[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5361 Introduced in House (IH)]







109th CONGRESS
  2d Session
                                H. R. 5361

   To harmonize rate setting standards for copyright licenses under 
  sections 112 and 114 of title 17, United States Code, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 11, 2006

 Mr. Berman (for himself and Mrs. Bono) introduced the following bill; 
          which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To harmonize rate setting standards for copyright licenses under 
  sections 112 and 114 of title 17, United States Code, 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 ``Platform Equality and Remedies for 
Rights Holders in Music Act of 2006'' or the ``Perform Act of 2006'' .

SEC. 2. RATE SETTING STANDARDS.

    (a) Section 112 Licenses.--Section 112(e)(4) of title 17, United 
States Code, is amended in the third sentence by striking ``fees that 
would have been negotiated in the marketplace between a willing buyer 
and a willing seller'' and inserting ``the fair market value of the 
rights licensed under this subsection''.
    (b) Section 114 Licenses.--Section 114(f) of title 17, United 
States Code, is amended--
            (1) by striking paragraph (1);
            (2) by redesignating paragraphs (2), (3), (4), and (5) as 
        paragraphs (1), (2), (3), and (4), respectively; and
            (3) in paragraph (1) (as redesignated under this 
        subsection)--
                    (A) in subparagraph (A), by striking all after 
                ``Proceedings'' and inserting ``under chapter 8 shall 
                determine reasonable rates and terms of royalty 
                payments for eligible transmissions during the 5-year 
                period beginning on January 1 of the second year 
                following the year in which the proceedings are to be 
                commenced, and on January 1 of every 5-year period 
                thereafter, except when a different transitional period 
                is provided under section 6(b)(3) of the Copyright 
                Royalty and Distribution Reform Act of 2004, or such 
                other period as the parties may agree.'';
                    (B) in subparagraph (B)--
                            (i) in the first sentence, by striking 
                        ``affected by this paragraph'' and inserting 
                        ``under this section'';
                            (ii) in the second sentence, by striking 
                        ``nonsubscription''; and
                            (iii) in the third sentence--
                                    (I) by striking ``transmissions by 
                                eligible nonsubscription services and 
                                new subscription'' and inserting 
                                ``eligible transmission''; and
                                    (II) by striking ``rates and terms 
                                that would have been negotiated in the 
                                marketplace between a willing buyer and 
                                a willing seller'' and inserting ``the 
                                fair market value of the rights 
                                licensed under this section'';
                            (iv) in the fourth sentence, by striking 
                        ``base its'' and inserting ``base their'';
                            (v) in clause (i), by striking ``and'' 
                        after the semicolon;
                            (vi) in clause (ii), by striking the period 
                        and inserting ``; and'';
                            (vii) by inserting after clause (ii) the 
                        following:
                            ``(iii) the degree to which reasonable 
                        recording affects the potential market for 
                        sound recordings, and the additional fees that 
                        are required to be paid by services for 
                        compensation.''; and
                            (viii) in the matter following clause (ii), 
                        by striking ``described in subparagraph (A)''; 
                        and
                    (C) by striking subparagraph (C) and inserting the 
                following:
            ``(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 transmitting entity 
        indicating that a new type of 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 that 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 services, eligible nonsubscription 
        services, or new subscription 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.
            ``(D) In this paragraph, the term `eligible transmission' 
        means--
                    ``(i) subscription transmissions by preexisting 
                subscription services;
                    ``(ii) subscription transmissions by preexisting 
                satellite digital audio radio services;
                    ``(iii) eligible nonsubscription transmissions; and
                    ``(iv) transmissions by new subscription 
                services.''.
    (c) Content Protection.--Section 114(d)(2) of title 17, United 
States Code, is amended--
            (1) in subparagraph (A)--
                    (A) in clause (ii), by striking ``and'' after the 
                semicolon;
                    (B) in clause (iii), by adding ``and'' after the 
                semicolon; and
                    (C) by adding after clause (iii) the following:
                            ``(iv) the transmitting entity takes no 
                        affirmative steps to authorize, enable, cause, 
                        or induce the making of a copy or phonorecord 
                        by or for the transmission recipient and uses 
                        technology that is reasonably available, 
                        technologically feasible, and economically 
                        reasonable to prevent the making of copies or 
                        phonorecords embodying the transmission, in 
                        whole or in part, except for reasonable 
                        recording as defined in subsection (j)(10);'';
            (2) in subparagraph (C)--
                    (A) by striking clause (vi); and
                    (B) by redesignating clauses (vii) through (ix) as 
                clauses (vi) through (viii), respectively; and
            (3) by adding at the end the following:
``For purposes of subparagraph (A)(iv), the mere offering of a 
transmission and accompanying metadata does not in itself enable the 
making of a copy or phonorecord. Nothing in subparagraph (A)(iv) shall 
preclude or prevent a performing rights society or a mechanical rights 
organization, or any entity owned in whole or in part by, or acting on 
behalf of, such organizations, from monitoring public performances or 
other uses of copyrighted works contained in such transmissions. Any 
such organization or entity shall be granted a license on either a 
gratuitous basis or for a de minimus fee to cover only the reasonable 
costs to the licensor of providing the license, and on reasonable, 
nondiscriminatory terms, to access and retransmit as necessary any 
content contained in such transmissions protected by content protection 
or similar technologies, if such licenses are for purposes of carrying 
out the activities of such organizations or entities in monitoring the 
public performance or other uses of copyrighted works, and such 
organizations or entities employ reasonable methods to protect any such 
content accessed from further distribution.''.
    (d) Definition.--Section 114(j) of title 17, United States Code, is 
amended--
            (1) by redesignating paragraphs (10) through (15) as 
        paragraphs (11) through (16), respectively; and
            (2) by inserting after paragraph (9) the following:
            ``(10)(A) A `reasonable recording' means the making of a 
        copy or phonorecord of a performance licensed under this 
        section for private, noncommercial use if technological 
        measures used by the transmitting entity and incorporated into 
        a recording device--
                    ``(i) permit automated recording or playback based 
                on specific programs, time periods, or channels as 
                selected by or for the user;
                    ``(ii) do not permit automated recording or 
                playback based on specific sound recordings, albums, or 
                artists;
                    ``(iii) do not permit the separation of component 
                segments of the copyrighted material contained in the 
                transmission program which results in the playback of a 
                manipulated sequence; and
                    ``(iv) do not permit the redistribution, 
                retransmission, or other exporting of a phonorecord 
                embodying all or part of a performance licensed under 
                this section from the device by digital outputs or 
                removable media, unless the destination device is part 
                of a secure in-home network that also complies with 
                this paragraph.
            ``(B) Nothing in this paragraph prevents a consumer from 
        engaging in non-automated manual recording and playback in a 
        manner that is not an infringement of copyright.''.
    (e) Technical and Conforming Amendments.--
            (1) Section 114.--Section 114(f) of title 17, United States 
        Code (as amended by subsection (b) of this section), is further 
        amended--
                    (A) in paragraph (1)(B), in the first sentence, by 
                striking ``paragraph (3)'' and inserting ``paragraph 
                (2)''; and
                    (B) in paragraph (4)(C), by striking ``under 
                paragraph (4)'' and inserting ``under paragraph (3)''.
            (2) Chapter 8.--(A) Section 801(b) of title 17, United 
        States Code, is amended--
                    (i) in paragraph (1), by striking ``114(1)(B), 
                115,'' and inserting ``115''; and
                    (ii) in paragraph (7)(B), by striking ``114(f)(3)'' 
                and inserting ``114(f)(2)''.
            (B) Section 803(c)(2)(E)(i)(II) of title 17, United States 
        Code, is amended--
                    (i) by striking ``or 114(f)(2)(C)''; and
                    (ii) by striking ``114(f)(4)(B)'' and inserting 
                ``114(f)(3)(B)''.
            (C) Section 804(b)(3)(C) of title 17, United States Code, 
        is amended--
                    (i) in clause (i), by striking ``and 
                114(f)(2)(C)''; and
                    (ii) in clause (iv), by striking ``or 114(f)(2)(C), 
                as the case may be''.

SEC. 3. REGISTER OF COPYRIGHTS MEETING AND REPORT.

    (a) Meeting.--Not later than 60 days after the Copyright Royalty 
Judges make their final determination in Docket No. 2005-1 CRB DTRA, 
the Register of Copyrights shall convene a meeting among affected 
parties to discuss whether to recommend creating a new category of 
limited interactive services, including an appropriate premium rate for 
such services, within the statutory license contained in section 114 of 
title 17, United States Code.
    (b) Report.--Not later than 90 days after the convening of the 
meeting under subsection (a), the Register of Copyrights shall submit a 
report on the discussions at that meeting to the Committee on the 
Judiciary of the Senate and the Committee on the Judiciary of the House 
of Representatives.
                                 <all>