1.This Act may be cited as the
Performance Rights
Act
.
2.Establishing equitable
treatment for terrestrial, cable, satellite, and internet services
(a)Performance right
applicable to radio transmissions generallySection 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 rightSection
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
systemSection 114(j)(6) of title 17, United States Code, is
amended by striking digital
.
(d)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) 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)(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(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
.
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)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)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 musicSection 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;
.
4.Availability of per
program licenseSection
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.
5.No harmful effects on
songwriters
(a)No adverse affect on
license fees for underlying musical works; Necessity for other
licenses
(1)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 worksLicense 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
licensesNotwithstanding 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)Section
114(d)(3)(C) of title 17, United States Code, is hereby repealed.
(b)Public performance
rights and royaltiesNothing 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
stationsSection 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.
.
6.Payment of certain
royaltiesSection 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.
.
7.No effect on local
communitiesSection 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.
.
8.Preservation of
diversitySection 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
diversityThe 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.
.
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