions made under section
801(b)(3).''.
(h) Digital Audio Recording Devices.--
(1) Royalty payments.--Section 1004(a)(3) is amended by
striking ``Librarian of Congress'' each place it appears and
inserting ``Copyright Royalty Judges''.
(2) Entitlement to royalty payments.--Section 1006(c) is
amended by striking ``Librarian of Congress shall convene a
copyright arbitration royalty panel which'' and inserting
``Copyright Royalty Judges''.
(3) Procedures for distributing royalty payments.--Section
1007 is amended--
(A) in subsection (a), by amending paragraph (1) to
read as follows:
``(1) Filing of claims.--During the first 2 months of each
calendar year, every interested copyright party seeking to
receive royalty payments to which such party is entitled under
section 1006 shall file with the Copyright Royalty Judges a
claim for payments collected during the preceding year in such
form and manner as the Copyright Royalty Judges shall prescribe
by regulation.''; and
(B) by amending subsections (b) and (c) to read as
follows:
``(b) Distribution of Payments in the Absence of a Dispute.--After
the period established for the filing of claims under subsection (a),
in each year, the Copyright Royalty Judges shall determine whether
there exists a controversy concerning the distribution of royalty
payments under section 1006(c). If the Copyright Royalty Judges
determine that no such controversy exists, the Librarian of Congress
shall, within 30 days after such determination, authorize the
distribution of the royalty payments as set forth in the agreements
regarding the distribution of royalty payments entered into pursuant to
subsection (a). The Librarian of Congress shall, before such royalty
payments are distributed, deduct the reasonable administrative costs
incurred by the Librarian under this section.
``(c) Resolution of Disputes.--If the Copyright Royalty Judges find
the existence of a controversy, the Copyright Royalty Judges shall,
pursuant to chapter 8 of this title, conduct a proceeding to determine
the distribution of royalty payments. During the pendency of such a
proceeding, the Copyright Royalty Judges shall withhold from
distribution an amount sufficient to satisfy all claims with respect to
which a controversy exists, but shall, to the extent feasible,
authorize the distribution of any amounts that are not in controversy.
The Librarian of Congress shall, before such royalty payments are
distributed, deduct the reasonable administrative costs incurred by the
Librarian under this section.''.
(4) Determination of certain disputes.--(A) Section 1010 is
amended to read as follows:
``Sec. 1010. Determination of certain disputes
``(a) Scope of Determination.--Before the date of first
distribution in the United States of a digital audio recording device
or a digital audio interface device, any party manufacturing,
importing, or distributing such device, and any interested copyright
party may mutually agree to petition the Copyright Royalty Judges to
determine whether such device is subject to section 1002, or the basis
on which royalty payments for such device are to be made under section
1003.
``(b) Initiation of Proceedings.--The parties under subsection (a)
shall file the petition with the Copyright Royalty Judges requesting
the commencement of a proceeding. Within 2 weeks after receiving such a
petition, the Chief Copyright Royalty Judge shall cause notice to be
published in the Federal Register of the initiation of the proceeding.
``(c) Stay of Judicial Proceedings.--Any civil action brought under
section 1009 against a party to a proceeding under this section shall,
on application of one of the parties to the proceeding, be stayed until
completion of the proceeding.
``(d) Proceeding.--The Copyright Royalty Judges shall conduct a
proceeding with respect to the matter concerned, in accordance with
such procedures as the Copyright Royalty Judges may adopt. The
Copyright Royalty Judges shall act on the basis of a fully documented
written record. Any party to the proceeding may submit relevant
information and proposals to the Copyright Royalty Judges. The parties
to the proceeding shall each bear their respective costs of
participation.
``(e) Judicial Review.--Any determination of the Copyright Royalty
Judges under subsection (d) may be appealed, by a party to the
proceeding, in accordance with section 803(d) of this title. The
pendency of an appeal under this subsection shall not stay the
determination of the Copyright Royalty Judges. If the court modifies
the determination of the Copyright Royalty Judges, the court shall have
jurisdiction to enter its own decision in accordance with its final
judgment. The court may further vacate the determination of the
Copyright Royalty Judges and remand the case for proceedings as
provided in this section.''.
(B) The item relating to section 1010 in the table of
sections for chapter 10 is amended to read as follows:
``1010. Determination of certain disputes.''.
SEC. 6. EFFECTIVE DATE AND TRANSITION PROVISIONS.
(a) Effective Date.--This Act and the amendments made by this Act
shall take effect 6 months after the date of the enactment of this Act,
except that the Librarian of Congress shall appoint interim Copyright
Royalty Judges under section 802(d) of title 17, United States Code, as
amended by this Act, within 90 days after such date of enactment to
carry out the functions of the Copyright Royalty Judges under title 17,
United States Code, to the extent that Copyright Royalty Judges
provided for in section 801(a) of title 17, United States Code, as
amended by this Act, have not been appointed before the end of that 90-
day period.
(b) Transition Provisions.--
(1) In general.--Subject to paragraph (2), the amendments
made by this Act shall not affect any proceedings commenced,
petitions filed, or voluntary agreements entered into before
the enactment of this Act under the provisions of title 17,
United States Code, amended by this Act, and pending on such
date of enactment. Such proceedings shall continue,
determinations made in such proceedings, and appeals taken
therefrom, as if this Act had not been enacted, and shall
continue in effect until modified under title 17, United States
Code, as amended by this Act. Such petitions filed and
voluntary agreements entered into shall remain in effect as if
this Act had not been enacted.
(2) Effective periods for certain ratemaking proceedings.--
Notwithstanding paragraph (1), terms and rates in effect under
section 114(f)(2) or 112(e) of title 17, United States Code,
for new subscription services, eligible nonsubscription
services, and services exempt under section 114(d)(1)(C)(iv) of
such title for the period 2003 through 2004, and any rates
published in the Federal Register under the authority of the
Small Webcaster Settlement Act of 2002 for the years 2003
through 2004, shall be effective until the first applicable
effective date for successor terms and rates specified in
section 804(b)(2) or (3)(A) of title 17, United States Code, or
until such later date as the parties may agree. Any proceeding
commenced before the enactment of this Act pursuant to section
114(f)(2) and chapter 8 of title 17, United States Code, to
adjust or determine such rates and terms for periods following
2004 shall be terminated upon the enactment of this Act and
shall be null and void.
(c) Existing Appropriations.--Any funds made available in an
appropriations Act before the date of the enactment of this Act to
carry out chapter 8 of title 17, United States Code, shall be available
to the extent necessary to carry out this section.
Passed the House of Representatives March 3, 2004.
Attest:
Clerk.