[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1417 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 1417
To amend title 17, United States Code, to replace copyright arbitration
royalty panels with a Copyright Royalty Judge, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 25, 2003
Mr. Smith of Texas (for himself, Mr. Berman, and Mr. Conyers)
introduced the following bill; which was referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To amend title 17, United States Code, to replace copyright arbitration
royalty panels with a Copyright Royalty Judge, 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 2003''.
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 JUDGE
``Sec.
``801. Copyright Royalty Judge; appointment and functions.
``802. Copyright Royalty Judgeship; professional staff.
``803. Proceedings of Copyright Royalty Judges.
``804. Institution and conclusion of proceedings.
``Sec. 801. Copyright Royalty Judge; appointment and functions
``(a) Appointment.--The Librarian of Congress shall appoint a full-
time Copyright Royalty Judge. In making the appointment, the Librarian
may consult with the Register of Copyrights.
``(b) Functions.--Subject to the provisions of this chapter, the
functions of the Copyright Royalty Judge shall be as follows:
``(1) To make determinations concerning the adjustment of
reasonable copyright royalty rates as provided in sections 111,
114, 115, 119, and 1004.
``(2) To make determinations as to reasonable terms and
rates of royalty payments as provided in sections 112(e), 114,
115, 116, and 118. 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.
``(3) 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 Judge 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
Judge 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.
``(4) To authorize the distribution of those royalty fees
collected under sections 111, 119, and 1005 that the judge has
found are not subject to controversy.
``(5) To authorize the distribution of royalty fees
deposited with the Register of Copyrights under sections 111,
116, 119(b), and 1003, and to determine, in cases where
controversy exists, the distribution of such fees.
``(6) 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.
``(7) 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.
``(c) Rulings.--The Copyright Royalty Judge 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 Judge. The Copyright Royalty Judge may consult with
the Register of Copyrights in making any rulings under this subsection.
``(d) Administrative Support.--The Librarian of Congress shall
provide the Copyright Royalty Judge with the necessary administrative
services related to proceedings under this chapter.
``Sec. 802. Copyright Royalty Judgeship; professional staff
``(a) Qualifications of Copyright Royalty Judge.--The Copyright
Royalty Judge shall be an attorney with 10 or more years of legal
practice with demonstrated experience in administrative hearings or
court trials and demonstrated knowledge of copyright law who is free of
any financial conflict of interest under subsection (h).
``(b) Professional Staff.--The Copyright Royalty Judge shall
appoint 2 full-time staff members to assist the Copyright Royalty Judge
in performing the functions of the Copyright Royalty Judge. Each staff
member shall be an individual with expertise in copyright law and in
the business and economics of industries affected by the actions taken
by the Copyright Royalty Judge under this chapter.
``(c) Terms.--The term of the Copyright Royalty Judge shall be 5
years. An individual serving as a Copyright Royalty Judge may be
reappointed to subsequent terms as such judge. The term of the
Copyright Royalty Judge shall begin when the term of the predecessor of
that 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.--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.
``(e) Compensation.--The Copyright Royalty Judge shall receive
compensation at the rate of basic pay payable for level AL-2 for
administrative law judges pursuant to section 5372(b) of title 5, and
the staff members appointed under subsection (b) shall each be paid at
a rate of pay determined by the Librarian of Congress which shall be
not less than the basic rate of pay payable for GS-14 of the General
Schedule and not more than the basic rate of pay payable for GS-15 of
such Schedule. The compensation of the Copyright Royalty Judge and such
staff members 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.
``(f) Independence of Copyright Royalty Judge.--
``(1) In general.--The Copyright Royalty Judge 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 and rate adjustment petitions,
and in issuing rulings under this title, except that the
Copyright Royalty Judge may consult with the Register of
Copyrights in making such determinations.
``(2) Performance appraisals.--
``(A) In general.--Notwithstanding any other
provision of law or any regulation of the Library of
Congress, the Copyright Royalty Judge shall not receive
an annual performance appraisal.
``(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.--The Copyright Royalty Judge may
not 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 Judge 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.--The Copyright Royalty Judge shall conduct
proceedings in accordance with subchapter II of chapter 5 of title 5,
for the purpose of making determinations in carrying out the purposes
set forth in section 801. The Copyright Royalty Judge shall act on the
basis of a fully documented written record, prior decisions of the
Copyright Royalty Tribunal, prior copyright arbitration panel
determinations, and rulings by the Librarian of Congress before the
effective date of the Copyright Royalty and Distribution Reform Act of
2003. Any person participating in proceedings under this chapter may
submit relevant information and proposals to the Copyright Royalty
Judge in such proceedings.
``(b) Procedures.--
``(1) Participation in general.--Subject to paragraph (2),
a person may participate in proceedings under this chapter,
including through the submission of briefs or other
information, only if that person files with the Copyright
Royalty Judge, in such form and manner as the Librarian of
Congress may by regulation prescribe, a notice of intent to
participate in the proceedings, together with a filing fee of
$150, before the proceedings commence.
``(2) Small claims proceedings.--If the amount in
controversy that a party to a proceeding under this chapter to
determine the distribution of royalties asserts is $500 or
less, that party may elect to have the controversy decided by
the Copyright Royalty Judge on the basis of the filing in
writing of the initial claim, initial response by any opposing
party, and one additional response by each of such party. The
party making such election shall not be required to pay the
filing fee under paragraph (1).
``(3) Regulations.--
``(A) In general.--The Register of Copyrights
shall, not later than 60 days after the date of the
enactment of the Copyright Royalty and Distribution
Reform Act of 2003, issue regulations to govern
proceedings under this chapter, subject to section
801(c).
``(B) Interim regulations.--Until such regulations
are adopted, the regulations in effect under this
chapter on the day before such date of enactment shall
continue to apply, 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 Judge under
this chapter, shall be carried out by the Copyright
Royalty Judge under such regulations.
``(C) Requirements.--Regulations issued under
subparagraph (A) shall include the following:
``(i) The Federal Rules of Evidence with
respect to hearsay shall apply to proceedings
under this chapter.
``(ii) Discovery in such proceedings shall
be permitted for a period of 60 days. Final
witness lists for the proceedings shall not be
required until the end of the discovery period.
``(iii) A defending party to a claim in a
proceeding may serve upon an adverse party an
offer to allow for a determination to be made
against the adverse party for the claimed money
or property or other specified amount up to the
day on which hearings in the proceeding begin.
If before the day on which hearings in the
proceeding begin an offer under this clause is
accepted, either party may file the offer and
notice of acceptance of the offer with the
Copyright Royalty Judge, who shall enter his or
her determination pursuant thereto.
``(c) Decision of Copyright Royalty Judge.--Not later than 6 months
after the date of publication of the notice in the Federal Register
initiating a proceeding under this chapter, the Copyright Royalty Judge
shall issue his or her determination in the proceeding, except that the
Copyright Royalty Judge may extend that 6-month period to 1 year for
that proceeding if the Copyright Royalty Judge determines such
extension to be necessary. The Copyright Royalty Judge's determination
shall be accompanied by the written record, and shall set forth the
facts that the Copyright Royalty Judge found relevant to his or her
determination. The Librarian of Congress shall cause such determination
to be published in the Federal Register. The Librarian shall also
publicize the determination in such other manner as the Librarian
considers appropriate, including, but not limited to, publication on
the official website of the Copyright Office. The Librarian shall also
make the determination and the accompanying record available for public
inspection and copying.
``(d) Judicial Review.--Any determination of the Copyright Royalty
Judge under subsection (c) may, within 30 days after the publication of
the determination in the Federal Register, be appealed, by any
aggrieved party who would be bound by the determination, to the United
States Court of Appeals for the District of Columbia Circuit. If no
appeal is brought within that 30-day period, the determination of the
Copyright Royalty Judge is 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 the determination of the Copyright Royalty
Judge. When this title provides that the royalty rates or terms that
were previously in effect are to expire on a specified date, any
adjustment by the Copyright Royalty Judge of those rates or terms shall
be effective as of the day following the date of expiration of the
rates or terms that were previously in effect, even if the Copyright
Royalty Judge's determination is rendered on a later date. The pendency
of an appeal under this paragraph 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 to
deposit the statement of account and royalty fees specified in those
sections. The court shall have jurisdiction to modify or vacate a
determination of the Copyright Royalty Judge only if it finds, on the
basis of the record before the Copyright Royalty Judge, that the
Copyright Royalty Judge acted in an arbitrary or capricious manner. If
the court modifies the determination of the Copyright Royalty Judge,
the court shall have jurisdiction to enter its own determination with
respect to the amount or distribution of royalty fees and costs, to
order the repayment of any excess fees, and to order the payment of any
underpaid fees, and the interest pertaining respectively thereto, in
accordance with its final judgment. The court may further vacate the
determination of the Copyright Royalty Judge and remand the case to the
Copyright Royalty Judge for proceedings in accordance with subsection
(a).
``(e) Administrative Matters.--
``(1) Deduction of costs of library of congress and
copyright office from royalty fees.--
``(A) Deduction from filing fees and royalty
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 Library of Congress, the
Copyright Office, and the Copyright Royalty Judge in
conducting that proceeding, other than the salaries of
the Copyright Royalty Judge and the two professional
staff members appointed under section 802(b). To the
extent that such costs exceed the amount of such filing
fees, the Librarian of Congress may, after making the
deduction from such filing fees, deduct the balance of
such costs from not more than 1 percent of the royalty
fees deposited or collected under this title that
relate to that proceeding. Such deduction may be made
before the fees are distributed to any copyright
claimants.
``(B) Remaining costs.--Any costs described in
subparagraph (A) that remain after the deductions under
subparagraph (A)--
``(i) in ratemaking proceedings, shall be
borne by the parties to the proceedings in
equal proportions; and
``(ii) in distribution proceedings, shall
be borne by the parties to the proceedings in
equal proportions.
``(C) Appropriations.--All funds made available by
an appropriations Act as offsetting collections and
available for deductions under this subsection 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 and conclusion of proceedings
``(a) Filing of Petition.--With respect to proceedings under
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 2003, may file a
petition with the Copyright Royalty Judge declaring that the petitioner
requests a determination or adjustment of the rate. The Copyright
Royalty Judge 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
Judge determines that the petitioner has such a significant interest,
the Copyright Royalty Judge 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.
``(b) Timing of Petitions.--
``(1) Section 111 proceedings.--(A) In proceedings under
section 801(b)(1) concerning the adjustment of royalty rates
under section 111 to which subparagraph (A) or (D) of section
801(b)(3) applies, a petition described in subsection (a) may
be filed during the year 2005 and in each subsequent fifth
calendar year.
``(B) In proceedings under section 801(b)(1) concerning the
adjustment of royalty rates under section 111 to which
subparagraph (B) or (C) of section 801(b)(3) 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 2003, may file a petition with
the Copyright Royalty Judge declaring that the petitioner
requests an adjustment of the rate. The Copyright Royalty Judge
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.
``(2) Section 115 proceedings.--In proceedings under
section 801(b)(1) or (2) concerning the adjustment or
determination of royalty rates as provided in section 115, a
petition described in paragraph (1) may be filed in the year
2007 and in each subsequent fifth calendar year or as
prescribed in section 115(c)(3)(B), (C), or (D).
``(3) Section 116 proceedings.--(A) In proceedings under
section 801(b)(2) concerning the determination of royalty rates
and terms as provided in section 116, a petition described in
paragraph (1) 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 Judge 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 Judge, 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).
``(4) Section 112 and 114.--With respect to proceedings
under section 801(b)(2) concerning the determination of
reasonable terms and rates of royalty payments as provided in
section 112 or 114, the Librarian of Congress and the Copyright
Royalty Judge shall proceed when and as provided by those
sections.
``(5) Section 118 proceedings.--With respect to proceedings
under section 801(b)(2) concerning the determination of
reasonable terms and rates of royalty payments as provided in
section 118, the Librarian of Congress and the Copyright
Royalty Judge shall proceed when and as provided by that
section.
``(6) Proceedings concerning distribution of royalty
fees.--With respect to proceedings under section 801(b)(5)
concerning the distribution of royalty fees in certain
circumstances under section 111, 116, 119, or 1007, the
Copyright Royalty Judge 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.''.
(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 OF COPYRIGHT ROYALTY JUDGE................. 801''.
SEC. 4. DEFINITION.
Section 101 is amended by inserting after the definition of
``copies'' the following:
``The `Copyright Royalty Judge' is the 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)(4) is amended--
(1) in subparagraph (B)--
(A) by striking ``Librarian of Congress shall, upon
the recommendation of the Register of Copyrights,'' and
inserting ``Copyright Royalty Judge shall'';
(B) by striking ``Librarian'' each subsequent place
it appears and inserting ``Copyright Royalty Judge'';
and
(C) by striking ``convene a copyright arbitration
royalty panel'' and inserting ``conduct a proceeding'';
and
(2) in subparagraph (C), by striking ``Librarian of
Congress'' and inserting ``Copyright Royalty Judge''.
(b) Ephemeral Recordings.--Section 112(e) is amended--
(1) in paragraph (3), by amending the first sentence to
read as follows: ``During the first week of January 2007, the
Librarian of Congress shall cause notice to be published in the
Federal Register of the initiation of voluntary negotiation
proceedings for the purpose of determining reasonable terms and
rates of royalty payments for the activities specified by
paragraph (1) during the period beginning on January 1, 2007,
and ending on December 31, 2011, or such other date as the parties may
agree.'';
(2) in paragraph (4)--
(A) by amending the first sentence to read as
follows: ``In the absence of license agreements
negotiated under paragraph (2), during the 60-day
period beginning on the date that is 6 months after
publication of the notice specified in paragraph (3),
and upon the filing of a petition in accordance with
section 804(a), the Copyright Royalty Judge 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 date as the parties may
agree.'';
(B) by striking ``copyright arbitration royalty
panel'' each subsequent place it appears and inserting
``Copyright Royalty Judge''; and
(C) in the fourth sentence, by striking ``its
decision'' and inserting ``his or her decision'';
(3) in paragraph (5), by striking ``or decision by the
Librarian of Congress'' and inserting ``, decision by Librarian
of Congress, or determination by the Copyright Royalty Judge'';
and
(4) in paragraph (6)--
(A) in the first sentence, by striking ``January
2000, and at 2-year'' and inserting ``January 2012, and
at 5-year'';
(B) in the second sentence--
(i) by striking ``803(a)(1)'' and inserting
``804(a)''; and
(ii) by striking ``July 1, 2000, and at 2-
year'' and inserting ``July 1, 2012, and at 5-
year''; and
(C) in the last sentence, by striking ``802'' and
inserting ``803''.
(c) Scope of Exclusive Rights in Sound Recordings.--Section 114(f)
is amended--
(1) in paragraph (1)--
(A) in subparagraph (A), by amending the first
sentence to read as follows: ``During the first week of
January 2006, the Librarian of Congress shall cause
notice to be published in the Federal Register of the
initiation of voluntary negotiation proceedings for the
purpose of determining reasonable terms and rates of
royalty payments for subscription transmissions by
preexisting subscription services and transmissions by
preexisting satellite digital audio radio services
specified by subsection (d)(2) during the period
beginning on January 1, 2006, and ending on December
31, 2010, or such other date as the parties may
agree.'';
(B) in subparagraph (B)--
(i) by amending the first sentence to read
as follows: ``In the absence of license
agreements negotiated under subparagraph (A),
during the 60-day period beginning on the date
that is 6 months after publication of the
notice specified in subparagraph (A), and upon
the filing of a petition in accordance with
section 804(a), the Copyright Royalty Judge
shall commence proceedings 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.''; and
(ii) by striking ``copyright arbitration
royalty panel'' and inserting ``Copyright
Royalty Judge''; and
(C) in subparagraph (C)--
(i) in clause (i)(II), by striking ``2001''
and inserting ``2011'';
(ii) in clause (ii)--
(I) by striking ``803(a)(1)'' and
inserting ``804(a)''; and
(II) in subclause (II), by striking
``2001'' and inserting ``2011''; and
(iii) in clause (iii), by striking ``802''
and inserting ``803'';
(2) in paragraph (2)--
(A) in subparagraph (A), by amending the first
sentence to read as follows: ``During the first week of
January 2007, the Librarian of Congress shall cause
notice to be published in the Federal Register of the
initiation of voluntary negotiation proceedings for the
purpose of determining reasonable terms and rates of
royalty payments for public performances of sound
recordings by means of eligible nonsubscription
transmissions and transmissions by new subscription
services specified by subsection (d)(2) during the
period beginning on January 1, 2007, and ending on
December 31, 2011, or such other date as the parties
may agree.'';
(B) in subparagraph (B)--
(i) by amending the first sentence to read
as follows: ``In the absence of license
agreements negotiated under subparagraph (A),
during the 60-day period beginning on the date
that is 6 months after publication of the
notice specified in subparagraph (A), and upon
the filing of a petition in accordance with
section 804(a), the Copyright Royalty Judge
shall commence proceedings 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 beginning
on January 1, 2007, and ending on December 31,
2011, or such other date as the parties may
agree.''; and
(ii) by striking ``copyright arbitration
royalty panel'' each subsequent place it
appears and inserting ``Copyright Royalty
Judge'';
(C) in subparagraph (C)--
(i) in clause (i)(II), by striking
``January 2000, and at 2-year'' and inserting
``January 2012, and at 5-year'';
(ii) in clause (ii)--
(I) by striking ``803(a)(1)'' and
inserting ``804(a)''; and
(II) in subclause (II), by striking
``July 1, 2000, and at 2-year'' and
inserting ``July 1, 2012, and at 5-
year''; and
(iii) in clause (iii), by striking ``802''
and inserting ``803''; and
(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 Judge''.
(d) Phonorecords of Nondramatic Musical Works.--Section 115(c)(3)
is amended--
(1) in subparagraph (C), by amending the first sentence to
read as follows: ``During the period of June 30, 2006, through
December 31, 2006, the Librarian of Congress shall cause notice to be
published in the Federal Register of the initiation of voluntary
negotiation proceedings for the purpose of determining reasonable terms
and rates of royalty payments for the activities specified by
subparagraph (A) during the period beginning January 1, 2008, and
ending on the effective date of any new terms and rates established
pursuant to this subparagraph or subparagraph (D) or (F), or such other
date (regarding digital phonorecord deliveries) as the parties may
agree.'';
(2) 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), upon the
filing of a petition in accordance with section 804(a),
the Copyright Royalty Judge shall commence proceedings
pursuant to chapter 8 to determine and publish in the
Federal Register a schedule or rates and terms which,
subject to subparagraph (E), shall be binding on all
copyright owners of nondramatic musical works and
persons entitled to obtain a compulsory license under
subsection (a)(1) during the period beginning January
1, 2008, and ending on the effective date of any new
terms and rates established pursuant to subparagraph
(C) or (F) or this subparagraph, or such other date
(regarding digital phonorecord deliveries) as may be
determined pursuant to subparagraphs (B) and (C).'';
and
(B) in the second sentence, by striking ``copyright
arbitration royalty panel'' and inserting ``Copyright
Royalty Judge'';
(3) in subparagraph (E)(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 Judge''; and
(4) in subparagraph (F), by striking ``1997'' and inserting
``2007''.
(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
Judge''; and
(B) by striking ``a copyright arbitration royalty
panel'' and inserting ``the Copyright Royalty Judge''.
(f) Use of Certain Works in Connection With Noncommercial
Broadcasting.--Section 118 is amended--
(1) in subsection (b)--
(A) in paragraph (1), by striking the second and
third sentences;
(B) in paragraph (2), by striking ``the Librarian
of Congress: Provided, That'' and inserting ``a
copyright arbitration royalty panel, the Librarian of
Congress, or the Copyright Royalty Judge, if''; and
(C) in paragraph (3)--
(i) by amending the first sentence to read
as follows: ``In the absence of license
agreements negotiated under paragraph (2), the
Copyright Royalty Judge 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 Librarian of Congress.''; and
(ii) in the second sentence, by striking
``copyright arbitration royalty panel'' and
inserting ``Copyright Royalty Judge'';
(2) in subsection (c), by striking ``1997'' and inserting
``2007''; and
(3) in subsection (d), by striking ``a copyright
arbitration royalty panel'' and inserting ``the Copyright
Royalty Judge''.
(g) Secondary Transmissions by Satellite Carriers.--Section
119(b)(4) is amended--
(1) in subparagraph (A), by striking ``Librarian of
Congress'' the first place it appears and inserting ``Copyright
Royalty Judge''; and
(2) 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 Judge shall determine
whether there exists a controversy concerning the
distribution of royalty fees. If the Copyright Royalty
Judge determines that no such controversy exists, the
Copyright Royalty Judge 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 Judge finds the existence of a
controversy, the Copyright Royalty Judge 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 Judge shall withhold
from distribution an amount sufficient to satisfy all
claims with respect to which a controversy exists, but
shall have discretion to proceed to distribute any
amounts that are not in controversy.''.
(h) Digital Audio Recording Devices.--
(1) Royalty payments.--Section 1004(a)(3) is amended by
amending the third sentence to read as follows: ``Not more than
once each year, any interested copyright party may petition the
Copyright Royalty Judge to increase the royalty maximum and, if
more than 20 percent of the royalty payments are at the
relevant royalty maximum, the Copyright Royalty Judge shall
prospectively increase such royalty maximum with the goal of
having no more than 10 percent of such payments at the new
royalty maximum; however the amount of any such increase as a
percentage of the royalty maximum shall in no event exceed the
percentage increase in the Consumer Price Index during the
period under review.''.
(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 Judge''.
(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 Judge a
claim for payments collected during the preceding year in such
form and manner as the Librarian of Congress 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 Judge shall determine whether there
exists a controversy concerning the distribution of royalty payments
under section 1006(c). If the Copyright Royalty Judge determines that
no such controversy exists, the copyright royalty judge 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 and the Copyright Office under this section.
``(c) Resolution of Disputes.--If the Copyright Royalty Judge finds
the existence of a controversy, the Copyright Royalty Judge 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 Judge 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 and the Copyright Office 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 Judge 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 Judge requesting the
commencement of a proceeding. Within 2 weeks after receiving such a
petition, the Librarian of Congress 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 Judge shall conduct a
proceeding with respect to the matter concerned, in accordance with
such procedures as the Copyright Royalty Judge may adopt. The Copyright
Royalty Judge 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 Judge. The parties to the proceeding
shall bear the entire cost thereof in such manner and proportion as the
Copyright Royalty Judge shall direct.
``(e) Judicial Review.--Any determination of the Copyright Royalty
Judge 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 Judge. If the court modifies the
determination of the Copyright Royalty Judge, 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 Judge 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. TRANSITION PROVISIONS.
(a) In General.--Subject to subsection (b), the amendments made by
this Act shall not affect any proceedings commenced 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.
(b) Effective Periods for Certain Ratemaking Proceedings.--
Notwithstanding subsection (a), terms and rates determined under
proceedings under section 114(f)(2) or 112(e) of title 17, United
States Code, commenced in 2002 shall be effective for an additional
period of 3 years, or until such later date as the parties may agree,
in lieu of the 2-year period otherwise provided for under such
sections.
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