[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3609 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 3609

   To adopt fair standards and procedures by which determinations of 
 Copyright Royalty Judges are made with respect to webcasting, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 21, 2012

   Mr. Wyden introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To adopt fair standards and procedures by which determinations of 
 Copyright Royalty Judges are made with respect to webcasting, 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 ``Internet Radio Fairness Act of 
2012''.

SEC. 2. APPOINTMENT OF COPYRIGHT ROYALTY JUDGES AND QUALIFICATIONS.

    Chapter 8 of title 17, United States Code, is amended--
            (1) in section 801(a)--
                    (A) in the first sentence, by striking ``Librarian 
                of Congress'' and inserting ``President of the United 
                States, by and with the advice and consent of the 
                Senate,''; and
                    (B) by striking the second sentence; and
            (2) in section 802--
                    (A) in subsection (a)(1), by striking ``Each'' and 
                all that follows through ``economics.'' and inserting 
                the following: ``Each Copyright Royalty Judge shall be 
                an attorney who has not fewer than 10 years of legal 
                experience and has significant experience in 
                adjudicating arbitrations or court trials. The Chief 
                Copyright Royalty Judge shall have not fewer than 7 
                years of experience in adjudicating court trials in 
                civil cases.''; and
                    (B) in subsection (d)--
                            (i) in paragraph (1), in the first 
                        sentence, by striking ``Librarian'' and all 
                        that follows through ``section.'' and inserting 
                        ``President of the United States shall act 
                        expeditiously to fill the vacancy.''; and
                            (ii) in paragraph (2), by striking 
                        ``Librarian of Congress'' and inserting 
                        ``President of the United States, by and with 
                        the advise and consent of the Senate,''.

SEC. 3. COMPUTATION OF ROYALTY FEES FOR INTERNET RADIO SERVICES 
              OFFERING DIGITAL PERFORMANCES OF SOUND RECORDINGS AND 
              REPORTING OBLIGATIONS.

    (a) Standard for Determining Rates and Terms; Burden of Proof.--
            (1) Ephemeral recordings.--Section 112(e) of title 17, 
        United States Code, is amended--
                    (A) in paragraph (3), by striking the second 
                sentence and inserting the following: ``Such rates may 
                include a minimum annual fee for each type of service 
                offered by the transmitting organization.'';
                    (B) in paragraph (4), by striking ``Such rates 
                shall'' and all that follows through ``paragraphs (2) 
                and (3).'' and insert the following: ``In establishing 
                rates and terms under this paragraph, the Copyright 
                Royalty Judges shall apply the objectives set forth in 
                section 801(b)(1), in accordance with subparagraphs (C) 
                and (D) of section 114(f)(1). In any proceeding under 
                this paragraph, the burden of proof shall be on the 
                copyright owners of sound recordings to establish that 
                the fees and terms that they seek satisfy the 
                requirements of this paragraph, and do not exceed the 
                fees to which most copyright owners and users would 
                agree under competitive market circumstances. To the 
                extent the Copyright Royalty Judges consider 
                marketplace benchmarks to be relevant, they shall limit 
                those benchmarks to benchmarks reflecting the rates and 
                terms that have been agreed under competitive market 
                circumstances by most copyright users.''; and
                    (C) in paragraph (5), by striking ``in lieu of 
                any'' and all that follows and inserting the following: 
                ``and be binding upon the parties to any such 
                agreements in lieu of any determination by the 
                Copyright Royalty Judges.''.
            (2) Digital sound recording performances.--Section 114(f) 
        of title 17, United States Code, is amended--
                    (A) in paragraph (1)--
                            (i) in subparagraph (A)--
                                    (I) in the first sentence--
                                            (aa) by striking 
                                        ``subscription transmissions by 
                                        preexisting subscription 
                                        services and transmissions by 
                                        preexisting satellite digital 
                                        audio radio''; and
                                            (bb) by striking ``, 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,''; and
                                    (II) by striking ``Such terms and 
                                rates'' and all that follows and 
                                inserting the following: ``Such terms 
                                and rates shall distinguish among the 
                                different types of digital audio 
                                transmission services then in operation 
                                and may take into account the different 
                                characteristics of such services, and 
                                may include a minimum annual fee of not 
                                more than $500 for each provider of 
                                services that is subject to such rates 
                                and terms, which may be the only 
                                minimum fee for such provider and may 
                                be assessed only once annually to that 
                                provider. Any copyright owners of sound 
                                recordings or any entities performing 
                                sound recordings affected by this 
                                paragraph may submit to the Copyright 
                                Royalty Judges for consideration in 
                                such rate-setting proceedings licenses 
                                covering such noninteractive sound 
                                recording performances. The parties to 
                                each proceeding shall bear their own 
                                costs.'';
                            (ii) in subparagraph (B)--
                                    (I) in the first sentence--
                                            (aa) by striking 
                                        ``paragraph (3)'' and inserting 
                                        ``paragraph (2)''; and
                                            (bb) by striking ``, a 
                                        transitional period provided 
                                        under section 6(b)(3) of the 
                                        Copyright Royalty and 
                                        Distribution Reform Act of 
                                        2004,''; and
                                    (II) by striking the second 
                                sentence and inserting the following: 
                                ``In establishing rates and terms under 
                                this paragraph, the Copyright Royalty 
                                Judges shall apply the objectives set 
                                forth in section 801(b)(1) and may also 
                                consider the rates and terms for 
                                noninteractive digital audio 
                                transmission services under voluntary 
                                license agreements described in 
                                subparagraph (A) that were entered into 
                                under competitive market circumstances. 
                                In any proceeding under this 
                                subsection, the burden of proof shall 
                                be on the copyright owners of sound 
                                recordings to establish that the fees 
                                and terms that they seek satisfy the 
                                requirements of this subsection, and do 
                                not exceed the fees to which most 
                                copyright owners and users would agree 
                                under competitive market 
                                circumstances.'';
                            (iii) by redesignating subparagraph (C) as 
                        subparagraph (E);
                            (iv) by inserting after subparagraph (B) 
                        the following:
                    ``(C)(i) In construing the objectives set forth in 
                section 801(b)(1), the Copyright Royalty Judges shall 
                take into consideration--
                            ``(I) the public's interest in both the 
                        creation of new sound recordings of musical 
                        works and in fostering online and other digital 
                        performances of sound recordings; and
                            ``(II) the income necessary to provide a 
                        reasonable return on all relevant investments, 
                        including investments in prior periods for 
                        which returns have not been earned.
                    ``(ii) To the extent the Copyright Royalty Judges 
                consider marketplace benchmarks to be relevant, the 
                Copyright Royalty Judges shall limit those benchmarks 
                to benchmarks reflecting the rates and terms that have 
                been agreed under competitive market circumstances by 
                most copyright users.
                    ``(D) In applying the objectives set forth in 
                section 801(b)(1), the Copyright Royalty Judges--
                            ``(i) shall not disfavor percentage of 
                        revenue-based fees;
                            ``(ii) shall establish license fee 
                        structures that foster competition among the 
                        licensors of sound recording performances and 
                        between sound recording performances and other 
                        programming, including per-use or per-program 
                        fees, or percentage of revenue or other fees 
                        that include carve-outs on a pro-rata basis for 
                        sound recordings the performance of which have 
                        been licensed either directly with the 
                        copyright owner or at the source, or for which 
                        a license is not necessary;
                            ``(iii) shall give full consideration for 
                        the value of any promotional benefit or other 
                        non-monetary benefit conferred on the copyright 
                        owner by the performance;
                            ``(iv) shall give full consideration to the 
                        contributions made by the digital audio 
                        transmission service to the content and value 
                        of its programming; and
                            ``(v) shall not take into account either 
                        the rates and terms provided in licenses for 
                        interactive services or the determinations 
                        rendered by the Copyright Royalty Judges prior 
                        to the enactment of the Internet Radio Fairness 
                        Act of 2012.''; and
                            (v) by amending subparagraph (E), as so 
                        redesignated, to read as follows:
                    ``(E) The procedures under subparagraph (A) may 
                also be initiated pursuant to a petition filed by any 
                copyright owners of sound recordings, or any entity 
                performing sound recordings affected by this paragraph, 
                indicating that a new type of digital audio 
                transmission service engaged in the public performance 
                of sound recordings 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 transmission 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 the most comparable digital audio 
                transmission services most recently determined under 
                subparagraph (A) and chapter 8 expire, or such other 
                period as the parties may agree.'';
                    (B) by striking paragraph (2);
                    (C) by redesignating paragraphs (3), (4), and (5) 
                as paragraphs (2), (3), and (4), respectively; and
                    (D) in paragraph (2), as so redesignated--
                            (i) by inserting ``or their authorized 
                        representatives'' after ``owners of sound 
                        recordings''; and
                            (ii) by striking ``in lieu of any'' and all 
                        that follows and inserting the following: ``and 
                        be binding upon the parties to any such 
                        agreements in lieu of any determination by the 
                        Copyright Royalty Judges.''.
            (3) Definition.--Section 114(j) of title 17, United States 
        Code, is amended--
                    (A) by redesignating paragraphs (4) through (15) as 
                paragraphs (5) through (16), respectively; and
                    (B) by inserting after paragraph (3) the following:
            ``(4) `Competitive market circumstances' are circumstances 
        in which a licensee enters into a license for the 
        noninteractive performance of sound recordings with a licensor 
        that does not possess market power resulting from the 
        aggregation of copyrights, either by a licensing collective or 
        individual copyright owners.''.
    (b) Precedential Value of Settlements.--Section 114(f)(4) of title 
17, United States Code, as so redesignated by subsection (a)(2), is 
amended--
            (1) in subparagraph (B), by striking the second sentence;
            (2) by striking subparagraphs (C) and (F);
            (3) by redesignating subparagraphs (D) and (E) as 
        subparagraphs (C) and (D), respectively; and
            (4) by adding at the end the following:
                    ``(E) The rates and terms of any settlements made 
                pursuant to the amendments made by the Webcaster 
                Settlement Act of 2009 (Public Law 111-36; 123 Stat. 
                1926) that were to expire before December 31, 2015, 
                shall be extended through December 31, 2015, according 
                to the rates and terms applicable to 2014.''.
    (c) Technical and Conforming Amendments.--Chapter 8 of title 17, 
United States Code, is amended--
            (1) in section 801(b)(7)(B), by striking ``114(f)(3)'' and 
        inserting ``114(f)(2)'';
            (2) in section 803(c)(2)(E)(i)(II)--
                    (A) by striking ``section 114(f)(1)(C) or 
                114(f)(2)(C)'' and inserting ``section 114(f)(1)(E)''; 
                and
                    (B) by striking ``section 114(f)(4)(B)'' and 
                inserting ``section 114(f)(3)(B)''; and
            (3) in section 804(b)(3)(C)--
                    (A) in clause (i), by striking ``section 
                114(f)(1)(C) and 114(f)(2)(C)'' and inserting ``section 
                114(f)(1)(E)'';
                    (B) in clause (iii)(II), by striking ``section 
                114(f)(4)(B)(ii) and (C)'' and inserting 
                ``subparagraphs (B)(ii) and (C) of section 114(f)(3)''; 
                and
                    (C) in clause (iv), by striking ``section 
                114(f)(1)(C) or 114(f)(2)(C)'' and inserting ``section 
                114(f)(1)(E)''.

SEC. 4. MODERNIZATION OF CONDITIONS GOVERNING EPHEMERAL RECORDING 
              EXEMPTION AND STATUTORY LICENSES.

    (a) Ephemeral Recording Exemption.--Section 112(a)(1) of title 17, 
United States Code, is amended by striking ``no more than'' and all 
that follows and inserting the following: ``1 or more copies or 
phonorecords embodying the performance or display, if--
                    ``(A) the copies or phonorecords are retained and 
                used solely by the transmitting organization that made 
                them, and no further copies or phonorecords are 
                reproduced from them, except as may be incidental to 
                the operation of the transmission technology used by 
                the transmitting organization; and
                    ``(B) the copies or phonorecords are used solely 
                for the transmitting organization's own transmissions 
                originating in the United States, or for purposes of 
                archival preservation or security.''.
    (b) Ephemeral Recording Statutory License.--Section 112(e)(1) of 
title 17, United States Code, is amended--
            (1) in the matter preceding subparagraph (A)--
                    (A) by striking ``or under a statutory license in 
                accordance with section 114(f)''; and
                    (B) by striking `` if the following conditions are 
                satisfied:'' and inserting ``if--'';
            (2) in subparagraph (A)--
                    (A) by striking ``The'' and inserting ``the''; and
                    (B) by striking the period at the end and inserting 
                ``, except as may be incidental to the operation of the 
                transmission technology used by the transmitting 
                organization;'';
            (3) in subparagraph (B)--
                    (A) by striking ``The'' and inserting ``the'';
                    (B) by striking ``a statutory license in accordance 
                with section 114(f) or''; and
                    (C) by striking the period at the end and inserting 
                ``, or for purposes of archival preservation or 
                security; and'';
            (4) by striking subparagraph (C);
            (5) by redesignating subparagraph (D) as subparagraph (C); 
        and
            (6) in subparagraph (C), as so redesignated, by striking 
        ``Phonorecords'' and inserting ``phonorecords''.
    (c) Sound Recording Performance Statutory License.--Section 
114(d)(2)(C) of title 17, United States Code, is amended--
            (1) in clause (i), by striking ``of a broadcast 
        transmission'' and all that follows and inserting the 
        following: ``or simultaneous transmission of a broadcast 
        transmission in any medium, which may include programming 
        substituted for programming contained in the broadcast 
        transmission with respect to which the transmitting entity 
        lacks the requisite licenses or clearances to make the 
        transmission in the medium, or for advertisements contained in 
        the broadcast transmission, or the transmission of any 
        programming previously included in a broadcast transmission as 
        an archived program in conformance with clause (iii);'';
            (2) by striking clause (ii) and inserting the following:
                                            ``(ii) the transmitting 
                                        entity does not cause to be 
                                        published in writing by means 
                                        of an advance program schedule 
                                        the titles of the specific 
                                        sound recordings or 
                                        phonorecords embodying such 
                                        sound recordings to be 
                                        transmitted at particular 
                                        times, except that this clause 
                                        does not disqualify a 
                                        transmitting entity that 
                                        publishes in writing--

                                                    ``(AA) such a 
                                                program schedule that 
                                                identifies sound 
                                                recordings, 
                                                phonorecords or artists 
                                                that will be featured 
                                                within a period of time 
                                                greater than 3 hours or 
                                                within an unspecified 
                                                future time period; or

                                                    ``(BB) an advance 
                                                program schedule that 
                                                is that is a schedule 
                                                of classical music 
                                                programming to be 
                                                performed as part of a 
                                                retransmission or 
                                                simultaneous 
                                                transmission of a 
                                                broadcast transmission, 
                                                which may include 
                                                programming substituted 
                                                for programming 
                                                contained in the 
                                                broadcast transmission 
                                                with respect to which 
                                                the transmitting entity 
                                                lacks the requisite 
                                                licenses or clearances 
                                                to make the 
                                                transmission in the 
                                                medium, or for 
                                                advertisements 
                                                contained in the 
                                                broadcast 
                                                transmission;'';

            (3) in clause (iii)--
                    (A) in subclause (II), by adding ``or'' at the end; 
                and
                    (B) beginning in subclause (III), by striking 
                ``or'' and all that follows through ``requirement;'''
            (4) in clause (vii)--
                    (A) by striking ``and the transmitting entity'' 
                through ``of the copyright owner,''; and
                    (B) by striking ``of a broadcast transmission'' and 
                all that follows and inserting ``or simultaneous 
                transmission of a broadcast transmission, which may 
                include programming substituted for programming 
                contained in the broadcast transmission with respect to 
                which the transmitting entity lacks the requisite 
                licenses or clearances to make the transmission in the 
                medium, or for advertisements contained in the 
                broadcast transmission;''; and
            (5) by amending clause (ix) to read as follows:
                            ``(ix) the transmitting entity identifies 
                        in textual data the sound recording during, but 
                        not before, the time it is performed, including 
                        the title of the sound recording and the 
                        featured recording artist, in a manner to 
                        permit it to be displayed to the transmission 
                        recipient by the device or technology intended 
                        for receiving the service provided by the 
                        transmitting entity, except that the obligation 
                        in this clause shall not apply to the extent 
                        that the transmitting entity does not have the 
                        technology or information necessary to provide 
                        such textual data.''.

SEC. 5. PROMOTION OF A COMPETITIVE MARKETPLACE.

    (a) Limitation of Antitrust Exemptions.--
            (1) Ephemeral recordings.--Section 112(e)(2) of title 17, 
        United States Code, is amended--
                    (A) by inserting ``, on a nonexclusive basis,'' 
                after ``common agents''; and
                    (B) by adding at the end the following: ``Nothing 
                in this paragraph shall be construed to permit any 
                copyright owners of sound recordings acting jointly, or 
                any common agent or collective representing such 
                copyright owners, to take any action that would 
                prohibit, interfere with, or impede direct licensing by 
                copyright owners of sound recordings in competition 
                with licensing by any common agent or collective, and 
                any such action that affects interstate commerce shall 
                be deemed a contract, combination or conspiracy in 
                restraint of trade in violation of section 1 of the 
                Sherman Act (15 U.S.C. 1).''.
            (2) Digital sound recording performances.--Section 114(e) 
        of title 17, United States Code, is amended by adding at the 
        end the following:
            ``(3) Nothing in this subsection shall be construed to 
        permit any copyright owners of sound recordings acting jointly, 
        or any common agent or collective representing such copyright 
        owners, to take any action that would prohibit, interfere with, 
        or impede direct licensing by copyright owners of sound 
        recordings in competition with licensing by any common agent or 
        collective, and any such action that affects interstate 
        commerce shall be deemed a contract, combination or conspiracy 
        in restraint of trade in violation of section 1 of the Sherman 
        Act (15 U.S.C. 1).
            ``(4) In order to obtain the benefits of paragraph (1), a 
        common agent or collective representing copyright owners of 
        sound recordings must make available at no charge through 
        publicly accessible computer access through the Internet the 
        most current available list of sound recording copyright owners 
        represented by the organization and the most current list of 
        sound recordings licensed by the organization.''.

SEC. 6. PROCEEDINGS OF THE COPYRIGHT ROYALTY JUDGES AND JUDICIAL 
              REVIEW.

    (a) Proceedings and Precedential Value.--Section 803(a)(1) of title 
17, United States Code, is amended--
            (1) by striking the first sentence and inserting the 
        following: ```In carrying out the purposes set forth in section 
        801, all proceedings of the Copyright Royalty Judges shall be 
        conducted in accordance with this title and, unless contrary to 
        a procedure set forth in subsection (b), according to the 
        Federal Rules of Civil Procedure and the Federal Rules of 
        Evidence.''; and
            (2) by adding at the end the following: ``Notwithstanding 
        the preceding sentence, in any rate-setting proceeding under 
        section 112(e)(4) or section 114(f)(2)(B), the Copyright 
        Royalty Judges may only consider as precedent and act in 
        accordance with determinations and interpretations that are 
        made under the objectives set forth in section 801(b) for the 
        statutory licenses under sections 112(e) and 114(d)(2).''.
    (b) Regulations.--Section 803(b)(6) of title 17, United States 
Code, is amended--
            (1) in subparagraph (C), by striking ``Requirements.--
        Regulations'' and inserting ``Requirements in cases not 
        involving digital performances of sound recordings.--In 
        proceedings other than proceedings to determine terms and rates 
        of royalty payments under section 112 or 114, regulations''; 
        and
            (2) by adding at the end the following:
                    ``(D) Requirements in proceedings involving digital 
                performances of sound recordings.--In proceedings to 
                determine terms and rates of royalty payments under 
                section 112 or 114, the following shall apply:
                            ``(i) Initial disclosures.--Not later than 
                        30 days after the date on which the voluntary 
                        negotiation period is initiated pursuant to 
                        paragraph (3)(A)(i), each participant shall 
                        make an initial disclosure to the other 
                        participants by providing copies--
                                    ``(I) of all license agreements 
                                entered into by that participant, its 
                                members, or any licensor or licensee 
                                represented in the proceeding by that 
                                participant during the applicable 5-
                                year period or covering any portion of 
                                the period for which the rates are to 
                                be set, relating to--
                                            ``(aa) in a proceeding 
                                        under section 112, the making 
                                        of ephemeral recordings; or
                                            ``(bb) in a proceeding 
                                        under section 114, the public 
                                        performance of musical works, 
                                        sound recordings, or 
                                        audiovisual works incorporating 
                                        recorded musical works; or
                                    ``(II) of any other license 
                                agreement or document upon which the 
                                participant intends to rely, in whole 
                                or in part, in its ratemaking proposal, 
                                as well as all license agreements 
                                entered into by the participant, its 
                                members, or any licensor or licensee 
                                represented in the proceeding by that 
                                participant for the same or similar 
                                rights during the applicable 5-year 
                                period or covering any portion of the 
                                period for which the rates are to be 
                                set.
                            ``(ii) Protective order; sanctions.--
                        Disclosures under clause (i) and other 
                        confidential information produced by a 
                        participant or third party during discovery, or 
                        used during the proceeding, shall be subject to 
                        a protective order, entered by the Copyright 
                        Royalty Judges in the proceeding, that 
                        prohibits use of the disclosures and the 
                        confidential information for any purpose other 
                        than the proceeding and that prohibits 
                        disclosure of the licenses or other documents 
                        included in the disclosure or of other 
                        confidential information to any person that is 
                        not counsel of record in the proceeding. The 
                        Copyright Royalty Judges may impose appropriate 
                        sanctions for failure to comply in a timely 
                        manner with the matters required to be 
                        disclosed under clause (i).
                            ``(iii) Statements of the case.--Statements 
                        of the case shall be filed by a date specified 
                        by the Copyright Royalty Judges, which for 
                        licensor participants shall be no earlier than 
                        the end of the 90-day period beginning on the 
                        date on which the voluntary negotiation period 
                        concludes, and for licensee participants shall 
                        be no earlier than the end of the 60-day period 
                        beginning on the date on which the statements 
                        of the case are required to be submitted by 
                        licensor participants.
                            ``(iv) Subpoena power.--The Copyright 
                        Royalty Judges shall have the power to issue 
                        subpoenas at the request of a participant to 
                        non-participants, subject to the Federal Rules 
                        of Civil Procedure. Orders by the Copyright 
                        Royalty Judges to enforce such subpoenas may be 
                        enforced by the requesting participant in an 
                        action in the district court in which the 
                        subpoenaed party resides.
                            ``(v) Scheduling conference.--The Copyright 
                        Royalty Judges shall order a scheduling 
                        conference no sooner than 45 days following the 
                        submission to the Copyright Royalty Judges of 
                        the statement of the case of the licensee 
                        participants. Participants shall submit jointly 
                        a proposed discovery plan no later than 21 days 
                        before the conference. Following the 
                        conference, the Copyright Royalty Judges shall 
                        issue an initial scheduling order governing 
                        pretrial procedures, and permitting discovery 
                        that is reasonable and sufficient, giving due 
                        consideration to the proposals of the 
                        participants and the magnitude of the potential 
                        royalty payments at issue during the license 
                        period covered by the proceeding. The period to 
                        conduct discovery shall be no shorter than 90 
                        days, plus the time needed to complete 
                        discovery ordered by the Copyright Royalty 
                        Judges in connection with the resolution of 
                        motions, orders, and disputes pending at the 
                        end of such period.
                            ``(vi) Settlement conference.--The 
                        Copyright Royalty Judges shall order a 
                        settlement conference among the participants in 
                        the proceeding to facilitate the presentation 
                        of offers of settlement among the participants. 
                        The settlement conference shall be held during 
                        the 21-day period beginning on the day after 
                        the last day of the discovery period ordered 
                        pursuant to clause (iv) and shall take place 
                        outside the presence of the Copyright Royalty 
                        Judges.
                            ``(vii) Joint pretrial order.--If the 
                        conference required in clause (v) does not 
                        result in a settlement among all parties, not 
                        later than 60 days after the last day of the 
                        settlement conference, the remaining 
                        participants shall propose a joint pretrial 
                        order--
                                    ``(I) stating the rates and terms 
                                proposed by each participant and 
                                setting forth, in detail, the grounds 
                                for such proposals;
                                    ``(II) setting forth admissions and 
                                stipulations about facts and documents;
                                    ``(III) avoiding unnecessary proof 
                                and cumulative evidence and limiting 
                                the use of testimony under rule 702 of 
                                the Federal Rules of Evidence;
                                    ``(IV) identifying the witnesses to 
                                be offered by each party, and attaching 
                                all witness statements, testimony, and 
                                exhibits to be presented in the 
                                proceeding and such other information 
                                that is necessary to establish terms 
                                and rates;
                                    ``(V) listing the evidence to be 
                                offered by each party, and identifying 
                                any objections to any such evidence;
                                    ``(VI) identifying any pending 
                                motions, including motions in limine 
                                and attaching any such motions that 
                                have not yet been filed;
                                    ``(VII) proposing a reasonable 
                                limit on the time allowed to present 
                                evidence; and
                                    ``(VIII) proposing other ways to 
                                facilitate the just, speedy, and 
                                inexpensive disposition of the 
                                proceeding.
                            ``(viii) Pretrial order.--The Copyright 
                        Royalty Judges shall hold a prehearing 
                        conference to address the issues set forth in 
                        the proposed joint pretrial order, and shall 
                        issue an order reciting the action taken. The 
                        order shall allocate to the licensor 
                        participants and licensee participants 
                        sufficient, reasonable, and equal time in which 
                        to present their respective cases, and shall 
                        afford each set of participants an opportunity 
                        for rebuttal. The order issued by the Copyright 
                        Royalty Judges under this clause shall control 
                        the course of the action unless the Judges 
                        modify it.
                            ``(ix) Definitions.--In this subparagraph:
                                    ``(I) Applicable 5-year period.--
                                The term `applicable 5-year period' 
                                means--
                                            ``(aa) the period of 5 
                                        calendar years preceding the 
                                        year in which the applicable 
                                        voluntary negotiation period 
                                        begins; and
                                            ``(bb) the period of the 
                                        current calendar year through 
                                        the date on which the initial 
                                        disclosure under clause (i) is 
                                        made.
                                    ``(II) Licensee.--The term 
                                `licensee' means a person or entity 
                                that exercises rights under a statutory 
                                license under section 112 or 114.
                                    ``(III) Licensee participant.--The 
                                term `licensee participant' means a 
                                participant that is, or is an 
                                authorized representative of, a 
                                licensee.
                                    ``(IV) Licensor.--The term 
                                `licensor' means a person or entity 
                                entitled to receive royalty payments 
                                under section 112 or 114.
                                    ``(V) Licensor participant.--The 
                                term `licensor participant' means a 
                                participant that is, or that is an 
                                authorized representative of, a 
                                licensor.
                                    ``(VI) Statement of the case.--The 
                                term `statement of the case' means a 
                                short and plain statement that--
                                            ``(aa) identifies all 
                                        participants and licensors or 
                                        licensees on whose behalf the 
                                        statement is being submitted;
                                            ``(bb) states the proposed 
                                        rate or rates and terms of the 
                                        participants for each right at 
                                        issue in the proceeding and 
                                        sets forth in detail the basis 
                                        of each such proposed rate and 
                                        term;
                                            ``(cc) identifies each 
                                        witness that the participant 
                                        intends to call in support of 
                                        its rate and terms proposal and 
                                        summarizes the anticipated 
                                        testimony of each witness; and
                                            ``(dd) includes any 
                                        reports, including expert 
                                        reports, and any documents upon 
                                        which the participant 
                                        relies.''.
    (c) Timing of Determination.--Section 803(c)(1) of title 17, United 
States Code, is amended by striking ``subsection (b)(6)(C)(x)'' and 
inserting ``subparagraph (C)(x) or (D)(v) of subsection (b)(6) (as the 
case may be)''.
    (d) Judicial Review.--Section 803(d)(3) of title 17, United States 
Code, is amended by striking the first sentence and inserting the 
following: ``Conclusions of law, and determinations of rates in which 
the Copyright Royalty Judges are required to apply the facts of record 
to the objectives set forth in section 801(b) shall be subject to de 
novo review. Findings of fact by the Copyright Royalty Judges shall be 
subject to review for clear error. All other actions by the Copyright 
Royalty Judges shall be subject to review for abuse of discretion.''.

SEC. 7. GLOBAL MUSIC RIGHTS DATABASE.

    For purposes of facilitating compensation to artists of musical 
works and combating copyright infringement, not later than 180 days 
after the date of enactment of this Act, the Librarian of Congress, in 
consultation with the Intellectual Property Enforcement Coordinate and 
the United States Patent and Trademark Office, shall submit to Congress 
a report that provides a set of recommendations about how the Federal 
Government can facilitate, and possibly establish, a global music 
registry that is sustainably financed and consistent with World 
Intellectual Property Organization obligations. Such registry should, 
to the extent practicable, include all known or copyrighted musical 
works, the writers of the work, the owners of the rights, the entity on 
behalf of those owners who can licenses such rights on a territory-by-
territory basis, and all known sound recording data.

SEC. 8. EFFECTIVE DATE AND TRANSITIONAL RULES.

    (a) In General.--Except as provided in subsection (c), the 
amendments made by this Act shall take effect on the date of enactment 
of this Act and shall apply to any proceeding that is pending on, or 
that begins on or after the date of enactment. The Copyright Royalty 
Judges in office as of the date of enactment shall have only such 
continuing authority as is provided in paragraphs (1) and (2) of 
subsection (c).
    (b) Regulations.--Not later than 60 days after the date on which 
not less than 2 Copyright Royalty Judges are appointed and confirmed 
pursuant to section 2, the Copyright Royalty Judges shall propose 
regulations implementing the amendments set forth in section 6(b), by 
notice in the Federal Register, providing 30 days for comments and 15 
days for reply comments. Not later than 45 days after date on which the 
15-day period for reply comments ends, the Copyright Royalty Judges 
shall promulgate final regulations.
    (c) Applicability to Pending Proceedings.--
            (1) Proceedings in which the hearing on the merits has 
        concluded.--The Copyright Royalty Judges sitting on the date of 
        enactment shall have authority to decide any pending proceeding 
        in which the hearing on the merits has concluded, under the 
        standards, procedures, and regulations in effect prior to the 
        enactment of this Act. This authority shall include the 
        authority to decide any motion for rehearing under section 
        803(c)(2) of title 17, United States Code, in any such 
        proceeding.
            (2) Proceedings in which the hearing on the merits has 
        commenced but not concluded.--The Copyright Royalty Judges 
        sitting on the date of enactment shall have authority to decide 
        any pending proceeding in which the hearing on the merits has 
        commenced but not concluded, under the standards, procedures, 
        and regulations in effect prior to the enactment of this Act, 
        except that this authority may only be exercised with the 
        consent of all participants in any proceeding to determine 
        terms and rates of royalty payments under section 112 or 114 of 
        title 17, United States Code. This authority shall include the 
        authority to decide any motion for rehearing under section 
        803(c)(2) of title 17, United States Code, in any such 
        proceeding.
            (3) All other pending proceedings.--The Copyright Royalty 
        Judges appointed pursuant to section 2 shall assume authority 
        over any pending proceeding in which the hearing on the merits 
        has not commenced. The Copyright Royalty Judges shall 
        recommence any pending proceeding to determine terms and rates 
        of royalty payments under section 112 or 114 of title 17, 
        United States Code, under the procedures, standards and 
        regulations set forth in this Act, and the requirement set 
        forth in section 803(c)(1) of title 17, United States Code, 
        that the proceeding be concluded no later than 15 days before 
        the expiration of the then current statutory rates and terms, 
        shall not apply. The Copyright Royalty Judges shall set a 
        reasonable schedule for the continuation of any pending 
        proceeding other than a proceeding to determine the terms and 
        rates of royalty payments under section 112 or 114 of title 17, 
        United States Code.
                                 <all>