1.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
.
2.
(a)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(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 transmissions during 5-year
periods beginning on January 1 of the second year following the year in which
the proceedings are to be commenced, except where 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
eligible nonsubscription transmission
; and
(iii)in the third sentence—
(I)by striking eligible nonsubscription
services and new subscription
; 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 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, 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.
.
(c)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 this
subsection;
;
(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 authorize, enable, cause, or induce the making of a phonorecord.
Nothing 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 or entities, 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)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 phonorecord embodying all or part of a performance licensed
under this section for private, noncommercial use where technological measures
used by the transmitting entity, and which are 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 each of the requirements prescribed in this
paragraph.
(B)Nothing in this paragraph shall prevent 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(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)Section 804(b)(3)(C) of
title 17, United States Code, is amended—
(A)in clause (i), by striking and
114(f)(2)(C)
; and
(B)in clause (iv), by striking or
114(f)(2)(C), as the case may be
.
3.Register of copyrights
meeting and report
(a)Not later than 60 days after the Copyright
Royalty Board's 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)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.