[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 848 Reported in House (RH)]

                                                 Union Calendar No. 405
111th CONGRESS
  2d Session
                                H. R. 848

                          [Report No. 111-680]

 To provide parity in radio performance rights under title 17, United 
                  States Code, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            February 4, 2009

  Mr. Conyers (for himself, Mr. Issa, Mr. Berman, Mrs. Blackburn, Mr. 
Hodes, Ms. Wasserman Schultz, Mr. Weiner, Mr. Cohen, Mr. Nadler of New 
York, Mr. Wexler, Mr. Peterson, Mr. Johnson of Georgia, Mr. Schiff, Mr. 
Sherman, Mr. Shadegg, Ms. Jackson-Lee of Texas, Ms. Linda T. Sanchez of 
California, Ms. Harman, and Mr. Waxman) introduced the following bill; 
          which was referred to the Committee on the Judiciary

                           December 14, 2010

Additional sponsors: Ms. Slaughter, Mr. Cooper, Mr. Higgins, Mr. Polis 
 of Colorado, Mr. Moran of Virginia, Mrs. Capps, Mr. Tonko, Mr. Towns, 
   Mr. Holt, Mr. Rothman of New Jersey, Ms. Clarke, Mr. Israel, Mr. 
  Gutierrez, Mr. Cleaver, Mr. Thompson of Mississippi, Ms. Fudge, Mr. 
George Miller of California, Mr. Wamp, Mr. Van Hollen, Mr. Inslee, Mr. 
Crowley, Ms. Watson, Mr. Gordon of Tennessee, Ms. Eshoo, Mrs. Maloney, 
Mr. Tierney, Mr. Brady of Pennsylvania, Ms. Sutton, Mr. Garamendi, Ms. 
    Schakowsky, Ms. Woolsey, Mr. Kennedy, Mr. Deutch, and Mr. Rooney

                           December 14, 2010

Deleted sponsors: Mr. Adler of New Jersey (added March 3, 2009; deleted 
  July 30, 2009), Ms. Eddie Bernice Johnson of Texas (added March 10, 
  2009; deleted May 14, 2009), and Ms. Norton (added March 10, 2009; 
                         deleted June 11, 2009)


                           December 14, 2010

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
    [For text of introduced bill, see copy of bill as introduced on 
                           February 4, 2009]

_______________________________________________________________________

                                 A BILL


 
 To provide parity in radio performance rights under 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 ``Performance Rights Act''.

SEC. 2. ESTABLISHING EQUITABLE TREATMENT FOR TERRESTRIAL, CABLE, 
              SATELLITE, AND INTERNET SERVICES.

    (a) Performance Right Applicable to Radio Transmissions 
Generally.--Section 106(6) of title 17, United States Code, is amended 
to read as follows:
            ``(6) in the case of sound recordings, to perform the 
        copyrighted work publicly by means of an audio transmission.''.
    (b) Inclusion of Terrestrial Broadcasts in Existing Performance 
Right.--Section 114(d)(1) of title 17, United States Code, is amended--
            (1) in the matter preceding subparagraph (A), by striking 
        ``a digital'' and inserting ``an''; and
            (2) by striking subparagraph (A).
    (c) Inclusion of Terrestrial Broadcasts in Existing Statutory 
License System.--Section 114(j)(6) of title 17, United States Code, is 
amended by striking ``digital''.
    (d) Ensuring Platform Parity.--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--
                    (A) in subparagraph (A), by striking ``under 
                chapter 8'' and all that follows through the end of the 
                third sentence and inserting ``under chapter 8 shall 
                determine reasonable rates and terms of royalty 
                payments for transmissions subject to statutory 
                licensing under subsection (d)(2) during 5-year periods 
                beginning on January 1 of the second year following the 
                year in which the proceedings are to be commenced, 
                except in the case of a different transitional period 
                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 second sentence, by striking 
                        ``eligible nonsubscription transmission''; and
                            (ii) in the third sentence, by striking 
                        ``eligible nonsubscription services and new 
                        subscription'' and all that follows through 
                        ``subparagraph (A)'' and inserting ``services, 
                        in addition to the objectives set forth in 
                        subparagraphs (A), (B), and (C) of section 
                        801(b)(1), the Copyright Royalty Judges may 
                        consider the rates and terms for comparable 
                        types of services and comparable circumstances 
                        under voluntary license agreements. 
                        Notwithstanding section 801(b)(1), the 
                        provisions of section 801(b)(1)(D) shall not be 
                        taken into account by the Copyright Royalty 
                        Judges in any proceeding under this section'';
                    (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 owner 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 services most 
                recently determined under subparagraph (A) or (B) and 
                chapter 8 expire, or such other period as the parties 
                may agree.''.
    (e) Technical and Conforming Amendments.--
            (1) Section 114(f).--Section 114(f) of title 17, United 
        States Code (as amended by subsection (d)), 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 114(j).--Section 114(j)(6) of title 17, United 
        States Code, is amended by striking ``retransmissions of 
        broadcast transmissions'' and inserting ``broadcast 
        transmissions and retransmissions of broadcast transmissions''.
            (3) Section 804.--Section 804(b)(3)(C) of title 17, United 
        States Code, is amended--
                    (A) in clause (i), by striking ``and 
                114(f)(2)(C)'';
                    (B) in clause (iii)(II), by striking 
                ``114(f)(4)(B)(ii)'' and inserting 
                ``114(f)(3)(B)(ii)''; and
                    (C) in clause (iv), by striking ``or 114(f)(2)(C), 
                as the case may be''.

SEC. 3. TREATMENT FOR MINORITY, FEMALE, RELIGIOUS, RURAL, SMALL, 
              NONCOMMERCIAL, PUBLIC, EDUCATIONAL, AND COMMUNITY 
              STATIONS AND CERTAIN USES.

    (a) Minority, Female, Religious, Rural, Small, Noncommercial, 
Public, Educational, and Community Radio Stations.--
            (1) In general.--Section 114(f)(1) of title 17, United 
        States Code, as redesignated by section 2(d), is amended by 
        adding at the end the following:
                    ``(D)(i) Notwithstanding the provisions of 
                subparagraphs (A) through (C), each individual 
                terrestrial broadcast station that has gross revenues 
                within a range specified in clause (ii) may elect to 
                pay for its over-the-air nonsubscription broadcast 
                transmissions a royalty fee as provided in clause (ii), 
                in lieu of the amount such station would otherwise be 
                required to pay under this paragraph. Such royalty fee 
                shall not be taken into account in determining royalty 
                rates in a proceeding under chapter 8, or in any other 
                administrative, judicial, or other Federal Government 
                proceeding.
                    ``(ii) As provided in clause (i), each individual 
                terrestrial broadcast station that has gross revenues 
                in any calendar year of--
                            ``(I) less than $100,000 may elect to pay 
                        for its over-the-air nonsubscription broadcast 
                        transmissions a royalty fee of $500 per year;
                            ``(II) at least $100,000 but less than 
                        $500,000 may elect to pay for its over-the-air 
                        nonsubscription broadcast transmissions a 
                        royalty fee of $2,500 per year; and
                            ``(III) at least $500,000 but less than 
                        $1,250,000 may elect to pay for its over-the-
                        air nonsubscription broadcast transmissions a 
                        royalty fee of $5,000 per year.
                    ``(E)(i) Notwithstanding the provisions of 
                subparagraphs (A) through (C), each individual 
                terrestrial broadcast station that is a public 
                broadcasting entity as defined in section 118(f) and 
                that has gross revenues within a range specified in 
                clause (ii) may elect to pay for its over-the-air 
                nonsubscription broadcast transmissions a royalty fee 
                as provided in clause (ii), in lieu of the amount such 
                station would otherwise be required to pay under this 
                paragraph. Such royalty fee shall not be taken into 
                account in determining royalty rates in a proceeding 
                under chapter 8, or in any other administrative, 
                judicial, or other Federal Government proceeding.
                    ``(ii) As provided in clause (i), each individual 
                terrestrial broadcast station that is a public 
                broadcasting entity as defined in section 118(f) and 
                has gross receipts in any calendar year of--
                            ``(I) less than $100,000 may elect to pay 
                        for its over-the-air nonsubscription broadcast 
                        transmissions a royalty fee of $500 per year; 
                        and
                            ``(II) $100,000 or more may elect to pay 
                        for its over-the-air nonsubscription broadcast 
                        transmissions a royalty fee of $1,000 per year.
                    ``(F) Notwithstanding the provisions of 
                subparagraphs (A) through (E), each individual 
                terrestrial broadcast station that had total gross 
                revenues during the 4 full calendar quarters 
                immediately preceding the date of enactment of the 
                Performance Rights Act of--
                            ``(i) less than $5,000,000 shall not be 
                        required to pay a royalty under this paragraph 
                        during the 3 years immediately following the 
                        date of enactment of the Performance Rights 
                        Act; and
                            ``(ii) $5,000,000 or more shall not be 
                        required to pay a royalty under this paragraph 
                        during the 1 year immediately following the 
                        date of enactment of the Performance Rights 
                        Act.
                The provisions of this subparagraph shall not be taken 
                into account in determining royalty rates in a 
                proceeding under chapter 8, or in any other 
                administrative, judicial, or other Federal Government 
                proceeding.''.
            (2) Payment date.--A payment under subparagraph (D) or (E) 
        of section 114(f)(1) of title 17, United States Code, as added 
        by paragraph (1), shall not be due until the due date of the 
        first royalty payments for nonsubscription broadcast 
        transmissions that are determined, after the date of the 
        enactment of this Act, under such section 114(f)(2) by reason 
        of the amendment made by section 2(b)(2) of this Act.
    (b) Transmission of Religious Services; Incidental Uses of Music.--
Section 114(d)(1) of title 17, United States Code, as amended by 
section 2(b), is further amended by inserting the following before 
subparagraph (B):
                    ``(A) an eligible nonsubscription transmission of--
                            ``(i) services at a place of worship or 
                        other religious assembly; and
                            ``(ii) an incidental use of a musical sound 
                        recording;''.

SEC. 4. AVAILABILITY OF PER PROGRAM LICENSE.

    Section 114(f)(1)(B) of title 17, United States Code, as 
redesignated by section 2(d), is amended by inserting after the second 
sentence the following new sentence: ``Such rates and terms shall 
include a per program license option for terrestrial broadcast stations 
that make limited feature uses of sound recordings.''

SEC. 5. NO HARMFUL EFFECTS ON SONGWRITERS.

    (a) No Adverse Affect on License Fees for Underlying Musical Works; 
Necessity for Other Licenses.--
            (1) In general.--Section 114(i) of title 17, United States 
        Code, is amended to read as follows:
    ``(i) No Adverse Affect on License Fees for Underlying Musical 
Works; Necessity for Other Licenses.--
            ``(1) No adverse affect on license fees for underlying 
        musical works.--License fees payable for the public performance 
        of sound recordings under section 106(6) shall not be cited, 
        taken into account, or otherwise used in any administrative, 
        judicial, or other governmental forum or proceeding, or 
        otherwise, to set or adjust the license fees payable to 
        copyright owners of musical works or their representatives for 
        the public performance of their works, for the purpose of 
        reducing or adversely affecting such license fees. License fees 
        payable to copyright owners for the public performance of their 
        musical works shall not be reduced or adversely affected in any 
        respect as a result of the rights granted by section 106(6).
            ``(2) Necessity for other licenses.--Notwithstanding the 
        grant by an owner of copyright in a sound recording of an 
        exclusive or nonexclusive license of the right under section 
        106(6) to perform the work publicly, a licensee of that sound 
        recording may not publicly perform such sound recording unless 
        a license has been granted for the public performance of any 
        copyrighted musical work contained in the sound recording. Such 
        license to publicly perform the copyrighted musical work may be 
        granted either by a performing rights society representing the 
        copyright owner or by the copyright owner.''.
            (2) Conforming amendment.--Section 114(d)(3)(C) of title 
        17, United States Code, is hereby repealed.
    (b) Public Performance Rights and Royalties.--Nothing in this Act 
or the amendments made by this Act shall adversely affect in any 
respect the public performance rights of or royalties payable to 
songwriters or copyright owners of musical works.
    (c) Preservation of Royalties on Underlying Works Publicly 
Performed by Terrestrial Broadcast Stations.--Section 114(f) of title 
17, United States Code, (as amended by section 2(d)) is further amended 
by adding at the end the following new paragraph:
            ``(5) Notwithstanding any other provision of this section, 
        under no circumstances shall the rates established by the 
        Copyright Royalty Judges for the public performance of sound 
        recordings be cited, taken into account, or otherwise used in 
        any administrative, judicial, or other governmental forum or 
        proceeding, or otherwise, to reduce or adversely affect the 
        license fees payable to copyright owners of musical works or 
        their representatives for the public performance of their works 
        by terrestrial broadcast stations, and such license fees for 
        the public performance of musical works shall be independent of 
        license fees paid for the public performance of sound 
        recordings.''.

SEC. 6. PAYMENT OF CERTAIN ROYALTIES.

    Section 114(g) of title 17, United States Code, is amended--
            (1) by amending paragraph (1) to read as follows:
            ``(1) Except in the case of a transmission to which 
        paragraph (5) applies or a transmission licensed under a 
        statutory license in accordance with subsection (f) of this 
        section, the following shall apply:
                    ``(A) A featured recording artist who performs on a 
                sound recording that has been licensed for public 
                performance by means of an audio transmission shall be 
                entitled to receive payments from the copyright owner 
                of the sound recording in accordance with the terms of 
                the artist's contract.
                    ``(B)(i) In a case in which the copyright owner of 
                a sound recording has licensed the sound recording for 
                the public performance of the sound recording by means 
                of an audio transmission, the copyright owner shall 
                deposit 1 percent of the receipts from the license with 
                the American Federation of Musicians and American 
                Federation of Television and Radio Artists Intellectual 
                Property Rights Distribution Fund (or any successor 
                entity) (in this subparagraph referred to as the 
                `Fund') to be distributed to nonfeatured performers who 
                have performed on sound recordings. The sound recording 
                copyright owner shall make such deposits for receipts 
                received during the first half of a calendar year by 
                August 15 and for receipts received during the second 
                half of a calendar year by February 15 of the following 
                calendar year.
                    ``(ii) A sound recording copyright owner shall 
                include with deposits under clause (i) information 
                regarding the amount of such deposits attributable to 
                each licensee and, subject to obtaining consent, if 
                necessary, from such licensee, for each sound recording 
                performed by means of an audio transmission by such 
                licensee during the applicable time period, and to the 
                extent included in the accounting reports provided by 
                the licensee to the sound recording copyright owner--
                            ``(I) the identity of the artist;
                            ``(II) the International Standard Recording 
                        Code of the sound recording;
                            ``(III) the title of the sound recording;
                            ``(IV) the number of times the sound 
                        recording was transmitted; and
                            ``(V) the total amount of receipts 
                        collected from that licensee.
                    ``(iii) The Fund shall make the distributions 
                described in clause (i) as follows: 50 percent shall be 
                paid to nonfeatured musicians (whether or not members 
                of the American Federation of Musicians) and 50 percent 
                shall be paid to nonfeatured vocalists (whether or not 
                members of the American Federation of Television and 
                Radio Artists). The Fund may, prior to making such 
                distributions, deduct the reasonable costs related to 
                making such distributions.
                    ``(iv) The sound recording copyright owner shall 
                not be required to provide any additional information 
                to the Fund other than what is required under this 
                subparagraph. Sound recording copyright owners shall 
                use reasonable good faith efforts to include in all 
                relevant licenses a requirement to report the 
                information identified in subclauses (I) through (V) of 
                clause (ii). Amounts required under clause (i) that are 
                not paid by the date specified in such clause shall be 
                subject to interest at the rate of 6 percent per annum 
                for each day of nonpayment after the date the payment 
                was due.'';
            (2) in paragraph (2)(A), by striking ``digital''; and
            (3) by adding at the end the following new paragraph:
            ``(5) Notwithstanding paragraph (1), to the extent that a 
        license granted by the copyright owner of a sound recording to 
        a terrestrial broadcast station extends to such station's 
        nonsubscription broadcast transmissions otherwise licensable 
        under a statutory license in accordance with subsection (f), 
        the station shall pay to the agent designated to distribute 
        statutory licensing receipts from the licensing of 
        transmissions in accordance with subsection (f), 50 percent of 
        the total royalties that the station is required to pay for 
        such transmissions under the applicable license agreement. That 
        agent shall distribute such payments in proportion to the 
        distributions provided in subparagraphs (B) through (D) of 
        paragraph (2), and such payments shall be the sole payments to 
        which featured and nonfeatured artists are entitled by virtue 
        of such transmissions under the direct license with that 
        station.''.

SEC. 7. NO EFFECT ON LOCAL COMMUNITIES.

    Section 114(f) of title 17, United States Code, (as amended by 
section 5(c)) is further amended by adding at the end the following new 
paragraph:
            ``(6) Neither this subsection nor the payment of royalties 
        by broadcasters hereunder shall affect in any respect the 
        public interest obligations of a broadcaster to its local 
        community under part 73 of title 47 of the Code of Federal 
        Regulations.''.

SEC. 8. PRESERVATION OF DIVERSITY.

    Section 114(f) of title 17, United States Code, (as amended by 
section 7) is further amended by adding at the end the following new 
paragraph:
            ``(7) Preservation of diversity.--The Copyright Royalty 
        Judges shall, in making determinations or adjustments of rates 
        and terms of copyright royalty payments for public performances 
        of sound recordings, consider evidence on the effect of such 
        rates and terms on--
                    ``(A) religious, minority-owned, female-owned, 
                small, and noncommercial broadcasters;
                    ``(B) non-music programming, including local news 
                and information programming for stations that are part 
                of station groups in which all stations within the 
                group are located in one designated market area (as 
                such term is defined in section 122(j)(2)(C)); and
                    ``(C) religious, minority or minority-owned, and 
                female or female-owned royalty recipients.''.
                                                 Union Calendar No. 405

111th CONGRESS

  2d Session

                               H. R. 848

                          [Report No. 111-680]

_______________________________________________________________________

                                 A BILL

 To provide parity in radio performance rights under title 17, United 
                  States Code, and for other purposes.

_______________________________________________________________________

                           December 14, 2010

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed