[Congressional Record Volume 141, Number 132 (Tuesday, August 8, 1995)]
[Senate]
[Pages S11935-S11940]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


 THE DEPARTMENT OF THE INTERIOR APPROPRIATIONS ACT FOR FISCAL YEAR 1996

                                 ______


                        BROWN AMENDMENT NO. 2283

  Mr. GORTON (for Mr. Brown) proposed an amendment to the bill (H.R. 
1977) making appropriations for the Department of the Interior and 
related agencies for the fiscal year ending September 30, 1996, and for 
other purposes; as follows:

       Insert at page 126, between line 7 and line 8:
       ``(g)(1) It is the policy of the Congress that entrance, 
     tourism, and recreational use fees for the use of Federal 
     lands and facilities not discriminate against any State of 
     any region of the country.
       ``(2) Not later than October 1, 1996, the Secretary of the 
     Interior, in cooperation with the heads of other affected 
     agencies shall prepare and submit to the Senate and House 
     Appropriations Committees a report that--
       ``(A) identifies all Federal lands and facilities that 
     provide tourism or recreational use; and
       ''(B) analyzes by State and region any fees charged for 
     entrance to or for tourism or recreational use of Federal 
     lands and facilities in a State or region, individually and 
     collectively.
       ``(3) Not later than October 1, 1997, the Secretary of the 
     Interior, in cooperation with the heads of other affected 
     agencies, shall prepare and submit to the Senate and House 
     Appropriations Committees any recommendations that the 
     Secretary may have for implementing the policy stated in 
     subsection (1).''
                                 ______


                       CHAFEE AMENDMENT NO. 2284

  Mr. GORTON (for Mr. Chafee) proposed an amendment to the bill H.R. 
1977, supra; as follows:

       On page 10, line 16 of the bill, strike ``enacted,'' and 
     insert ``enacted or until the end of fiscal year 1996, 
     whichever is earlier,''.
                                 ______


                    GORTON AMENDMENTS NOS. 2285-2289

  Mr. GORTON proposed five amendments to the bill H.R. 1977, supra; as 
follows:

                           Amendment No. 2285

       On page 115, line 10, strike ``draft'' and insert in lieu 
     thereof ``final''.
                                                                    ____


                           Amendment No. 2286

       On page 80, lines 5 through 16, vitiate the Committee 
     amendment and restore the House text.
                                                                    ____


                           Amendment No. 2287

       On page 10, line 15 of the bill, strike ``Endangered 
     Species Act'' and insert ``Endangered Species Act of 1973, 
     (16 U.S.C. 1533)''.
                                                                    ____


                           Amendment No. 2288

       On page 55, line 14, insert ``not'' after ``shall''.
       On page 55, line 15, delete ``action'' and insert 
     ``actions''.
       On page 55, line 16, delete ``judgment'' and insert 
     ``judgments''.
       On page 55, line 16, delete ``has'' and insert ``have''.
                                                                    ____


                           Amendment No. 2289

       On page 76, after line 23, insert the following: None of 
     the funds appropriated under this Act for the Forest Service 
     shall be made available for the purpose of applying paint to 
     rocks, or rock colorization; Provided, That notwithstanding 
     any other provision of law, the Forest Service shall not 
     require of any individual or entity, as part of any 
     permitting process under its authority, or as a requirement 
     of compliance with the National Environmental Policy Act of 
     1969 (42 U.S.C. 4231 et seq), the painting or colorization of 
     rocks.
                                 ______


              GORTON (AND OTHERS) AMENDMENTS NO. 2290-2291

  Mr. GORTON (for himself, Mr. McCain, Mr. Inouye, and Mr. Domenici) 
proposed two amendments to the bill H.R. 1977, supra; as follows:

                           Amendment No. 2290

       On page 31, lines 3 through 7, delete the Committee 
     amendment.
       On page 31, line 15, delete ``$997,221,000'' and insert 
     ``$1,260,921,000''.
       On page 32, line 13, delete ``$35,331,000'' and insert 
     ``$62,328,000''.
       On page 32, lines 15 through 17, delete the Committee 
     amendments.
       On page 34, lines 4 through 11, delete the Committee 
     amendment.
       On page 36, line 7, delete the Committee amendment.
       On page 36, lines 9 through 10, restore ''; acquisition of 
     lands and interests in lands; and preparation of lands for 
     farming''.
       On page 36, line 11, delete ``$60,088,000'' and insert 
     ``$107,333,000''.
       On page 36, lines 12 through 16, delete the Committee 
     amendment.
       On page 36, lines 20 through 23, delete the Committee 
     amendment.
       On page 37, lines 22 through page 38, line 23, delete the 
     Committee amendment.
       On page 37, line 26, of the matter restored, strike 
     ``$75,145,000'' and insert ``$82,745,000''.
       On page 38, line 1 of the matter restored, strike 
     ``$73,100,000'' and insert ``$78,600,000''.
       On page 38, line 11 of the matter restored, strike 
     ``$1,000,000'' and insert ``$3,100,000''.
       On page 44, lines 11 through 16, delete the following: 
     ``including expenses necessary to provide for management, 
     development, improvement, and protection of resources and 
     appurtenant facilities formerly under the jurisdiction of the 
     Bureau of Indian Affairs, including payment of irrigation 
     assessments and charges and acquisition of water rights''.
       On page 44, line 16, delete ``$280,038,000'' and insert 
     ``$16,338,000'' in lieu thereof.
       On page 44, line 16, delete ``$15,964,000'' and insert 
     ``$15,891,000'' in lieu thereof.
       On page 44, lines 18 through 19, delete ``, attorney fees, 
     litigation support, and the Navajo-Hopi Settlement Program''.
       On page 45, lines 7 through 16, delete beginning with ``: 
     Provided'' on line 7 and ending with ``1997'' on line 16.
       On page 45, lines 18 through 19, delete ``, attorney fees, 
     litigation support, and the Navajo-Hopi Settlement Program''.
       Delete the Committee amendment beginning on page 45 line 23 
     through page 48 line 8.
                                                                    ____


                           Amendment No. 2291

       On page 35, beginning on line 11, delete after the word 
     ``area'' (beginning with ``: Provided'') and all that follows 
     through ``Appropriations'' on line 22.
                                 ______


                       McCAIN AMENDMENT NO. 2292

  Mr. McCAIN proposed an amendment to the bill H.R. 1977, supra; as 
follows:

       Strike all in the committee amendment on page 19, lines 8-
     14 and insert in lieu thereof he following: ``Provided 
     further, That funds provided under this head, derived from 
     the Historic Preservation Fund, established by the Historic 
     Preservation Act of 1966 (80 Stat. 915), as amended (16 
     U.S.C. 470). may be available until expended to render sites 
     safe for visitors and for building stabilization''.
                                 ______


                BUMPERS (AND OTHERS) AMENDMENT NO. 2293
  Mr. BUMPERS (for himself, Mr. Lautenberg, Mr. Levin, Mr. Bradley, Mr. 
Feingold, and Mr. Robb) proposed an amendment to the bill H.R. 1977, 
supra; as follows:

       Add the following at the end of the language on lines 16-21 
     on page 128 proposed to be stricken by the Committee 
     amendment: ``The provisions of this section shall not apply 
     if the Secretary of Interior determines that, for the claim 
     concerned: (1) a patent application was filed with the 
     Secretary on or before the date of enactment of the fiscal 
     year 1995 Interior Appropriations Act, and (2) all 
     requirements established under Sections 2325 and 2326 of 
     Revised Statutes (30 U.S.C. 29 and 30) for vein or lode 
     claims and Sections 2329, 2330, 2331 and 2333 of the Revised 
     Statutes (30 U.S.C. 35, 36 and 37) for placer claims, and 
     Section 2337 of the Revised Statutes (30 U.S.C. 42) for mill 
     site claims, as the case may be, were fully complied with by 
     the applicant by that date.''
                                 ______


                 CRAIG (AND OTHERS) AMENDMENT NO. 2294

  Mr. CRAIG (for himself, Mr. Reid, and Mr. Bryan) proposed an 
amendment to the bill H.R. 1977, supra; as follows:

       Strike all the language in the amendment and insert in lieu 
     thereof the following:

     ``SEC. (a). FAIR MARKET VALUE FOR MINERAL PATENTS.

       ``Except as provided in subsection (c), any patent issued 
     by the United States under the general mining laws after the 
     date of enactment of this Act shall be issued only upon 
     payment by the owner of the claim of the fair market value 
     for the interest in the land owned by the United States 
     exclusive of and without regard to the mineral deposits in 
     the land or the use of the land. For the purposes of this 
     section, ``general mining laws'' means those Acts which 
     generally comprise chapters 2, 11, 12, 12A, 15, and 16, and 
     sections 161 and 162, of Title 30 of the United States Code, 
     all Acts heretofore enacted which are amendatory of or 
     supplementary to any of the foregoing Acts, and the judicial 
     and administrative decisions interpreting such Acts.

     ``SEC. (b). RIGHT OF REENTRY.

       ``(1) In general.--Except as provided in subsection (c), 
     and notwithstanding any other provision of law, a patent 
     issued under subsection (a) shall be subject to a right of 

[[Page S 11936]]
     reentry by the United States if it is used by the patentee for any 
     purpose other than for conducting mineral activities in good 
     faith and such unauthorized use is not discontinued as 
     provided in subsection (b)(2). For the purposes of this 
     section, the term ``mineral activities'' means any activity 
     related to, or incidental to, exploration for or development, 
     mining, production, beneficiation, or processing of any 
     locatable mineral or mineral that would be locatable if it 
     were on Federal land, or reclamation of the impacts of such 
     activities.
       ``(2) Notice by the secretary.--If the patented estate is 
     used by the patentee for any purpose other than for 
     conducting mineral activities in good faith, the Secretary of 
     the Interior shall serve on all owners of interests in such 
     patented estate, in the manner prescribed for service of a 
     summons and complaint under the Federal Rules of Civil 
     Procedure, notice specifying such unauthorized use and 
     providing not more than 90 days in which such unauthorized 
     use must be terminated. The giving of such notice shall 
     constitute final agency action appealable by any owner of an 
     interest in such patented estate. The Secretary may exercise 
     the right of reentry as provided in subsection (b)(3) if such 
     unauthorized use has not been terminated in the time provided 
     in this paragraph, and only after all appeal rights have 
     expired and any appeals of such notice have been finally 
     determined.
       ``(3) Right of reentry.--The Secretary may exercise the 
     right of the United States to reenter such patented estate by 
     filing a declaration of reentry in the office of the Bureau 
     of Land Management designated by the Secretary and recording 
     such declaration where the notice
      or certificate of location for the patented claim or site is 
     recorded under State law. Upon the filing and recording of 
     such declaration, all right, title and interest in such 
     patented estate shall revert to the United States. Lands 
     and interests in lands for which the United States 
     exercises its right of reentry under this section shall 
     remain open to the location of mining claims and mill 
     sites, unless withdrawn under other applicable law.

     ``SEC. (c). PATENTS EXCEPTED FROM REQUIREMENTS.

     ``The requirements of subsections (a) and (b) of this Act 
     shall not apply to the issuance of those patents whose 
     applications were excepted under section 113 of Pub. L. No. 
     103-322, 108 Stat. 2499, 2519 (1994), from the prohibition on 
     funding contained in Section 112 of that Act. Such patents 
     shall be issued under the general mining laws in effect prior 
     to the date of enactment of this Act.

     ``SEC. (d). PROCESSING OF PENDING PATENT APPLICATIONS.

       ``(2) Processing schedule.--For those applications for 
     patent under the general mining laws which are pending at the 
     date of enactment of this Act, or any amendments to or 
     resubmittals of such patent applications, the Secretary of 
     the Interior shall--
       ``(A) Within three months of the enactment of this Act, 
     file with the House and Senate Committees on Appropriations 
     and the Committee on Resources of the House of 
     Representatives and the Committee on Energy and Natural 
     Resources of the United States Senate a plan which details 
     how the Department of the Interior will take final action on 
     all such applications within two years of the enactment of 
     this Act and file reports annually thereafter with the same 
     committees detailing actions taken by the Department of the 
     Interior to carry out such plan; and
       ``(B) Take such actions as may be necessary to carry out 
     such plan.
       ``(2) Mineral examinations.--Upon the request of a patent 
     applicant, the Secretary of the Interior shall allow the 
     applicant to fund the retention by the Bureau of Land 
     Management of a qualified third-party contractor to conduct a 
     mineral examination of the mining claims or mill sites 
     contained in a patent application. All such third-party 
     mineral examinations shall be conducted in accordance with 
     standard procedures and criteria followed by the Bureau of 
     Land Management, and the retention and compensation of such 
     third-party contractors shall be conducted in accordance with 
     procedures employed by the Bureau of Land Management in the 
     retention of third-party contractors for the preparation of 
     environmental analyses under the National Environmental 
     Policy Act (42 U.S.C. Sec. Sec. 4321-437 0d) to the maximum 
     extent practicable.''.
                                 ______


                 THOMAS (AND OTHERS) AMENDMENT NO. 2295

  Mr. GORTON (for Mr. Thomas for himself, Mr. Campbell, Mr. Burns, Mr. 
Kempthorne, Mr. Bennett, Mr. Simpson, Mr. Murkowski, Mr. Craig, Mr. 
Dole, Mr. Pressler, Mr. Hatch, Mr. Brown, Mr. Kyl, and Mr. Baucus) 
proposed an amendment to the bill H.R. 1977, supra; as follows:

       At the end of the bill, add the following:

     SEC.  . DELAY IN IMPLEMENTATION OF THE ADMINISTRATION'S 
                   RANGELAND REFORM PROGRAM.

       None of the funds made available under this or any other 
     Act may be used to implement or enforce the final rule 
     published by the Secretary of the Interior on February 22, 
     1995 (60 Fed. Reg. 9894), making amendments to parts 4, 1780, 
     and 4100 of title 43, Code of Federal Regulations, to take 
     effect August 21, 1995, until December 21, 1995. None of the 
     funds made available under this or any other Act may be used 
     to publish proposed or enforce final regulations governing 
     the management of livestock grazing on lands administered by 
     the Forest Service until November 21, 1995.
                                 ______


                DOMENICI (AND OTHERS) AMENDMENT NO. 2296

  Mr. DOMENICI (for himself, Mr. Inouye, Mr. McCain, Mr. Simon, Mr. 
Dorgan, Mr. Conrad, Mr. Kyl, Mr. Campbell, and Mr. Bingaman) proposed 
an amendment to the bill H.R. 1977, supra; as follows:

       On page 2, line 11, strike ``$565,936,000'' and insert 
     ``$519,436,000''.
       On page 3, line 5, strike ``$565,936,000'' and insert 
     ``$519,436,000''.
       On page 9, line 23, strike ``$496,978,000'' and insert 
     ``$466,978,000''.
       On page 16, line 13, strike ``$145,965,000, of which 
     $145,915,000'' and insert ``$100,965,000, of which 
     $100,915,000''.
       On page 21, line 22, strike ``$577,503,000'' and insert 
     ``$531,003,000''.
       On page 24, line 23, strike ``$182,169,000'' and insert 
     ``$157,169,000''.
       On page 31, line 15, before ``, of'', insert the following: 
     ``(plus $200,000,000)''.
       On page 32, line 17, before ``:  Provided,'' insert the 
     following: ``; and of which not to exceed $5,000,000 shall 
     remain available until expended for the implementation of the 
     Indian Tribal Justice Act (25 U.S.C. 3601 et seq.); and of 
     which not to exceed $2,500,000 shall remain available until 
     expended for the implementation of the Indian Child 
     Protection and Family Violence Prevention Act (25 U.S.C. 3201 
     et seq.)''
       On page 43, line 1 strike ``$58,109,000'' and insert 
     ``$51,109,000''.
                                 ______


                      JEFFORDS AMENDMENT NO. 2297

  Mr. GORTON (for Mr. Jeffords) proposed an amendment to the bill H.R. 
1977, supra; as follows:

       At the appropriate place, insert: ``Notwithstanding other 
     provisions of law, the National Park Service's American 
     Battlefield Protection Program may enter into cooperative 
     agreements, grants, contracts, or other generally accepted 
     means of financial assistance with federal, state, local, and 
     tribal governments; other public entities; educational 
     institutions; and private, non-profit organizations for the 
     purpose of identifying, evaluating, and protecting historic 
     battlefields and associated sites.''
                                 ______


             GORTON (AND MURRAY) AMENDMENTS NOS. 2298-2299

  Mr. GORTON (for himself and Mrs. Murray) proposed two amendments to 
the bill H.R. 1977, supra; as follows:

                           Amendment No. 2298

       On page 55, line 13 strike ``.'' and insert ``, or''.
       On page 55, line 14 insert the following:
       ``(3) fail to reach a mutual agreement that addresses the 
     concerns of affected parties within 90 days after the date of 
     enactment of this Act.''
                                                                    ____


                           Amendment No. 2299

       On page 114, line 9, strike $1,600,000 and insert 
     ``$4,000,000''.
       On page 115, line 1, after ``funds'' insert the word 
     ``generally''.
                                 ______


                       GORTON AMENDMENT NO. 2300

  Mr. GORTON proposed an amendment to the bill H.R. 1977, supra; as 
follows:

       On page 103, on line 25 strike ``.'' and insert the 
     following: ``, unless the relevant agencies for the 
     Department of Interior and/or Agriculture follow appropriate 
     reprogramming guidelines. Provided further: if no funds are 
     provided for the AmeriCorps program by the VA-HUD and 
     Independent Agencies fiscal year 1996 appropriations bill, 
     then none of the funds appropriated or otherwise made 
     available by this Act may be used for the AmeriCorps 
     programs.''
                                 ______


                       McCAIN AMENDMENT NO. 2301

  Mr. GORTON (Mr. McCain) proposed an amendment to the bill H.R. 1977, 
supra; as follows:

       On page 136, between lines 12 and 13, insert the following:
       Sec. 330. (a)(1) The head of each agency referred to in 
     paragraph (2) shall submit to the President each year, 
     through the head of the department having jurisdiction over 
     the agency, a land acquisition ranking for the agency 
     concerned for the fiscal year beginning after the date of the 
     submittal of the report.
       (2) The heads of agencies referred to in paragraph (1) are 
     the following:
       (A) The Director of the National Park Service in the case 
     of the National Park Service.
       (B) The Director of the Fish and Wildlife Service in the 
     case of the Fish and Wildlife Service.
       (C) The Director of the Bureau of Land Management in the 
     case of the Bureau of Land Management.
       (D) The Chief of the Forest Service in the case of the 
     Forest Service.
       (3) In this section, the term ``land acquisition ranking'', 
     in the case of a Federal agency, means a statement of the 
     order of precedence of the land acquisition proposals of the 

[[Page S 11937]]
     agency, including a statement of the order of precedence of such 
     proposals for each organizational unit of the agency.
       (b) The President shall include the land acquisition 
     rankings for a fiscal year that are submitted to the 
     President under subsection (a)(1) in the supporting 
     information submitted to Congress with the budget for that 
     fiscal year under section 1105 of title 31, United States 
     Code.
       (c)(1) The head of the agency concerned shall determine the 
     order of precedence of land acquisition proposals under 
     subsection (a)(1) in accordance with criteria that the 
     Secretary of the Department having jurisdiction over the 
     agency shall prescribe.
       (2) The criteria prescribed under paragraph (1) shall 
     provide for a determination of the order of precedence of 
     land acquisition proposals through consideration of--
       (A) the natural resources located on the land covered by 
     the acquisition proposals;
       (B) the degree to which such resources are threatened;
       (C) the length of time required for the acquisition of the 
     land;
       (D) the extent, if any, to which an increase in the cost of 
     the land covered by the proposals makes timely completion of 
     the acquisition advisable;
       (E) the extent of public support for the acquisition of the 
     land; and
       (F) such other matters as the Secretary concerned shall 
     prescribe.
                                 ______


                HATCH (AND FEINSTEIN) AMENDMENT NO. 2302

  Mr. GORTON for Mr. Hatch for himself and Mrs. Feinstein) proposed an 
amendment to the bill H.R. 1977, supra; as follows:

       Strike out all after the enacting clause and insert in lieu 
     thereof the following:
     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Digital Performance Right in 
     Sound Recordings Act of 1995''.

     SEC. 2. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS.

       Section 106 of title 17, United States Code, is amended--
       (1) in paragraph (4) by striking ``and'' after the 
     semicolon;
       (2) in paragraph (5) by striking the period and inserting 
     ``; and''; and
       (3) by adding at the end the following:
       ``(6) in the case of sound recordings, to perform the 
     copyrighted work publicly by means of a digital audio 
     transmission.''.

     SEC. 3. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS.

       Section 114 of title 17, United States Code, is amended--
       (1) in subsection (a) by striking ``and (3)'' and inserting 
     ``(3) and (6)'';
       (2) in subsection (b) in the first sentence by striking 
     ``phonorecords, or of copies of motion pictures and other 
     audiovisual works,'' and inserting ``phonorecords or 
     copies'';
       (3) by striking subsection (d) and inserting:
       ``(d) Limitations on Exclusive Right.--Notwithstanding the 
     provisions of section 106(6)--
       ``(1) Exempt transmissions and retransmissions.--The 
     performance of a sound recording publicly by means of a 
     digital audio transmission, other than as a part of an 
     interactive service, is not an infringement of section 106(6) 
     if the performance is part of--
       ``(A)(i) a nonsubscription transmission other than a 
     retransmission;
       ``(ii) an initial nonsubscription retransmission made for 
     direct reception by members of the public of a prior or 
     simultaneous incidental transmission that is not made for 
     direct reception by members of the public; or
       ``(iii) a nonsubscription broadcast transmission;
       ``(B) a retransmission of a nonsubscription broadcast 
     transmission: Provided, That, in the case of a retransmission 
     of a radio station's broadcast transmission--
       ``(i) the radio station's broadcast transmission is not 
     willfully or repeatedly retransmitted more than a radius of 
     150 miles from the site of the radio broadcast transmitter, 
     however--

       ``(I) the 150 mile limitation under this clause shall not 
     apply when a nonsubscription broadcast transmission by a 
     radio station licensed by the Federal Communications 
     Commission is retransmitted on a nonsubscription basis by a 
     terrestrial broadcast station, terrestrial translator, or 
     terrestrial repeater licensed by the Federal Communications 
     Commission; and
       ``(II) in the case of a subscription retransmission of a 
     nonsubscription broadcast retransmission covered by subclause 
     (I), the 150 mile radius shall be measured from the 
     transmitter site of such broadcast retransmitter;

       ``(ii) the retransmission is of radio station broadcast 
     transmissions that are--

       ``(I) obtained by the retransmitter over the air;
       ``(II) not electronically processed by the retransmitter to 
     deliver separate and discrete signals; and
       ``(III) retransmitted only within the local communities 
     served by the retransmitter;

       ``(iii) the radio station's broadcast transmission was 
     being retransmitted to cable systems (as defined in section 
     111(f)) by a satellite carrier on January 1, 1995, and that 
     retransmission was being retransmitted by cable systems as a 
     separate and discrete signal, and the satellite carrier 
     obtains the radio station's broadcast transmission in an 
     analog format: Provided, That the broadcast transmission 
     being retransmitted may embody the programming of no more 
     than one radio station; or
       ``(iv) the radio station's broadcast transmission is made 
     by a noncommercial educational broadcast station funded on or 
     after January 1, 1995, under section 396(k) of the 
     Communications Act of 1934 (47 U.S.C. 396(k)), consists 
     solely of noncommercial educational and cultural radio 
     programs, and the retransmission, whether or not 
     simultaneous, is a nonsubscription terrestrial broadcast 
     retransmission; or
       ``(C) a transmission that comes within any of the following 
     categories:
       ``(i) a prior or simultaneous transmission incidental to an 
     exempt transmission, such as a feed received by and then 
     retransmitted by an exempt transmitter: Provided, That such 
     incidental transmissions do not include any subscription 
     transmission directly for reception by members of the public;
       ``(ii) a transmission within a business establishment, 
     confined to its premises or the immediately surrounding 
     vicinity;
       ``(iii) a retransmission by any retransmitter, including a 
     multichannel video programming distributor as defined in 
     section 602(12) of the Communications Act of 1934 (47 U.S.C. 
     522(12)), of a transmission by a transmitter licensed to 
     publicly perform the sound recording as a part of that 
     transmission, if the retransmission is simultaneous with the 
     licensed transmission and authorized by the transmitter; or
       ``(iv) a transmission to a business establishment for use 
     in the ordinary course of its business: Provided, That the 
     business recipient does not retransmit the transmission 
     outside of its premises or the immediately surrounding 
     vicinity, and that the transmission does not exceed the sound 
     recording performance complement. Nothing in this clause 
     shall limit the scope of the exemption in clause (ii).
       ``(2) Subscription transmissions.--In the case of a 
     subscription transmission not exempt under subsection (d)(1), 
     the performance of a sound recording publicly by means of a 
     digital audio transmission shall be subject to statutory 
     licensing, in accordance with subsection (f) of this section, 
     if--
       ``(A) the transmission is not part of an interactive 
     service;
       ``(B) the transmission does not exceed the sound recording 
     performance complement;
       ``(C) the transmitting entity does not cause to be 
     published by means of an advance program schedule or prior 
     announcement the titles of the specific sound recordings or 
     phonorecords embodying such sound recordings to be 
     transmitted;
       ``(D) except in the case of transmission to a business 
     establishment, the transmitting entity does not automatically 
     and intentionally cause any device receiving the transmission 
     to switch from one program channel to another; and
       ``(E) except as provided in section 1002(e) of this title, 
     the transmission of the sound recording is accompanied by the 
     information encoded in that sound recording, if any, by or 
     under the authority of the copyright owner of that sound 
     recording, that identifies the title of the sound recording, 
     the featured recording artist who performs on the sound 
     recording, and related information, including information 
     concerning the underlying musical work and its writer.
       ``(3) Licenses for transmissions by interactive services.--
       ``(A) No interactive service shall be granted an exclusive 
     license under section 106(6) for the performance of a sound 
     recording publicly by means of digital audio transmission for 
     a period in excess of 12 months, except that with respect to 
     an exclusive license granted to an interactive service by a 
     licensor that holds the copyright to 1,000 or fewer sound 
     recordings, the period of such license shall not exceed 24 
     months: Provided, however, That the grantee of such exclusive 
     license shall be ineligible to receive another exclusive 
     license for the performance of that sound recording for a 
     period of 13 months from the expiration of the prior 
     exclusive license.
       ``(B) The limitation set forth in subparagraph (A) of this 
     paragraph shall not apply if--
       ``(i) the licensor has granted and there remain in effect 
     licenses under section 106(6) for the public performance of 
     sound recordings by means of digital audio transmission by at 
     least 5 different interactive services: Provided, however, 
     That each such license must be for a minimum of 10 percent of 
     the copyrighted sound recordings owned by the licensor that 
     have been licensed to interactive services, but in no event 
     less than 50 sound recordings; or
       ``(ii) the exclusive license is granted to perform publicly 
     up to 45 seconds of a sound recording and the sole purpose of 
     the performance is to promote the distribution or performance 
     of that sound recording.
       ``(C) Notwithstanding the grant of an exclusive or 
     nonexclusive license of the right of public performance under 
     section 106(6), an interactive service may not publicly 
     perform a sound recording unless a license has been granted 
     for the public performance of any copyrighted musical work 
     contained in the sound recording, Provided, That 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.

[[Page S 11938]]

       ``(D) The performance of a sound recording by means of a 
     retransmission of a digital audio transmission is not an 
     infringement of section 106(6) if--
       ``(i) the retransmission is of a transmission by an 
     interactive service licensed to publicly perform the sound 
     recording to a particular member of the public as part of 
     that transmission; and
       ``(ii) the retransmission is simultaneous with the licensed 
     transmission, authorized by the transmitter, and limited to 
     that particular member of the public intended by the 
     interactive service to be the recipient of the transmission.
       ``(E) For the purposes of this paragraph--
       ``(i) a `licensor' shall include the licensing entity and 
     any other entity under any material degree of common 
     ownership, management, or control that owns copyrights in 
     sound recordings; and
       ``(ii) a `performing rights society' is an association or 
     corporation that licenses the public performance of 
     nondramatic musical works on behalf of the copyright owner, 
     such as the American Society of Composers, Authors and 
     Publishers, Broadcast Music, Inc., and SESAC, Inc.
       ``(4) Rights not otherwise limited.--
       ``(A) Except as expressly provided in this section, this 
     section does not limit or impair the exclusive right to 
     perform a sound recording publicly by means of a digital 
     audio transmission under section 106(6).
       ``(B) Nothing in this section annuls or limits in any way--
       ``(i) the exclusive right to publicly perform a musical 
     work, including by means of a digital audio transmission, 
     under section 106(4);
       ``(ii) the exclusive rights in a sound recording or the 
     musical work embodied therein under sections 106(1), 106(2) 
     and 106(3); or
       ``(iii) any other rights under any other clause of section 
     106, or remedies available under this title, as such rights 
     or remedies exist either before or after the date of 
     enactment of the Digital Performance Right in Sound 
     Recordings Act of 1995.
       ``(C) Any limitations in this section on the exclusive 
     right under section 106(6) apply only to the exclusive right 
     under section 106(6) and not to any other exclusive rights 
     under section 106. Nothing in this section shall be construed 
     to annul, limit, impair or otherwise affect in any way the 
     ability of the owner of a copyright in a sound recording to 
     exercise the rights under sections 106(1), 106(2) and 106(3), 
     or to obtain the remedies available under this title pursuant 
     to such rights, as such rights and remedies exist either 
     before or after the date of enactment of the Digital 
     Performance Right in Sound Recordings Act of 1995.''; and
       (4) by adding after subsection (d) the following:
       ``(e) Authority for Negotiations.--
       ``(1) Notwithstanding any provision of the antitrust laws, 
     in negotiating statutory licenses in accordance with 
     subsection (f), any copyright owners of sound recordings and 
     any entities performing sound recordings affected by this 
     section may negotiate and agree upon the royalty rates and 
     license terms and conditions for the performance of such 
     sound recordings and the proportionate division of fees paid 
     among copyright owners, and may designate common agents on a 
     nonexclusive basis to negotiate, agree to, pay, or receive 
     payments.
       ``(2) For licenses granted under section 106(6), other than 
     statutory licenses, such as for performances by interactive 
     services or performances that exceed the sound recording 
     performance complement--
       ``(A) copyright owners of sound recordings affected by this 
     section may designate common agents to act on their behalf to 
     grant licenses and receive and remit royalty payments, 
     Provided, That each copyright owner shall establish the 
     royalty rates and material license terms and conditions 
     unilaterally, that is, not in agreement, combination, or 
     concert with other copyright owners of sound recordings; and
       ``(B) entities performing sound recordings affected by this 
     section may designate common agents to act on their behalf to 
     obtain licenses and collect and pay royalty fees, Provided, 
     That each entity performing sound recordings shall determine 
     the royalty rates and material license terms and conditions 
     unilaterally, that is, not in agreement, combination, or 
     concert with other entities performing sound recordings.
       ``(f) Licenses for Nonexempt Subscription Transmissions.--
       ``(1) No later than 30 days after the enactment of the 
     Digital Performance Right in Sound Recordings Act of 1995, 
     the Librarian of Congress shall cause notice to be published 
     in the Federal Register of the initiation of voluntary 
     negotiation proceedings for the purpose of determining 
     reasonable terms and rates of royalty payments for the 
     activities specified by subsection (d)(2) of this section 
     during the period beginning on the effective date of such Act 
     and ending on December 31, 2000. Such terms and rates shall 
     distinguish among the different types of digital audio 
     transmission services then in operation. Any copyright owners 
     of sound recordings or any entities performing sound 
     recordings affected by this section may submit to the 
     Librarian of Congress licenses covering such activities with 
     respect to such sound recordings. The parties to each 
     negotiation proceeding shall bear their own costs.
       ``(2) In the absence of license agreements negotiated under 
     paragraph (1), during the 60-day period commencing 6 months 
     after publication of the notice specified in paragraph (1), 
     and upon the filing of a petition in accordance with section 
     803(a)(1), the Librarian of Congress shall, pursuant to 
     chapter 8, convene a copyright arbitration royalty panel to 
     determine and publish in the Federal Register a schedule of 
     rates and terms which, subject to paragraph (3), shall be 
     binding on all copyright owners of sound recordings and 
     entities performing sound recordings. In addition to the 
     objectives set forth in section 801(b)(1), in establishing 
     such rates and terms, the copyright arbitration royalty panel 
     may consider the rates and terms for comparable types of 
     digital audio transmission services and comparable 
     circumstances under voluntary license agreements negotiated 
     as provided in paragraph (1). The Librarian of Congress shall 
     also establish requirements by which copyright owners may 
     receive reasonable notice of the use of their sound 
     recordings under this section, and under which records of 
     such use shall be kept and made available by entities 
     performing sound recordings.
       ``(3) License agreements voluntarily negotiated at any time 
     between one or more copyright owners of sound recordings and 
     one or more entities performing sound recordings shall be 
     given effect in lieu of any determination by a copyright 
     arbitration royalty panel or decision by the Librarian of 
     Congress.
       ``(4)(A) Publication of a notice of the initiation of 
     voluntary negotiation proceedings as specified in paragraph 
     (1) shall be repeated, in accordance with regulations that 
     the Librarian of Congress shall prescribe--
       ``(i) no later than 30 days after a petition is filed by 
     any copyright owners of sound recordings or any entities 
     performing sound recordings affected by this section 
     indicating that a new type of digital audio transmission 
     service on which sound recordings are performed is or is 
     about to become operational; and
       ``(ii) in the first week of January, 2000 and at 5-year 
     intervals thereafter.
       ``(B)(i) The procedures specified in paragraph (2) shall be 
     repeated, in accordance with regulations that the Librarian 
     of Congress shall prescribe, upon the filing of a petition in 
     accordance with section 803(a)(1) during a 60-day period 
     commencing--
       ``(I) six months after publication of a notice of the 
     initiation of voluntary negotiation proceedings under 
     paragraph (1) pursuant to a petition under paragraph 
     (4)(A)(i); or
       ``(II) on July 1, 2000 and at 5-year intervals thereafter.
       ``(ii) The procedures specified in paragraph (2) shall be 
     concluded in accordance with section 802.
       ``(5)(A) Any person who wishes to perform a sound recording 
     publicly by means of a nonexempt subscription transmission 
     under this subsection may do so without infringing the 
     exclusive right of the copyright owner of the sound 
     recording--
       ``(i) by complying with such notice requirements as the 
     Librarian of Congress shall prescribe by regulation and by 
     paying royalty fees in accordance with this subsection; or
       ``(ii) if such royalty fees have not been set, by agreeing 
     to pay such royalty fees as shall be determined in accordance 
     with this subsection.
       ``(B) Any royalty payments in arrears shall be made on or 
     before the twentieth day of the month next succeeding the 
     month in which the royalty fees are set.
       ``(g) Proceeds From Licensing of Subscription 
     Transmissions.--
       ``(1) Except in the case of a subscription transmission 
     licensed in accordance with subsection (f) of this section--
       ``(A) a featured recording artist who performs on a sound 
     recording that has been licensed for a subscription 
     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; and
       ``(B) a nonfeatured recording artist who performs on a 
     sound recording that has been licensed for a subscription 
     transmission shall be entitled to receive payments from the 
     copyright owner of the sound recording in accordance with the 
     terms of the nonfeatured recording artist's applicable 
     contract or other applicable agreement.
       ``(2) The copyright owner of the exclusive right under 
     section 106(6) of this title to publicly perform a sound 
     recording by means of a digital audio transmission shall 
     allocate to recording artists in the following manner its 
     receipts from the statutory licensing of subscription 
     transmission performances of the sound recording in 
     accordance with subsection (f) of this section:
       ``(A) 2\1/2\ percent of the receipts shall be deposited in 
     an escrow account managed by an independent administrator 
     jointly appointed by copyright owners of sound recordings and 
     the American Federation of Musicians (or any successor 
     entity) to be distributed to nonfeatured musicians (whether 
     or not members of the American Federation of Musicians) who 
     have performed on sound recordings.
       ``(B) 2\1/2\ percent of the receipts shall be deposited in 
     an escrow account managed by an independent administrator 
     jointly appointed by copyright owners of sound recordings and 
     the American Federation of Television and Radio Artists (or 
     any successor entity) to be distributed to nonfeatured 
     vocalists (whether or not members of the American Federation 
     of Television and Radio Artists) who have performed on sound 
     recordings.
       ``(C) 45 percent of the receipts shall be allocated, on a 
     per sound recording basis, to the recording artist or artists 
     featured on such sound recording (or the persons conveying 

[[Page S 11939]]
     rights in the artists' performance in the sound recordings).
       ``(h) Licensing to Affiliates.--
       ``(1) If the copyright owner of a sound recording licenses 
     an affiliated entity the right to publicly perform a sound 
     recording by means of a digital audio transmission under 
     section 106(6), the copyright owner shall make the licensed 
     sound recording available under section 106(6) on no less 
     favorable terms and conditions to all bona fide entities that 
     offer similar services, except that, if there are material 
     differences in the scope of the requested license with 
     respect to the type of service, the particular sound 
     recordings licensed, the frequency of use, the number of 
     subscribers served, or the duration, then the copyright owner 
     may establish different terms and conditions for such other 
     services.
       ``(2) The limitation set forth in paragraph (1) of this 
     subsection shall not apply in the case where the copyright 
     owner of a sound recording licenses--
       ``(A) an interactive service; or
       ``(B) an entity to perform publicly up to 45 seconds of the 
     sound recording and the sole purpose of the performance is to 
     promote the distribution or performance of that sound 
     recording.
       ``(i) No Effect on Royalties for Underlying Works.--License 
     fees payable for the public performance of sound recordings 
     under section 106(6) shall not be taken into account in any 
     administrative, judicial, or other governmental proceeding to 
     set or adjust the royalties payable to copyright owners of 
     musical works for the public performance of their works. It 
     is the intent of Congress that royalties payable to copyright 
     owners of musical works for the public performance of their 
     works shall not be diminished in any respect as a result of 
     the rights granted by section 106(6).
       ``(j) Definitions.--As used in this section, the following 
     terms have the following meanings:
       ``(1) An `affiliated entity' is an entity engaging in 
     digital audio transmissions covered by section 106(6), other 
     than an interactive service, in which the licensor has any 
     direct or indirect partnership or any ownership interest 
     amounting to 5 percent or more of the outstanding voting or 
     non-voting stock.
       ``(2) A `broadcast' transmission is a transmission made by 
     a terrestrial broadcast station licensed as such by the 
     Federal Communications Commission.
       ``(3) A `digital audio transmission' is a digital 
     transmission as defined in section 101, that embodies the 
     transmission of a sound recording. This term does not include 
     the transmission of any audiovisual work.
       ``(4) An `interactive service' is one that enables a member 
     of the public to receive, on request, a transmission of a 
     particular sound recording chosen by or on behalf of the 
     recipient. The ability of individuals to request that 
     particular sound recordings be performed for reception by the 
     public at large does not make a service interactive. If an 
     entity offers both interactive and non-interactive services 
     (either concurrently or at different times), the non-
     interactive component shall not be treated as part of an 
     interactive service.
       ``(5) A `nonsubscription' transmission is any transmission 
     that is not a subscription transmission.
       ``(6) A `retransmission' is a further transmission of an 
     initial transmission, and includes any further retransmission 
     of the same transmission. Except as provided in this section, 
     a transmission qualifies as a `retransmission' only if it is 
     simultaneous with the initial transmission. Nothing in this 
     definition shall be construed to exempt a transmission that 
     fails to satisfy a separate element required to qualify for 
     an exemption under section 114(d)(1).
       ``(7) The `sound recording performance complement' is the 
     transmission during any 3-hour period, on a particular 
     channel used by a transmitting entity, of no more than--
       ``(A) 3 different selections of sound recordings from any 
     one phonorecord lawfully distributed for public performance 
     or sale in the United States, if no more than 2 such 
     selections are transmitted consecutively; or
       ``(B) 4 different selections of sound recordings
       ``(i) by the same featured recording artist; or
       ``(ii) from any set or compilation of phonorecords lawfully 
     distributed together as a unit for public performance or sale 
     in the United States,
     if no more than three such selections are transmitted 
     consecutively:

     Provided, That the transmission of selections in excess of 
     the numerical limits provided for in clauses (A) and (B) from 
     multiple phonorecords shall nonetheless qualify as a sound 
     recording performance complement if the programming of the 
     multiple phonorecords was not willfully intended to avoid the 
     numerical limitations prescribed in such clauses.
       ``(8) A `subscription' transmission is a transmission that 
     is controlled and limited to particular recipients, and for 
     which consideration is required to be paid or otherwise given 
     by or on behalf of the recipient to receive the transmission 
     or a package of transmissions including the transmission.
       ``(9) A `transmission' includes both an initial 
     transmission and a retransmission.''.

     SEC. 4. MECHANICAL ROYALTIES IN DIGITAL PHONORECORD 
                   DELIVERIES.

       Section 115 of title 17, United States Code, is amended--
       (1) in subsection (a)(1)--
       (A) in the first sentence by striking out ``any other 
     person'' and inserting in lieu thereof ``any other person, 
     including those who make phonorecords or digital phonorecord 
     deliveries,''; and
       (B) in the second sentence by inserting before the period 
     ``, including by means of a digital phonorecord delivery'';
       (2) in subsection (c)(2) in the second sentence by 
     inserting ``and other than as provided in paragraph (3),'' 
     after ``For this purpose,'';
       (3) by redesignating paragraphs (3), (4), and (5) of 
     subsection (c) as paragraphs (4), (5), and (6), respectively, 
     and by inserting after paragraph (2) the following new 
     paragraph:
       ``(3)(A) A compulsory license under this section includes 
     the right of the compulsory licensee to distribute or 
     authorize the distribution of a phonorecord of a nondramatic 
     musical work by means of a digital transmission which 
     constitutes a digital phonorecord delivery, regardless of 
     whether the digital transmission is also a public performance 
     of the sound recording under section 106(6) of this title or 
     of any nondramatic musical work embodied therein under 
     section 106(4) of this title. For every digital phonorecord 
     delivery by or under the authority of the compulsory 
     licensee--
       ``(i) on or before December 31, 1997, the royalty payable 
     by the compulsory licensee shall be the royalty prescribed 
     under paragraph (2) and chapter 8 of this title; and
       ``(ii) on or after January 1, 1998, the royalty payable by 
     the compulsory licensee shall be the royalty prescribed under 
     subparagraphs (B) through (F) and chapter 8 of this title.
       ``(B) Notwithstanding any provision of the antitrust laws, 
     any copyright owners of nondramatic musical works and any 
     persons entitled to obtain a compulsory license under 
     subsection (a)(1) may negotiate and agree upon the terms and 
     rates of royalty payments under this paragraph and the 
     proportionate division of fees paid among copyright owners, 
     and may designate common agents to negotiate, agree to, pay 
     or receive such royalty payments. Such authority to negotiate 
     the terms and rates of royalty payments includes, but is not 
     limited to, the authority to negotiate the year during which 
     the royalty rates prescribed under subparagraphs (B) through 
     (F) and chapter 8 of this title shall next be determined.
       ``(C) During the period of June 30, 1996, through December 
     31, 1996, the Librarian of Congress shall cause notice to be 
     published in the Federal Register of the initiation of 
     voluntary negotiation proceedings for the purpose of 
     determining reasonable terms and rates of royalty payments 
     for the activities specified by subparagraph (A) during the 
     period beginning January 1, 1998, and ending on the effective 
     date of any new terms and rates established pursuant to 
     subparagraph (C), (D) or (F), or such other date (regarding 
     digital phonorecord deliveries) as the parties may agree. 
     Such terms and rates shall distinguish between (i) digital 
     phonorecord deliveries where the reproduction or distribution 
     of a phonorecord is incidental to the transmission which 
     constitutes the digital phonorecord delivery, and (ii) 
     digital phonorecord deliveries in general. Any copyright 
     owners of nondramatic musical works and any persons entitled 
     to obtain a compulsory license under subsection (a)(1) may 
     submit to the Librarian of Congress licenses covering such 
     activities. The parties to each negotiation proceeding shall 
     bear their own costs.
       ``(D) In the absence of license agreements negotiated under 
     subparagraphs (B) and (C), upon the filing of a petition in 
     accordance with section 803(a)(1), the Librarian of Congress 
     shall, pursuant to chapter 8, convene a copyright arbitration 
     royalty panel to determine and publish in the Federal 
     Register a schedule of rates and terms which, subject to 
     subparagraph (E), shall be binding on all copyright owners of 
     nondramatic musical works and persons entitled to obtain a 
     compulsory license under subsection (a)(1) during the period 
     beginning January 1, 1998, and ending on the effective date 
     of any new terms and rates established pursuant to 
     subparagraph (C), (D) or (F), or such other date (regarding 
     digital phonorecord deliveries) as may be determined pursuant 
     to subparagraphs (B) and (C). Such terms and rates shall 
     distinguish between (i) digital phonorecord deliveries where 
     the reproduction or distribution of a phonorecord is 
     incidental to the transmission which constitutes the digital 
     phonorecord delivery, and (ii) digital phonorecord deliveries 
     in general. In addition to the objectives set forth in 
     section 801(b)(1), in establishing such rates and terms, the 
     copyright arbitration royalty panel may consider rates and 
     terms under voluntary license agreements negotiated as 
     provided in subparagraphs (B) and (C). The royalty rates 
     payable for a compulsory license for a digital phonorecord 
     delivery under this section shall be established de novo and 
     no precedential effect shall be given to the amount of the 
     royalty payable by a compulsory licensee for digital 
     phonorecord deliveries on or before December 31, 1997. The 
     Librarian of Congress shall also establish requirements by 
     which copyright owners may receive reasonable notice of the 
     use of their works under this section, and under which 
     records of such use shall be kept and made available by 
     persons making digital phonorecord deliveries.
       ``(E)(i) License agreements voluntarily negotiated at any 
     time between one or more copyright owners of nondramatic 
     musical works and one or more persons entitled to 

[[Page S 11940]]
     obtain a compulsory license under subsection (a)(1) shall be given 
     effect in lieu of any determination by the Librarian of 
     Congress. Subject to clause (ii), the royalty rates 
     determined pursuant to subparagraph (C), (D) or (F) shall be 
     given effect in lieu of any contrary royalty rates specified 
     in a contract pursuant to which a recording artist who is the 
     author of a nondramatic musical work grants a license under 
     that person's exclusive rights in the musical work under 
     sections 106(1) and (3) or commits another person to grant a 
     license in that musical work under sections 106(1) and (3), 
     to a person desiring to fix in a tangible medium of 
     expression a sound recording embodying the musical work.
       ``(ii) The second sentence of clause (i) shall not apply 
     to--
       ``(I) a contract entered into on or before June 22, 1995, 
     and not modified thereafter for the purpose of reducing the 
     royalty rates determined pursuant to subparagraph (C), (D) or 
     (F) or of increasing the number of musical works within the 
     scope of the contract covered by the reduced rates, except if 
     a contract entered into on or before June 22, 1995, is 
     modified thereafter for the purpose of increasing the number 
     of musical works within the scope of the contract, any 
     contrary royalty rates specified in the contract shall be 
     given effect in lieu of royalty rates determined pursuant to 
     subparagraph (C), (D) or (F) for the number of musical works 
     within the scope of the contract as of June 22, 1995; and
       ``(II) a contract entered into after the date that the 
     sound recording is fixed in a tangible medium of expression 
     substantially in a form intended for commercial release, if 
     at the time the contract is entered into, the recording 
     artist retains the right to grant licenses as to the musical 
     work under sections 106(1) and 106(3).
       ``(F) The procedures specified in subparagraphs (C) and (D) 
     shall be repeated and concluded, in accordance with 
     regulations that the Librarian of Congress shall prescribe, 
     in each fifth calendar year after 1997, except to the extent 
     that different years for the repeating and concluding of such 
     proceedings may be determined in accordance with 
     subparagraphs (B) and (C).
       ``(G) Except as provided in section 1002(e) of this title, 
     a digital phonorecord delivery licensed under this paragraph 
     shall be accompanied by the information encoded in the sound 
     recording, if any, by or under the authority of the copyright 
     owner of that sound recording, that identifies the title of 
     the sound recording, the featured recording artist who 
     performs on the sound recording, and related information, 
     including information concerning the underlying musical work 
     and its writer.
       ``(H)(i) A digital phonorecord delivery of a sound 
     recording is actionable as an act of infringement under 
     section 501, and is fully subject to the remedies provided by 
     sections 502 through 506 and section 509, unless--
       ``(I) the digital phonorecord delivery has been authorized 
     by the copyright owner of the sound recording; and
       ``(II) the owner of the copyright in the sound recording or 
     the entity making the digital phonorecord delivery has 
     obtained a compulsory license under this section or has 
     otherwise been authorized by the copyright owner of the 
     musical work to distribute or authorize the distribution, by 
     means of a digital phonorecord delivery, of each musical work 
     embodied in the sound recording.
       ``(ii) Any cause of action under this subparagraph shall be 
     in addition to those available to the owner of the copyright 
     in the nondramatic musical work under subsection (c)(6) and 
     section 106(4) and the owner of the copyright in the sound 
     recording under section 106(6).
       ``(I) The liability of the copyright owner of a sound 
     recording for infringement of the copyright in a nondramatic 
     musical work embodied in the sound recording shall be 
     determined in accordance with applicable law, except that the 
     owner of a copyright in a sound recording shall not be liable 
     for a digital phonorecord delivery by a third party if the 
     owner of the copyright in the sound recording does not 
     license the distribution of a phonorecord of the nondramatic 
     musical work.
       ``(J) Nothing in section 1008 shall be construed to prevent 
     the exercise of the rights and remedies allowed by this 
     paragraph, paragraph (6), and chapter 5 in the event of a 
     digital phonorecord delivery, except that no action alleging 
     infringement of copyright may be brought under this title 
     against a manufacturer, importer or distributor of a digital 
     audio recording device, a digital audio recording medium, an 
     analog recording device, or an analog recording medium, or 
     against a consumer, based on the actions described in such 
     section.
       ``(K) Nothing in this section annuls or limits (i) the 
     exclusive right to publicly perform a sound recording or the 
     musical work embodied therein, including by means of a 
     digital transmission, under sections 106(4) and 106(6), (ii) 
     except for compulsory licensing under the conditions 
     specified by this section, the exclusive rights to reproduce 
     and distribute the sound recording and the musical work 
     embodied therein under sections 106(1) and 106(3), including 
     by means of a digital phonorecord delivery, or (iii) any 
     other rights under any other provision of section 106, or 
     remedies available under this title, as such rights or 
     remedies exist either before or after the date of enactment 
     of the Digital Performance Right in Sound Recordings Act of 
     1995.
       ``(L) The provisions of this section concerning digital 
     phonorecord deliveries shall not apply to any exempt 
     transmissions or retransmissions under section 114(d)(1). The 
     exemptions created in section 114(d)(1) do not expand or 
     reduce the rights of copyright owners under section 106(1) 
     through (5) with respect to such transmissions and 
     retransmissions.''; and
       (5) by adding after subsection (c) the following:
       ``(d) Definition.--As used in this section, the following 
     term has the following meaning: A `digital phonorecord 
     delivery' is each individual delivery of a phonorecord by 
     digital transmission of a sound recording which results in a 
     specifically identifiable reproduction by or for any 
     transmission recipient of a phonorecord of that sound 
     recording, regardless of whether the digital transmission is 
     also a public performance of the sound recording or any 
     nondramatic musical work embodied therein. A digital 
     phonorecord delivery does not result from a real-time, 
     noninteractive subscription transmission of a sound recording 
     where no reproduction of the sound recording or the musical 
     work embodied therein is made from the inception of the 
     transmission through to its receipt by the transmission 
     recipient in order to make the sound recording audible.''.

     SEC. 5. CONFORMING AMENDMENTS.

       (a) Definitions.--Section 101 of title 17, United States 
     Code, is amended by inserting after the definition of 
     ``device'', ``machine'', or ``process'' the following:
       ``A `digital transmission' is a transmission in whole or in 
     part in a digital or other non-analog format.''.
       (b) Limitations on Exclusive Rights: Secondary 
     Transmissions.--Section 111(c)(1) of title 17, United States 
     Code, is amended in the first sentence by inserting ``and 
     section 114(d)'' after ``of this subsection''.
       (c) Limitations on Exclusive Rights: Secondary 
     Transmissions of Superstations and Network Stations for 
     Private Home Viewing.--
       (1) Section 119(a)(1) of title 17, United States Code, is 
     amended in the first sentence by inserting ``and section 
     114(d)'' after ``of this subsection''.
       (2) Section 119(a)(2)(A) of title 17, United States Code, 
     is amended in the first sentence by inserting ``and section 
     114(d)'' after ``of this subsection''.
       (d) Copyright Arbitration Royalty Panels.--
       (1) Section 801(b)(1) of title 17, United States Code, is 
     amended in the first and second sentences by striking ``115'' 
     each place it appears and inserting ``114, 115,''.
       (2) Section 802(c) of title 17, United States Code, is 
     amended in the third sentence by striking ``section 111, 116, 
     or 119,'' and inserting ``section 111, 114, 116, or 119, any 
     person entitled to a compulsory license under section 114(d), 
     any person entitled to a compulsory license under section 
     115,''.
       (3) Section 802(g) of title 17, United States Code, is 
     amended in the third sentence by inserting ``114,'' after 
     ``111,''.
       (4) Section 802(h)(2) of title 17, United States Code, is 
     amended by inserting ``114,'' after ``111,''.
       (5) Section 803(a)(1) of title 17, United States Code, is 
     amended in the first sentence by striking ``115'' and 
     inserting ``114, 115'' and by striking ``and (4)'' and 
     inserting ``(4) and (5)''.
       (6) Section 803(a)(3) of title 17, United States Code, is 
     amended by inserting before the period ``or as prescribed in 
     section 115(c)(3)(D)''.
       (7) Section 803(a) of title 17, United States Code, is 
     amended by inserting after paragraph (4) the following new 
     paragraph:
       ``(5) With respect to proceedings under section 801(b)(1) 
     concerning the determination of reasonable terms and rates of 
     royalty payments as provided in section 114, the Librarian of 
     Congress shall proceed when and as provided by that 
     section.''.

     SEC. 6. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall take 
     effect 3 months after the date of enactment of this Act, 
     except that the provisions of sections 114(e) and 114(f) of 
     title 17, United States Code (as added by section 3 of this 
     Act) shall take effect immediately upon the date of enactment 
     of this Act.
     

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